Karnataka High Court
Mohd Mujeeb Ahmed Khan S/O Abdul Fateh ... vs Mohd Fazalur Rahman S/O Md. Abdul Rahman ... on 6 December, 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.200003/2014 (DEC)
BETWEEN:
MOHD. MUJEEB AHMED KHAN
SINCE DECEASED
1. TAQIYA BEGUM
W/O MOHD. MUJEEB AHMED KHAN
AGE:60 YEARS, OCC:HOUSEHOLD
R/O H.NO.2-2-138, TALEEM SIDDIQUE
SHAH BIDAR
2. MOHMMED BADE-UZ-ZAMA KHAN
S/O MOHD. MUJEEB AHMED KHAN
AGE: 34 YEARS, OCC:BUSINESS
R/O H.NO.2-2-138 TALEEM SIDDIQUE
SHAH BIDAR
3. DILAWAIZ FATIMA ISHANAM
D/O MOHD. MUJEEB AHMED KHAN
W/O TARIQ SHABIBI
AGE:30 YEARS, OCC:HOUSEHOLD
R/O H.NO.9-4-135/A/18, FLAT NO.401
SALMAT RESIDENCY RAGHAV COLONY
OPP: WEBSTER SCHOOL
TOLI CHOWKI
HYDERABAD - 500008
... APPELLANTS
(BY SRI.SHIVANAND PATIL, ADVOCATE)
AND:
2
1. MOHD. FAZALUR RAHMAN
S/O MD. ABDUL RAHMAN
AGE:55 YEARS, OCC:PRIVATE SERVICE
2. ABDUL KHALEEL
S/O MD. ABDUL RAHMAN
AGE:53 YEARS
OCC: SERVICE
BOTH ARE R/O SIDDI
TALEEM
BIDAR
... RESPONDENTS
(SRI.AJAY KUMAR A.K., ADVOCATE FOR R.1 & R.2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 31.08.2013
PASSED IN R.A.NO.22/2012 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE & CJM, BIDAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 27.02.2012 PASSED IN O.S.NO.110/2007 ON THE
FILE OF THE II ADDITIONAL CIVIL JUDGE AT BIDAR.
THIS RSA IS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the defendant feeling aggrieved by the concurrent findings of the Courts below, wherein the plaintiff's suit seeking relief of mandatory injunction is decreed by both Courts and defendant is directed to remove the construction made by him in area measuring 4' x 25' over the suit passage. Consequently, the defendant is restrained from putting up 3 any construction over the suit passage and thereby causing interference.
2. For the sake brevity, the parties are referred as they are ranked before the Trial Court.
3. The plaintiffs filed a suit by contending that original plaintiff is the owner of residential house bearing Municipal No.2-139 and that defendant is the owner of the house property bearing Municipal No.2-2-138. The plaintiffs contended that there is a common passage on the northern side of their residential house measuring east to west 8 feet (width) and north to south 96 feet (length), which connects to the main road. The plaintiffs specifically pleaded that suit land is a common passage between the plaintiffs and defendant and one Zakiya Begum and Shaik Mohammed. The plaintiff further specifically pleaded that original plaintiff namely Aleema Bee is using the said passage for more than 100 years alleging that the defendants have illegally put up construction and has refused to remove the illegal construction, the present suit is filed.
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4. On receipt of summons, the defendant appeared and filed written statement and stoutly denied that plaintiff is the owner of the property bearing Municipal No.2-2-139. The defendant seriously disputed the existence of common passage as alleged by the plaintiffs. The defendant contended that open passage in front of the house of the defendant's house towards eastern side, is the family graveyard of the defendant and there is also mosque and therefore, the plaintiffs are not entitled to use the common open space, which is alleged to be a common passage. The defendant also contended that abutting open space towards northern side of the graveyard, there is a property owned by defendant and his brothers and therefore, seriously disputed the right of the plaintiffs to use the alleged common passage as indicated in the sketch. The defendant has also specifically pleaded that he has constructed the ground floor in the year 1992 and first floor in the year 2005. On these grounds, the defendant sought for dismissal of the suit.
5. Plaintiffs and defendant have lead oral and documentary evidence to substantiate their respective claim.
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6. The Trial Court having examined the oral and documentary evidence lead in by both the Courts answered issue No.2 in the affirmative and held that the plaintiffs have succeeded in establishing the existence of passage and that she has no other way to reach the main road from her house. The Trial Court has also held that the defendant has put up illegal construction by encroaching over the open space i.e., common passage measuring 4x25 feet. Therefore, on these set of reasonings, the Trial Court proceeded to hold that the plaintiffs are entitled to seek removal of construction made by the defendant by way of mandatory injunction.
7. Feeling aggrieved by the judgment and decree of the Trial Court, the defendant preferred an appeal before the Appellate Court.
8. The Appellate Court having independently assessed the oral and documentary evidence has also come to the conclusion that the plaintiff has succeeded in proving the existence of common passage. The Appellate Court has also come to the conclusion that all the habitants and residents in the locality including the 6 plaintiffs are using the common passage so as to approach the main road. Therefore, proceeded to dismiss the appeal by holding that the plaintiffs have succeeded in proving the existence of common passage as well as the alleged encroachment made by the defendant. These concurrent findings are under challenge.
9. This Court vide order dated 01.12.2022 was pleased to admit the appeal on the following substantial question of law.
Whether both Courts erred in granting discretionary relief of mandatory injunction ignoring the fact that defendant has specifically pleaded at para No.15 of the written statement that he has put up construction on the ground floor in the year 1992 and first floor in the year 2005, while suit seeking relief of mandatory injunction is filed on 01.07.2007. Therefore, the judgment and decree of the Courts below in granting relief of mandatory injunction suffers from serious perversity and same is also contrary to the categorical admissions elicited in the cross-examination of the plaintiff, who has admitted in unequivocal terms that defendant has constructed ground floor in the year 1992 and therefore, plaintiff 7 cannot maintain suit for mandatory injunction under Article 113 of Limitation Act?
10. Heard learned counsel appearing for the defendant and learned counsel appearing for the plaintiffs.
11. This matter was heard at length and this Court granted several adjournments to enable the parties to arrive at amicable settlement since the relief of mandatory injunction is sought.
12. Learned counsel appearing for the defendant along memo dated 06.12.2022 has furnished the sketch and under the sketch, the defendant has depicted the existence of common passage having width of 7.1' x 96' and the same extends still to the main road.
13. The learned counsel appearing for the plaintiffs has strongly opposed the sketch furnished by the defendant. However, this Court has to balance the equities and also rights of both parties. If the evidence on record is looked into, this Court would find that the plaintiffs suit seeking relief of mandatory injunction is not maintainable under Article 113 of the Limitation Act. 8
14. Though this Court has admitted the second appeal to consider the relief of mandatory injunction under Article 113 of the Limitation Act, in view of unconditional undertaking given by the defendant admitting the existence of common passage having width of 7.1 feet x 96 feet in length, this Court is of the view that defendant is entitled to protect his property even if they have encroached marginally over the common passage. The defendant has also furnished on record the sketch and photographs.
15. Though the materials on record indicates that the plaintiffs have waived off their rights by not approaching immediately as the evidence on record clearly indicates that ground floor was constructed in the year 1992, while first floor was constructed in the year 2005, however, the construction made on the first floor clearly shows the violation of building by-laws. The first floor in fact extents beyond the ground floor and therefore, the encroachment as determined by both Courts to the extent of 4 x 25 feet in width appears to be proper. 9
16. Having given anxious consideration to the plaintiffs right to have access to the suit common passage and also right of the defendant on account of acquiescene, I am of the view that the decree granted by the Courts below requires a slight modification. If defendants are willing to provide as 7.1 width passage so as to enable the plaintiffs to have access to the main road, this Court is of the view that no prejudice would cause to the plaintiffs if the demolition of the encroached portion is declined. It is made clear that the defendant shall not further encroach or interfere with the suit common passage, which is now shown to be having width of 7.1' feet and 96 feet in length.
17. It is made clear that the width now reflected in the memo shall not be further reduced by any illegal acts of the defendant. The memo submitted by the defendant is taken on record. Accordingly, the substantial question of law is answered partly in affirmative. The relief of mandatory injunction stands rejected.
18. For the foregoing reasons, I pass the following; 10
ORDER The second appeal filed by the defendant is allowed in part.
The relief of mandatory injunction is rejected.
It is declared that plaintiffs are entitled to use the suit passage as a common passage having width of 7.1 feet and length of 96 feet. The defendant is hereby restrained from putting up any construction in the existing common passage having width of 7.1 feet and length of 96 feet.
Draw decree accordingly.
Sd/-
JUDGE NBM