Karnataka High Court
Mallikarjun vs Kalyani on 27 August, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL No.2457/2006
BETWEEN:
Mallikarjun S/o Basavanappa Dhule
Age: about 45 years, Occ: Agriculture,
R/o Village Kini Sultan Tq: Aland
Dist:Gulbarga
.... APPELLANT
(By Sri Sharanbasappa K.Babshetty, Advocate)
AND:
Kalyani S/o Sharnappa Dhule
Age: 50 Years Occ: Agriculture
R/o Village Kini Sultan, Tq: Aland
Dist: Gulbarga
... RESPONDENT
(By Sri Ameet Kumar Deshpande Advocate)
This Regular Second Appeal is filed under Section
100 of Code of Civil Procedure praying to allow this
second appeal and set aside the judgment and decree
passed by Civil Judge (Sr.Dn.) Aland in R.A.
No.29/2006 dated: 12-07-2006 and restore the
Judgment and decree dated: 03-04-2006 passed by
Addl. Civil Judge (Jr.Dn.) Aland in O.S. No.254/2002 in
the interest of justice and equity.
This Regular Second Appeal having heard is coming on
for Dictating Judgment this day, the Court delivered the
following;
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JUDGMENT
1. This appeal arises out of the Judgment and decree passed in R.A.No.29/2006 by Civil Judge (Sr.Dn.) Aland dated: 12-07-2006 wherein, the First Appellate Court has allowed the appeal and set-aside the judgment and decree passed by the trial Court in O.S.No.254/2002, wherein, the trial Court had dismissed the suit of the plaintiff.
2. This appeal was filed by the appellant who was the defendant and the respondent was the plaintiff before the trial court.
3. For the purpose of clarity and convenience and to avoid repetition of discussion, the parties are referred in this Judgment as per their respective ranks before the Trial Court.
4. The plaintiff has filed suit in O.S. No.254/2002 contending that, the northern wall of his 3 house No.1/96 facing East to West direction is his exclusive wall and for declaration that, there is a 6 feet lane adjacent to the northern wall and relief of injunction restraining the defendant from making any permanent construction touching the wall. The plaintiff has contended that, there are two windows and two waterspouts, one drainage are existing in the said wall since 50 years. Since that, time rain water and drain water is passing through the suit lane. He is enjoying light and air through the windows situated in the said northern wall of his house. It is his exclusive wall. The defendant has no concern with the suit wall and lane. The defendant being the adjacent owner is trying to put up construct and the panchayat authorities colluding with him granted construction permission to the defendant and if any construction is made the plaintiff will be put to inconvenience. Hence the plaintiff prays to decree the suit.
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5. The defendant appeared before the trial court and filed written statement. In the written statement he has denied the existence suit lane at the northern wall of the plaintiff's house. The defendant has specifically denied existence of windows, waterspouts and mori in the northern wall of plaintiff's house. The defendant has contended that, the suit northern wall of plaintiff's house is common wall between him and plaintiff. The Secretary has granted permission to him to construct the house measuring east -west 40 feet and north - south 30 feet. The rain and drain water of plaintiff's house passes through the common drainage as shown in the hand sketch map. The defendant has specifically denied the other allegations of the plaintiff. The defendant now has demolished his house to construct new, by that time the plaintiff has changed his mind and started for obstruction to construct the same. Hence with these main grounds the defendant has prayed to dismiss the suit of the plaintiff with costs. 5
6. On the basis of the pleadings of the parties, the Trial Court has framed the following issues:
i. Whether the plaintiff proves that, he is absolute owner of the suit schedule property?
ii. Whether the plaintiff proves that, he is in possession of the suit schedule property as on the date of the suit?
iii. Whether the plaintiff further proves that, the defendant caused interference pertaining to the suit schedule property iv. Whether the plaintiff is entitled for relief as sought ?
v. What order of decree?
7. The plaintiff examined himself as PW.1, two witnesses as PW.2 & PW.3 and got marked eight documents Exs.P.1 to P.8 & Ex.P.8(c). Defendant examined himself as DW.1, two witnesses as DW.2 and DW.3 and got marked two Exs.D1 & D2 & D2(a). 6
8. The Trial Court after considering the evidence and material on record has dismissed the suit of the plaintiff.
9. Being aggrieved by the said judgment, the plaintiff has preferred an appeal in R.A.No.29/2006 before the Civil Judge (Sr.Dn.) Aland. The First Appellate Court has re-looked into the matter after hearing both sides has allowed the Appeal filed by the plaintiff and reversed the finding of the trial court and in fact, decreed the suit of the plaintiff. It is ordered and decreed that, the plaintiff is an absolute owner of the northern East-West wall of house of plaintiff. It is further ordered and decreed by declaring that, there is a 3 feet land as described in plaint sketch A.B adjacent to the northern wall of the plaintiff's house in existence for better use and enjoyment of both plaintiff and defendant for their respective houses including use of air and light. It is further ordered and decreed that the 7 defendant is hereby restrained permanently not to put up any construction on the 3 feet lane existing in between the northern side of the plaintiff's house and southern side of the defendant's property by granting a decree of perpetual injunction.
10. Being aggrieved by the said Judgment in R.A. No.29/2006 the appellant/defendant has filed this appeal on the following grounds:
That the Judgment and decree of the First Appellate Court is illegal and against the facts and circumstances of the case. The plaintiff has admitted that, there is no lane and there is no any existing windows and on the western side of the plaintiff's house there is house of Madhuraya who is uncle of the plaintiff. He is not made party to the suit. The contents of Ex.D.2 and the admission given by the plaintiff is tallied to each other, but the First Appellate Court has not raised this point in discussion. As per sale deed 8 Ex.D.2 it is clear that there is house of Madhuraya and Sharanappa and the plaintiff has signed on the sale deed Ex.D.2 as witness No.2. Hence the existence of northern portion of suit land does not arise. The plaintiff has claimed 6 feet lane, but the defendant has denied the common wall. The First Appellate Court declared that there is a 3 feet lane which is not claimed by the plaintiff. Ex.D.2 clearly reveals that, there is common wall. The witnesses PW.2 and PW.3 have admitted that the defendants were having open space towards north of the suit property. The said open space belonging to the defendant's ancestors. The said evidence clearly discloses that, the plaintiff's suit wall is common wall. With these main grounds he prayed to set aside the impugned Judgment and decree of the First Appellate Court.
11. On 08-02-2008 this court has framed the substantial question of law as under: 9
'Whether the Lower Appellate Court was justified in granting declaration as prayed for without the plaintiff producing the document of title showing his title to the property?
12. Heard learned counsel Sri.Sharanbasappa K.Babshetty physically for appellant and Sri.Ameet Kumar Deshpande learned counsel for respondent through video conference.
13. Sri.Sharanabasappa K.Babshetty learned counsel for appellant argued that the first appellate court has wrongly held that there is a lane and the common wall. The substantial question of law raised in this case is about title. So without producing the documents regarding title the first appellate court has held that, the plaintiff is owner of suit lane of northern side of wall of the house of the plaintiff. The defendant sale deed clearly indicates that he is owner to the extent of southern side of the house of this plaintiff. Though the trial court has clearly discussed the evidence of both 10 the sides and appreciated the evidence in proper perspective but the first appellate court without considering the evidence only based on the facts has allowed the appeal and prays to allow this appeal.
14. Against this learned counsel for respondent has argued that, the ownership of right need not be proved from the documents only this property belongs to the ancestor of this plaintiff and it was standing in the name of father of the plaintiff. The father of plaintiff died long back, but the trial court wrongly considered that the father of the plaintiff was not made as a party and refused to give declaration which is not proper. In fact there is no issue regarding non joinder of necessary parties, the said father cannot be made as party as he is no more. The plaintiff being the only son is the owner of the said property he has produced document in respect of the suit properties.
Further the learned counsel for the respondent has 11 argued that, the photos produced by both the plaintiff and defendant indicates that there are windows, parnalas and moris towards the northern wall of the plaintiff's house. The said house is in existence for a long time. The said wall is a big wall and it is not that the same is constructed recently. Those windows, parnalas and mori were in existence for a long time. The said water spouts are their in existence and the rain water fell on the northern side. Now the defendant under the guise of construction is trying to obstruct the said use of water spout, windows and mori. Even he has obtained permission from the Panchayat authorities. So without any remedy the plaintiff has filed this suit, but the trial court dismissed the suit of the plaintiff though there is evidence to show regarding use of the said windows and mori and the said wall is a common wall. Further the learned counsel argued that, the Judgment passed by the trial court is just, proper and needs no interference.
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15. I have perused the Judgment of the trial court, first appellate court, evidence and the documents produced by both the parties. The substantial question of law framed in this case is :
"Whether the lower appellate court was justified in granting declaration as prayed for without the plaintiff producing the document of title showing his title to the property"?
16. In fact in the operative portion of first appellate court is considered, then it is evident that, first appellate court has declared that the plaintiff is an absolute owner of the northern East-West wall of house of plaintiff. It is also held that, there is 3 feet lane as described in plaint sketch A.B. adjacent to the northern wall of the plaintiff's house in existence for better use and enjoyment of both plaintiff and defendant for their respective houses including for air and light. It has restrained the defendant from putting up any construction on the said 3 feet lane existing in between 13 the northern side of the plaintiff's house and southern side of the defendant's property.
17. Ofcourse regarding title to the property i.e., northern east-west wall it is admitted by the defendant. Even the defendant has produced one document which is called as sale deed Ex.D.2. Ofcourse that sale deed is not a registered sale deed which is in Marathi language, its translation is also produced. The said document though not registered it appears some stamp duty is collected by the trial court. It is admitted that, the document also indicates that there is a wall belonging to the father of the plaintiff by name Sharanappa Dhule. The plaintiff has produced some tax paid receipts and he has produced photos at Ex.P.5, Ex.P.6, Ex.P.7 & Ex.P.8. These photos indicates that the building of the plaintiff is old building and the northern wall is very high wall and there are windows and moris appear in the said photos and the said wall is built with stones. 14 Even Ex.D.2 the photo produced by the plaintiff also indicates the same. It appears that the defendant has put up some hut there and now he intend to make construction. The first appellate court has clearly discussed regarding northern side wall of the house of the plaintiff which is running East -West is exclusive wall. The first appellate court at paragraph Nos.16 & 17 of the Judgment has discussed the evidence wherein the defendant himself has admitted that, the plaintiff is the owner and in possession of the suit house bearing No.1-96 and only denial of the defendant is in respect of 6 feet lane along with northern wall of the plaintiff's house. The map is also produced along with plaint. It is the contention of the defendant that, the said wall is a common wall. The first appellate court has clearly discussed the document in the photos and the nature of the wall which clearly indicates that there are parnalas, moris and water spouts and the rain water flows on the northern side of the house of the plaintiff's wall. There 15 are two small windows which appears in Ex.P.8. Even in Ex.D.2 there is mention of existence of wall and in the document Ex.D.2 it is clearly mentioned that the house of one Madhuraya is existing. So based on those documents which is admitted by defendant also the first appellate court has come to the conclusion that northern wall of the plaintiff's house is exclusive wall of the plaintiff. In fact the first appellate court has also discussed what will be the nature of the common wall, how it will be constructed, what are the features of the common wall. But here in this wall there are no such features to show that it is a common wall. In fact witness for defendant DW.3 has also admitted about this aspect.
18. It is the contention of the plaintiff that during earth-quake in the year 1993 he has permitted the defendant to put up a temporary tin shed and now the defendant intend to construct the building by 16 demolishing the said hut which will affect the use and enjoyment of flow of water from the northern wall and also obstruct the windows. The first appellate court has discussed the evidence of PW.s 1, 2 & 3 and suggestions made to them. It is not defense of the defendant at all. In fact the defendant also admitted the photos produced by the plaintiff. The first appellate court has discussed how the evidence is to be appreciated and as the defendant has obtained construction permission under Karnataka Gram Panchayat Rules 1994 of Erection of Building as per Rule 6 the first appellate court has observed at paragraph No.23 that, as per the said Rule it is mandatory on the part of the defendant to leave atleast 3 feet towards northern side of the defendant's property and northern side house of the plaintiff's property and the first appellate court has referred Rule 6 of the Karnataka Gram Swaraj and Panchayat Raj Act 1994 which reads as under:
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6. Conditions to be imposed: (1) Within the boundary of every site on which a building is to be erected, there shall be provided and maintained, a minimum margin of three feet of open space of the two sides and the rear and four feet in the front.
19. The first appellate court has clearly observed at paragraph No.24 of the Judgment that, because of the reason to give justice to the parties and to avoid future litigation and also for good relationship between the neighbors the first appellate court passed the said order. It is also observed and evident that, both the plaintiff and defendant are distant relatives and cousin brothers. So for better relationship in future it is a fit case to grant decree to keep 3 feet lane in between the plaintiff and defendant's property instead of 6 feet lane.
Admittedly the plaintiff has constructed his house about 50 years old. He is enjoying air and light. He is also required to carry out repair work and enjoy on northern side of wall. So keeping all these things and considering the evidence of the plaintiff and witnesses and 18 defendant the first appellate court has granted decree for 3 feet lane reserving right to defendant to use and enjoy the same. So it has answered the said point in affirmative. The wall of the plaintiff itself more than 30 feet height and width about 18 feet height. Therefore for better use and enjoyment of the said the first appellate court has passed the final order which reads as under:
ORDER "It is further ordered and decreed, the suit of the plaintiff as follows:
It is ordered and decreed by declaring that the plaintiff is an absolute owner of the northern East-West wall of house of plaintiff.
It is further ordered and decreed by declaring that, there is a 3 feet lane as described in plaint sketch A.B adjacent to the northern wall of the plaintiff's house in existence for better use and enjoyment of 19 both plaintiff and defendant for their respective houses including for air and light.
It is further order and decreed, the defendant is hereby restrained permanently not to put up any construction on the 3 feet lane existing in between the northern side of the plaintiff's house and southern side of the defendant's property by granting a decree of perpetual injunction".
Therefore, considering the Judgment of the trial court, first appellate court, pleading and evidence of both the parties, it is evident that, the trial court has wrongly dismissed the suit. But the first appellate court to put an end to the litigation has passed an order which is quite reasonable and it will not cause any injustice to any of the parties. Therefore, the substantial question of law is answered in the 20 affirmative that the first appellate court is justified in granting decree.
Accordingly I pass the following:
ORDER The Regular Second Appeal is dismissed. The Judgment and decree passed by the Civil Judge (Sr.Dn.) Aland in Regular Appeal No.29/2006 dated: 12-07-2006 is hereby confirmed.
The parties are directed to bear their own costs. Send back the secured records to the concerned courts forthwith.
Sd/-
JUDGE MNS.