Karnataka High Court
Naseemabanu W/O Mohammadisak Kunabi vs Jaheerahmad S/O Kwazahusain Rotiwale on 3 November, 2023
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NC: 2023:KHC-D:12905
MSA No. 100126 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
MISCELLANEOUS SECOND APPEAL NO.100126 OF 2017
(RO)
BETWEEN:
NASEEMABANU W/O. MOHAMMADISAK KUNABI,
AGED ABOUT: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: FAKIRAGALLI, MANIKILLA, DHARWAD.
...PETITIONER
(BY MISS. SHIVALEELA ARAHUNASI, ADVOCATE FOR
SRI. ARAVIND D. KULKARNI, ADVOCATE)
AND:
JAHEERAHMAD S/O. KWAZAHUSAIN ROTIWALE,
AGE ABOUT 53 YEARS, OCC: SERVICE,
R/O: FAKIRAGALLI, MANIKILLA, DHARWAD.
...RESPONDENT
Digitally
signed by
VISHAL (BY SRI. G. S. SAVADATTI, ADVOCATE)
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date: THIS MISCELLANEOUS SECOND APPEAL IS FILED U/SEC. 104
2023.11.10
11:22:43 READ WITH ORDER 43 RULE 1(u) OF CPC,. 1908, AGAINST THE
+0530 JUDGMENT AND DECREE DTD: 17.07.2017 PASSED IN R.A.NO.
83/2016 ON THE FILE OF THE IV-ADDITIONAL SENIOR CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, DHARWAD, ALLOWING
THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD:
01.07.2016 PASSED IN O.S.NO. 320/2010, ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
DHARWAD, DISMISSING THE SUIT FILED FOR PERMANENT
INJUNCTION AND MANDATORY INJUNCTION.
THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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NC: 2023:KHC-D:12905
MSA No. 100126 of 2017
JUDGMENT
The present miscellaneous second appeal by the defendant assailing the order dated 17.07.2017 in R.A.No.83/2016 on the file of the IV Additional Senior Civil Judge and JMFC, Dharwad, whereby, the appeal preferred by the plaintiff was allowed and the matter was remitted back to the Trial Court for fresh consideration in accordance with law.
2. Brief facts of the case are that the plaintiff- respondent initiated a suit in O.S No. 320/2010 for permanent and mandatory injunction contending that the plaintiff is the owner and possessor of CTS No.486/M measuring 90 Sq. yards and the defendant is in possession of CTS No.483/M on the eastern side of the plaintiff's property. It is contended that the defendant, while putting up construction without leaving a setback, came close to the plaintiff's eastern side window and though the request was made by the plaintiff to the defendant, the defendant -3- NC: 2023:KHC-D:12905 MSA No. 100126 of 2017 has not heeded to the request and hence, the suit seeking permanent injunction came to be filed.
3. Pursuant to the suit summons issued by the Trial Court, the defendant appeared and filed written statement, admitting that the plaintiff is the owner of CTS No.486/M and the defendant is the owner of CTS No. 483/M. However, regarding the non-obtaining of permission for construction from HDMC and not leaving setback, was specifically denied by the defendant. It is contended by the defendant that there is no violation of the building permission and after availing necessary permission, the construction of the building has been carried out.
4. The Trial Court on the basis of the pleadings, framed the following issues:
"1. Whether the plaintiff proves the correct and proper description of the suit schedule property?
2. Whether the plaintiff proves that, the defendant has illegally constructed the wall adjacent to plaintiffs house eastern wall without leaving set back -4- NC: 2023:KHC-D:12905 MSA No. 100126 of 2017 and in violation of the rules and regulations of K.M.C Act, 1976?
3. Whether defendant proves that, the suit of the plaintiff is not maintainable as contended in written statement?
4. Whether plaintiff is entitled for the relief of permanent injunction?
5. What order or decree?
Addl. Issue No.1: Whether the plaintiff proves that, defendant is trying to construct her wall touching the plaintiff's eastern wall so as to close the alleged window in his eastern wall and that the defendant has not left setback area between both properties that of himself and the defendant?
ADDL ISSUES
1. Whether the plaintiff proves that, defendant has illegally constructed wall during pendency of this suit, aborting to plaintiffs, eastern wall thereby closed his window?
2. Whether the plaintiff proves that, he is entitled for the relief of mandatory injunction for demolition of the said wall?"
5. In order to substantiate the claim, plaintiff examined himself as P.W.1 and two witnesses as P.W.2 and P.W.3 and got marked documents at Exs.P.1 to P.7. -5-
NC: 2023:KHC-D:12905 MSA No. 100126 of 2017 On the other hand, defendant examined herself as D.W.1 and got marked documents at Exs.D.1 to D.9.
6. The Trial Court, by its judgment and decree dismissed the suit of the plaintiff.
7. Aggrieved by the same, the plaintiff preferred the appeal before the First Appellate Court in R.A. No.26/2013. The First Appellate Court allowed the appeal and remanded the matter with a direction to the Trial Court to give opportunity to both the parties to lead their evidence. On remand, again the Trial Court framed two additional issues and dismissed the suit of the plaintiff. Aggrieved by the same, the plaintiff preferred the appeal before the First Appellate Court in R.A. No.83/2016. The First Appellate Court, while re-appreciating the entire oral and documentary evidence, held that since the Trial Court had not considered and answered additional issue No.1, which was treated as a preliminary issue, it felt it appropriate to remit the matter to the Trial Court for fresh -6- NC: 2023:KHC-D:12905 MSA No. 100126 of 2017 consideration, directing the Trial Court to consider additional issue No.1, in accordance with the law.
8. Aggrieved by the order of remand, the present appeal has been preferred by the defendant.
9. Heard Miss. Shivaleela Arahunasi, learned counsel appearing on behalf of Sri. Aravind D. Kulkarni, learned counsel for the appellant and Sri. G.S. Savadatti, learned counsel for the respondent and perused the material on record.
10. Learned counsel for the appellant would contend that this is a second round of litigation, and on an earlier occasion, the First Appellate Court had remanded the matter to the Trial Court and the Trial Court, on re- appreciation and considering the material on record, had dismissed the suit. The remand of the matter by the First Appellate Court again for reconsideration by the Trial Court, is not justifiable. Learned counsel for the appellant would contend that the order of remand on the face of it is -7- NC: 2023:KHC-D:12905 MSA No. 100126 of 2017 not sustainable and needs to be interfered with by this Court.
11. Per contra, learned counsel for the respondent justifies the order of remand by the First Appellate Court and would contend that the same does not call for any interference by this Court.
12. This Court, on 10.08.2018 admitted the miscellaneous second appeal, however, no substantial question of law has been framed by this Court.
13. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
14. The undisputed facts are that the plaintiff and defendant are neighbors. The plaintiff sought to contend that the defendant, without obtaining permission from HDMC, has been trying to put up the construction by violating the zonal regulations and without leaving a setback. The defendant has completed his constructions -8- NC: 2023:KHC-D:12905 MSA No. 100126 of 2017 during the pendency of the proceedings before the Trial Court and therefore, the plaintiff sought for amendment of the plaint by incorporating the mandatory injunction. The Trial Court while answering issues after remand of matter in R.A.No.26/2013 at an earlier occasion, answered issue Nos.1 to 5 and additional issue Nos.1 and 2. Issue No.2 was earlier deleted and reframed additional issue No.1 and on the said issue, the First Appellate Court remanded the matter to readmit the suit, affording fair opportunity to either side to lead their evidence and dispose of the suit in accordance with the law.
15. On remand, additional issue No.1 was framed and the said issue has been treated as a preliminary issue and the First Appellate Court observed that issues framed in the Trial Court records disclose that after amending the plaint, two additional issues were framed and plaintiff and defendant have led their evidence after framing additional issues. While answering issue Nos.1 to 4, additional issue Nos.1 to 2 and issue No.5, additional issue No.1 which was -9- NC: 2023:KHC-D:12905 MSA No. 100126 of 2017 treated as preliminary issue was not considered by the Trial Court. Additional issue No.1 framed is "Whether the plaintiff proves that, defendant is trying to construct her wall touching the plaintiff's eastern wall so as to close the alleged window in his eastern wall and that the defendant has not left setback area between both properties that of himself and the defendant?" The First Appellate Court, while exercising the power under Order XLI Rule 23A of CPC, felt it necessary that the matter requires reconsideration by the Trial Court and remanded the matter with a direction to the Trial Court to give findings on additional issue No.1 framed, after affording sufficient opportunities to either side.
16. The First Appellate Court being the last fact finding Court has rightly considered the matter and has arrived at such a conclusion and the manner in which, the First Appellate Court remanded the matter, this Court is of the considered view that the same does not call for any interference. Accordingly, this Court pass the following:
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NC: 2023:KHC-D:12905 MSA No. 100126 of 2017 ORDER i. The miscellaneous second appeal filed by the defendant is hereby dismissed.
ii. The judgment and decree dated 17.07.2017 passed by IV Additional Senior Civil Judge and JMFC, Dharwad in R.A. No.83/2016 stands confirmed.
Sd/-
JUDGE MBM List No.: 1 Sl No.: 77