Karnataka High Court
Smt Yashodamma vs Smt Hoorbhanu on 24 April, 2009
Author: A.S.Bopanna
Bench: A.S.Bopanna
I
IN THE HIGH COURT OF KARNATAKA, BANGALORE-.._<I_I'-..
DATED THIS THE 24TH DAY OF APRIL ' fff: J-'
BEFORE
THE HOWBLE MR. JUS'I'ICi§;_VA I I
REGULAR SECOND APPIQL N6..g_g;_ I
BETWEEN I I I I I
SMT YASHODAMMA.' '
w/0 CHIKKANNA SEW! _ -
AGED mom 53 YRS
om POST OFFICE R(L1.!*,.D_ '
HASSAN 573.20.; I '
'
{BY SR1 KVN£.RASI!9£--HAN;'ADV)--V.._ »
AND
Sm' HOORBIJAIEU
gvfo, LATE':-IYDER SHARIFF
Aegp A_BOU'P"5~4---.YRS
A _ "OLE? PCS'? OFFICE ROAD
' ~ i1IASS&IN'.5'?3__201
- * RESPONDENT
(IE:~T1¥iIoo1éB§§§.HUT;;sERvED; 'I'l~§iéa}RSA IS FILED U/3.100 OF CPC AGAINST THE "vv'"."'*..JL'DGMEN'§-' AND DEGREE D'I'.21.11.2005 PASSED IN ..R;.A.NG4..}/2005 ON THE FILE OF' THE FRI... CIVIL JUDGE T(SR§flNI§ HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE
-.ITH£"3V JUDGMENT AND DEGREE D'I'.7.1(}.20{)4 PASSED IN I----_O.S.?NO.168/2001 ON THE FILE OF THE PRL. CIVIL JUDGE ~, I(JI?;DN) AND JMFC II COUIQT, HASSAN. THIS APPEAL COMING ON FOR ADMISSION THIS BAY, THE COURT IDELIVERED THE FOLLOWING:
I 7 JUIJGHER1' The appellant herein is: 111: Vt
0.S.l'€o.168/2001. 'Fhc suit in questidfip plaintifi' seeking for a ju<iweii.t_"':'g.}d cieetee injunction to restrain the the wall on the southern Lstigitv 'and taking up any const1'uct3'nn. V
2. The the end' enoe aVa11ah' suit by its judgment dated was before the Lower Appellate "in: /2005. The Lower Appellate ooneiiieriing the matter has reversed the judV'gmentv.__énti«fi&ecxee of the Triai Court by allowing the is therefore before this Court in this The parties are referxed to in the same rank V assigned to them before the Trial Court for the purpose of . jeoisvenicnce and clarity.
3. Considering that the Courts below have taken divergent View with regaxti to the matter in issue, the only J '4 substantiai question of Law which arises for '2 V _ the present appeal is as follows:
"Whether the Lower Appeilate C{)iiAft"nae error in the manner of appreciatioinof 4 . :7.' has led to perversity in coming to the.eenciuai31;i the 3 judgment and decree passede-the for reversal?"
4. In the light of the the papers would indicate tmetghe <51' before the Trial Court is 'pI'Op€I'ty Incasurmg' 25 x 52 is:-,et1.whi¢i:V§v;§s sod' e by her under a registered sale deed from K.M.RamachandIashetty. to the revenue records such as records have been changed to her manic. by the plaintiff even though the _piainf:i.fi' purchased the extent of 25 x 55 feet, " " 'T actual measurement was found to be 25 x 52 « as such, the plainfifihas limited her claim to the property. The defendant is said to be the owner of the on the southern side of the suit pmperty bcionging to the plaintifil The property was originally owned by her in I husband Hyder Sherifi and thereafter, on x H khatha has been transfened to the n;«2m'e--of the u
5. The grievance of the _tf1e Vstzgzif.' defendant who is the owner of the property belonging to eofldamage the wall situate on the the property belonging to viéncif the compound wan, is fiat and therefore, the de£endax;t%'i§}ia$i~g V
6. T1:ie_:iefe};d_§n§ o being served with the suit 'is<suecVi " Court, has appeared and filed denying the claim put forth by the Ebzme the contentions urged in the written 'stateiiient-.. ie the wall to which the plaintifi' is laying W " ' noi the exclusive wall belonging to the piainlziif, but Tie 'ecnofimon wall. it is contended by the defendant that the or the bathroom stated to by the plasma' is beyond "the common wall and therefore, the plainfifl cannot lay any claim to the eame.
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7. In the light of the contentions uxged by the Trial Court has framed the foflewing " " . "
1. Whether the plaintiff provesvi;lf1at::'ti';:=,:i'dc«e'i'#:_:'1€iet:i1t is trying to demoiiah the souiiacfn sidewéi; {sf " ' the suit property, Vwl§iie_A cofistmctifiif, building?
2. Whethcr the pfiéintiff is e;';'ts:1¢c: &~.;- the mag:
claimedin the suit? " V
3. What Order or '
8. In " j cast on the parts' 3 by the hégself exmnincti as PW-1 and 'aghe §«:,:§s.P1 to P3. The defendant got herself L' and a wimess was cxamm' ed '.438 flW=;'~:2.E nqdocuzzacnts were marked on behaif of V".;he:V£icf;cn:1 ah,,; ._ / ., _ ..ii§.Avt1;.tt§.Vligh1: of the em encc tendered by the mines"
H " the pleadings put forth, the Trial Court has the evidence to come to the conclusion that the T is the owner of the property measuring 25 x 52 feet "and the waii though would indwa' in as a viral! belonging' to the piaintiff, in any event, the defendant having contended J ';
that the said' wall is a common wall, the defendgéntv V' demolish the same.
10. In this regard, a pezfneai ef..tii1e bf V Trial Court wank! indicate that to the oral evidence nende13_:ti the and more specifically, with of the plaintiff whexee to that': size of the féensflermg the fact that the «the-d_e%endam: with regard to thc size ef the the very same extent of pzoperty héafleaeeen Vthe plainfifi]. the Trial Court _ V was of teat circumstance and also going by had been meiied on by the piainfifl; the a fight to demolish the said wall and _theref€sre, f_§:£1e- jredgment as sought for against the demolition " 'theL injuncting the defendant was granted by the
11. As against the said reasoning adopted by the Trial Court when the defendant was before the Lower Appellate $ Court, the Lower Appellate Court has noucefl "
oontenfions. A peruse} of the judment u u Appellate Court would indicate ~ Court has stated that the issue_s"-fgamedv. :53; .(:e£::~£ are not proper and has tee teensfifizier the case based on certain made in the affidavit accompanying 1 "come to the conclusion that .
ef is that even if the Lower Appellate conclusion that the issues fzamedwrere that event, the Lower Appeilate net ed to reverse the judment, would not be appropriate if the issues have net ed properly and the evld' enoe had not 44 been Thexefbie, on the face it, the Lower Appellate committed an error at the fimt instance. Even a perusal of the judgment wouki indicate that the " 'e Apmlhte Court has not re-appreciatw the evfidenoe in '4 'its correct perspective md therefore, in this backgtnmd, if «:4 the issues framed by the Trial Court are V' light if the ma" enoc is oonsidexed, as.rig!1tly % i5ye';z.c V' 'I'nal' Court, since the defendant hersel"
the said wall is a common wail 9f' as claimed by the pzamtur the defendant, the Trial its ultimate conclusion. 1
13. especm in view, the would have to be ~~ Hence, the judgment dated 'eh: Lower Appellate Court. is set 'V aSi(1e"':.$i3.d_'"~iZh€zjlldfilhéfltv dated 07.10.2004 passed by the the appeal stands disposed of, with no _ Oxjder as Sd/-.
Iudgé J1'! bms