Karnataka High Court
Ramangouda S/O. Babagouda Patil vs Suresh S/O. Bapugouda Patil on 26 August, 2014
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 26 t h Day of August, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular Second Appeal No. 5581/2013
BETWEEN
1. RAMAGOUDA S/O. BABAGOUDA PATIL,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O. YARNAL NEAR JAIN BASTI
TQ:HUKKERI, DIST: BELGAUM
2. DHANYAKUMAR @ DHANAJAYA
S/O. RAMAGOUDA PATIL,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. YARNAL NEAR JAIN BASTI,
TQ:HUKKERI, DIST: BELGAUM
3. ANANT S/O. RAMAGOUDA PATIL,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. YARNAL NEAR JAIN BASTI,
TQ:HUKKERI, DIST: BELGAUM
..... APPELLANTS
(BY SRI JAGADISH PATIL, ADV.)
AND
1. SURESH S/O. BAPUGOUDA PATIL,
AGE: 73 YEARS, OCC: AGRICULTURE,
2
R/O.PLOT NO. 2229, SECTOR NO. 11,
MAHANTESH NAGAR, M.M. EXTENSION,
BELGAUM
2. KESHAVGOUDA S/O. BAPUGOUDA PATIL,
AGE: 68 YEARS, OCC: SERVICE,
R/O. PLOT NO. 1721, SECTOR NO. 8,
ANJANEYA NAGAR, BELGAUM,
DIST: BELGAUM
3. AJIT S/O. BAPUGOUDA PATIL,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O. PLOT NO. 6438, SECTOR NO. 8,
ANJANEYA NAGAR, BELGAUM,
DIST: BELGAUM
..... RESPONDENTS
THIS RSA IS FILED U/S.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DTD 06.02.2013
PASSED IN R.A.NO.71/2010 by THE SENIOR CIVIL
JUDGE, HUKKERI, DISMISSING THE APPEAL, FILED
AGAINST THE JUDGMENT AND DECREE DTD
25.09.2010 AND THE DECREE PASSED IN
O.S.NO.1392007 BY THE CIVIL JUDGE & JMFC,
HUKKERI.
THIS APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiffs filed a suit for declaration which came to be decreed against which the appeal filed before the Civil Judge (Sr.Dn.), Hukkeri in R.A.No.71/2010 came 3 to be dismissed by confirming the judgment and decree passed by the trial Court in O.S.No.139/2007. As against the same, this second appeal is filed in respect of a common wall.
2. As a matter of fact finding, the trial Court as well as the lower appellate Court upheld the contention of the plaintiffs. According to the plaintiffs, they sought for declaration that the common wall belongs to them. However, the same has been disputed by the defendants on the ground that it belongs to both. Further, the trial Court while holding that the plaintiffs made out a case that it is not a common wall, it belongs to the plaintiffs, has noted that there was a wall measuring about 3 to 4 feet, after demolition, reconstruction was made and the wall measurement will be more than 1'. Admittedly the construction is made in the place where the old house was situated. It is not the case of defendants that plaintiffs have encroached the property belonging to them and 4 construction is made. In that view of the matter, the trial Court has decreed the suit. Th e lower appellate Court has taken into consideration the measurement and also the wall put up in the place of new wall, and that it is not by way of encroachment but it is on the property of the plaintiffs and that it is not the case of defendants that there is encroachment by the plaintiffs. Both the Courts below are right in decreeing the suit and in dismissing the appeal filed before the lower appellate Court. Accordingly, there is no scope for interference in the judgment and decree passed by the trial Court as well as the lower appellate Court. No substantial question of law arises for consideration.
Appeal is dismissed.
Sd/-
Judge Naa