Karnataka High Court
Tippanna vs Ghanashyam on 11 August, 2003
Equivalent citations: AIR2004KANT446, ILR2003KAR4764, AIR 2004 KARNATAKA 446, 2004 AIR - KANT. H. C. R. 2701, (2003) ILR (KANT) (4) 4764, (2003) 4 KCCR 3050
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT Sreedhar Rao, J.
1. Although the case is at the stage of admission, the parties assisted the Court with pleadings and certified copies of the documentary and oral evidence and argued for final disposal of the matter on merits.
2. This appeal is filed against the Judgment and Decree dated 4.11.2002 in R.A.No. 79/1996 on the file of the Principal Civil Judge (Sr.Dn.), at Jamkhandi arising out of the Judgment and Decree dated 18.7.1996 in O.S.No. 70/1986 on the file of the Addl. Munsiff at Jamkhandi.
3. The appellant is the defendant and the respondent is the plaintiff filed a suit for permanent injunction against the defendant not to disturb the status-quo of the party-wall, not to put up any windows in the party - wall and not to put any weights on the party to the detriment of the interests of the plaintiff. The defendant contended that the disputed wall is the exclusive wall and not a party - wall and further the window in the disputed wall is in existence prior to purchase of the building by the defendant, it is about 30 to 40 years ago. Before the Trial Court, the plaintiff examined himself a carpenter, who was engaged by the defendant and one more witness -PW3, a resident of the area is examined to prove the fact that the window was not in existence as claimed by the defendant and only for the first time while re-constructing the party -wall, the window is sought to be put according to the version given by the witnesses examined for the plaintiff. The defendant has examined himself and examined his vendor's son and a milk vendor DW-4, a person of the locality to prove the fact that the window was in existence in the disputed wall since several decades.
4. The Trial Court while considering the evidence found that the witnesses examined by the plaintiff are not reliable and trust -worthy. The carpenter's evidence is rejected because of the fact that he had received a sum of Rs. 150/- on the day when he gave evidence in support of the plaintiff. The other witness examined for the plaintiff is also rejected on the ground that they are interested witness. The evidence of the milk vendor DW -4 is held to be trust - worthy. The Court found that although it is a party - wall, the window was in existence since several decades even before the defendant and plaintiff purchased their respective properties. In that view of the matter, the suit came to be dismissed.
5. The Appellate Court on re-appreciation of the evidence reversed the Judgment and Decree of the Trial Court and found that the defendant has failed to show the existence of window since several decades as claimed by him. Aggrieved by the findings of the Appellate Court, the present appeal is filed.
6. The following point of law is framed for consideration:-
"Whether the appreciation of the evidence by the First Appellate Court is perverse and contrary to the evidence on record and that the First Appellate Court was not justified in reversing the findings of the Trial Court and in allowing the suit?"
7. Sri M.B. Nargund, learned Counsel appearing for the respondent relied on the following rulings in the cases of BALWANT YADNESHWAR v. SRINIVAS APPAJI KULKARNP AIR 1959 MYSORE 244; SHIVPUTRAPPA PARAPPA KAMSHETTl v. SHIVRUDRAPPA KALAPPA HULI AIR 1926 BOMBAY 387 reported in KAPOOR CHAND AND ANR. v. KAILASH CHAND AND SIVARAMA PILLAI AND ORS. v. MARICHAMl PILLAI AIR 1971 MADRAS 230 to bring home the point that the co-owner of a party - wall has no unilateral right to tamper with the wall and to convert or use the wall so as to create dis-advantage to the other co-owner. Further, argued that the ratio laid down in the decision would disclose that no actual damage need be proved, when once it is established that the wall is a party -wall, one of the co-owner cannot unilaterally deal with the wall to alter the status-quo.
8. Sri M.B. Nargund, learned Counsel strenuously argued that as a fact, the defendant has failed to establish the existence of window since several decades and the finding of the Appellate Court in this regard is sound and proper and that the factum of payment of Rs. 150/- to the witness by the plaintiff cannot be read as a corrupt practice to dis-honestly win over a witness to falsely depose in favour of a plaintiff. After all the witness is a daily wager, his attendance to the Court would result in loss of wages for the day. Therefore, to compensate such loss, the payment made legitimate.
9. Sri Anil V. Kulkarni, learned Counsel for the appellant strenuously contended that the appreciation of the evidence made by the Trial Court is sound and proper. The Milk Vendor DW-4 and the son of the vendor DW-2 are trust-worthy and impartial witnesses. Their evidence would disclose the fact that the window existed in the wall since several years prior to purchase made by the defendant and even for that matter prior to purchase of adjoining property made by the plaintiff.
10. The decision cited by the learned Counsel for the respondent does not appear to have any application to the facts of the case. May be at the earliest point of time, the defendant contended that it is not a party - wall and it is an exclusive wall. Later on, in the course of evidence it is established beyond the doubt that the wall is a party - wall. The defendant further pleaded that the window was in existence since several decades and it is not for the first time is trying to put the window at the time of re-construction. This fact held to be established by the Trial Court considering the evidences of DW-1 and DW-4. I find, the view taken by the Trial Court is sound and proper.
11. About the payment of money to PW3, the argument of Sri M.B. Nargund, learned Counsel although morally attractive but, lacks legal basis. It is not elicited in a complete manner through PW-3 about his earnings and the payment of Rs. 150/- is a compensation for loss of wages for the day. In this regard, I find, the provisions of law designed in the Civil Rules of Practice relating to payment of witness Bata is far from satisfactory and requires a thorough review.
12. The relevant provisions of Rule 54 of Chapter IX extracted herein for convenient reference:-
Class of witness Travelling allowance for each of the journeys to and from Court-house where it is in a different station from that of the witness.
Subsistence allowance including expenses per day By rail By Road Where there is no public conveyance plying for hire Where there is public conveyance such as a motor bus plying for hire Third Class Single lowest class Single lowest class fare Ten paise per mile Rs. Ps 2 50 Second Class Single Second Class Fare Single second class or lower class fare where there are only two classes Twenty paise per mile Rs. Ps 2 50 First Class The Presiding Judge may decide and allow single first class fare where he is satisfied that the witness habitually travels by the highest class available in public conveyances in other cases single second class fare only.
Forty paise per mile Rs. Ps 5 00
"54.Classes of witnesses - (1) Witnesses shall be divided into three classes.
Third Class : Persons whose annual income is Rs. 3,000 or below.
Second Class: Persons whose annual income is above Rs. 3,000 but does to exceed Rs. 8,000.
First Class: Persons whose annual income is above Rs. 8,000.
(2) The following will be the scale of allowances to witnesses:
3. In special cases where the above Rule would work hardship it shall be at the discretion of the Presiding Judge to allow a witness such additional sum as he may consider reasonable to cover bonafide expenses incurred by him.
(4) Where the witness resides in the same station where the Court-house is situated, it will be at the discretion of the Presiding Judge to allow reasonable hire for conveyance (if one is used) in accordance with the status of the witness instead of subsistence or traveling allowance."
13. A witness, who is gainfully employed for the reason of attendance to the Court, if he were to loose the day's earning, a proper subsistence allowance and reasonable actual travel allowances is to be made payable, even for a local witness by making necessary legal provisions in Civil Rules of Practice. The subsistence allowance and the travel allowance in the penultimate column provided in Rule 54 is terrible paltry and has no relevance to reality. Of course, the subsistence allowance and travel allowance prescribed under the Schedule in Rule 54 was reasonable in the context of time prevalent in the year 1967, where the value of money was quite high. But, in the present times, the said amount is terribly paltry and there was no relevance to the actual travel expenses, food expenses and stay expenses etc., for the outstation witnesses. The concept of subsistence allowance in the present rule does not include the loss of wages for the day and the actual food expenses. Under the rule, it is left to the discretion of the Judge to decide the reasonable conveyance expenses for the local witnesses and bonafide expenses in case of out-station witnesses. The said practice results in delay or no payment of Bata to the witness. Therefore, all the relevant components have to be included as inputs while fixing the rates of bata for the local and out-station witnesses. The rule should insist advance deposit of witness Bata to enable immediate payment to the witness. It is true that morally payment of any money to compensate the loss of wage for the day to a witness cannot be termed as a corrupt tip, but in the instant case, there is no evidence to show that payment of Rs. 150/- was indeed equalises a loss of wages for the day that apart law does not permit such unilateral payment as of now.
14. The reasons given by the Trial Court in rejecting the oral evidence of the witnesses examined for the plaintiff is sound and proper. The reasoning of the Appellate Court in reversing the finding of the Trial Court is not just and proper. The window to the disputed party-wall is in existence since the several years. The finding of the Trial Court is sound and proper, the said fact is testified by the independent witnesses examined by the defendant. No doubt, unilaterally one of the co-owners of the party - wall cannot change the status - quo or alter the nature of the party - wall, but right from inception, if there are ventilators or windows or any other structures fixed in the wall since several decades and if there is an acquiescence on the part of other co-owner or its predecessors at the time of erection and at later point of time, it is impermissible for the other co-owner to insist removal or closure of the structures. In the instant case, the evidence discloses that the window in common wall was in existence since several decades and the window was sought to be restored in the process of re-construction.
15. In that view of the matter, it is impermissible for the plaintiff to seek closure/ removal of the window, which was in existence since several decades and to which the plaintiff's predecessors had acquiesced.
16. The interpretation of the evidence and findings of the Appellate Court is perverse and bad in law. Accordingly, set aside. The appeal is allowed. The suit of the plaintiff is dismissed.
Parties to bear their own costs.
The Registrar (General) is directed to place this judgment before the Hon'ble Chief Justice for kind consideration and for review of the provisions in Civil Rules of Practice, relating to payment of witness Bata.