Karnataka High Court
Jukur Paguntappa S/O Gireppa vs Seetharamayya.C on 25 July, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2023:KHC-K:5796
RSA No. 7178 of 2009
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO. 7178 OF 2009 (INJ)
BETWEEN:
JUKUR PAGUNTAPPA S/O GIREPPA
SINCE DECEASED BY LRS.:
SMT. NIRMALADEVI W/O JUKUR VEERANNA
AGE: 63 YEARS, OCC: HOUSEHOLD,
R/O 11-11-58 (NEW),
BRESTHWARPET, RAICHUR
TQ. & DIST. RAICHUR-584105
...APPELLANT
(BY SRI PUNITH MARKAR, ADVOCATE FOR
SRI MAHANTESH PATIL, ADVOCATE)
Digitally signed
by SACHIN AND:
Location: HIGH
COURT OF
KARNATAKA C. SEETHARAMAYYA
S/O LATE C. NARASIMHAYYA SHETTY
AGE: 43 YEARS, OCC: BUSINESS,
R/O H.NO.11-11-58 & 60,
BRESTWARPET, NEAR C.P. SCHOOL,
RAICHUR - 584 101.
...RESPONDENT
(BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE)
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NC: 2023:KHC-K:5796
RSA No. 7178 of 2009
THIS RSA IS FILED U/S.100 OF CPC PRAYING TO ALLOW
THIS REGULAR SECOND APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 07.06.2008, PASSED BY THE
LEARNED PRL. CIVIL JUDGE (SR.DN), AT RAICHUR, IN
R.A.NO.21/2006, THEREBY DISMISSING THE APPEAL FILED BY
THE APPELLANT AND CONFIRMING THE JUDGMENT AND
DECREE DATED 30.01.2006 PASSED BY THE LEARNED ADDL.
CIVIL JUDGE (JR.DN), AT RAICHUR, IN O.S.NO.130/1998 AND
PASS SUCH OTHER ORDER/ORDERS AS THIS HON'BLE COURT
DEEMS FIT AND PROPER, IN THE FACTS AND CIRCUMSTANCES
OF THE CASE, INCLUDING AN ORDER AS TO COSTS.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Jukur Paguntappa, the defendant, is in second appeal.
2. Seetha Ramayya, initially, instituted a suit seeking for permanent injunction and subsequently by way of an amendment, sought for a decree of mandatory injection.
3. It was his case that he was the owner of the plot measuring 65 feet x 80 feet bearing Municipal No.11- 11-58 and 11-11-60 situate at Brestwarpeth. He stated that Jukur Paguntappa was residing in Municipal No.11-11- -3- NC: 2023:KHC-K:5796 RSA No. 7178 of 2009 58 which was situated on the northern side of his open plot.
4. He stated that there was a common wall existing between his plot and the house of Jukur Paguntappa and this common wall had a width of 2½". He stated that 1'3" width of the said common wall belonged to him while the remaining 1'3" width belonged to Jukur Paguntappa. He stated that since this was a common wall, neither he nor Jukur Paguntappa could put-up any construction on the said common wall, but despite this position, Jukur Paguntappa started construction of his first floor by utilizing the common wall and by fixing a beam on it. He stated that despite his objections, he proceeded with the construction and he had thereby encroached 1'3"
inches of the common wall which belongs to him.
5. He stated that though an interim order had been granted in the suit, the same had been set-aside in appeal and by virtue of this order, he had completed the construction and hence it had become necessary for him -4- NC: 2023:KHC-K:5796 RSA No. 7178 of 2009 to seek for decree of mandatory injunction to demolish the construction put on the first floor.
6. The suit was defended by Jukur Paguntappa contending that the said wall was his exclusive wall and was not a common wall. He stated that he was the exclusive owner of the property bearing Municipal No.11- 11-57 and the southern wall of the said house was independent and exclusive to him.
7. He also sought to contend that there were two windows existing on the ground floor and the property of Seetharamayya was an open plot and there had been no construction on the said property which by itself indicated that the wall was not common.
8. The Trial Court on consideration of the issues came to the conclusion that Seetharamayya had established that the wall in question was a common wall and he had ownership rights in respect of 1'3" over the said land. The Trial Court found that Jukur Paguntappa by -5- NC: 2023:KHC-K:5796 RSA No. 7178 of 2009 putting-up the first floor on this common wall had encroached upon the common wall to the extent of 1'3".
9. The Trial Court, in order to come to this conclusion, relied upon the sale-deed Ex.P.6, to which a map had been annexed and this sale-deed showed that the portion of the house under sale was indicated as an open site and a common wall was indicated on the southern side. The Trial Court noticed that the property sold under Ex.P.8 was indicated green color and the common wall was shown in white color and the correctness of Ex.P.8(a) was infact admitted by defendant. The Trial Court therefore come to the conclusion that since the defendant admitted that it was a common wall and as a consequence, he had no right to put-up a construction on the entire wall having a width of 2'6". The Trial Court accordingly proceeded to grant a decree of mandatory injunction directing Jukur Paguntappa to remove the wall constructed on the common wall. The decree of mandatory injunction granted was challenged in appeal. -6-
NC: 2023:KHC-K:5796 RSA No. 7178 of 2009
10. The Appellate Court found no reason to disagree with the finding of the Trial Court and it proceeded to affirm the judgment and decree of the Trial Court and dismissed the appeal.
11. It is as against these concurrent judgments, the present second appeal has been preferred and has been admitted to consider the following substantial question of law -
"Whether the Courts below were justified in decreeing the suit of the plaintiff for mandatory injunction ?"
12. In view of the fact that Jukur Paguntappa admitted the sale-deed executed in favour of Seetharamayya and the map annexed to the sale-deed, which indicated that there existed a common wall between the open plot that he had purchased and the house belonging to the defendant. Therefore, both the Trial Court as well as the Appellate Court were justified in granting a decree of mandatory injunction.
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NC: 2023:KHC-K:5796 RSA No. 7178 of 2009
13. However, it is to be noticed that the suit is of the year 1998 and for the past 25 years Jukur Paguntappa has been utilizing the first floor that he has constructed by encroaching upon 1'3" width of right in the common wall. In my view, having regard to this long passage of time which has elapsed, interests of justice would be served by directing Jukur Paguntappa to pay Seetharamayya for the encroachment at the rate of `10,000/- per sq. feet.
14. Learned counsel for Jukur Paguntappa submits that total extent of the encroached portion of the wall is 75.27 sq. ft. As a consequence, Jukur Paguntappa would be liable to pay a sum of `75,900/- to Seetharamayya.
15. This order is being passed having regard to the peculiar facts and circumstances of the case and in order to avoid unnecessary hardship that may be caused to Jakur Paguntappa and also taking into consideration the wall has been constructed over 25 years ago.
16. It is however made clear that if the said sum is not deposited within four weeks from today before this -8- NC: 2023:KHC-K:5796 RSA No. 7178 of 2009 Court, this order would become inoperative and Seetharamayya would be entitled to execute the decree passed by the Appellate Court as well as the Trial Court.
17. Accordingly, the appeal is disposed of.
Sd/-
JUDGE SN LIST NO.: 1 SL NO.: 34