Karnataka High Court
Rekha W/O Nagesh Bevargi vs Panchaksharayya @ Panchakshari S/O ... on 26 June, 2024
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NC: 2024:KHC-D:8698
RSA No. 5173 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5173 OF 2009 (MON-)
BETWEEN:
REKHA W/O NAGESH BEVARGI
AGE: 34 YEARS, OCC: MEDICAL PRACTITIONER,
R/A EXTENSION AREA, BAGALKOT-587101.
...APPELLANT
(BY SRI. S.B.HEBBALLI, ADVOCATE)
AND:
PANCHAKSHARAYYA @ PANCHAKSHARI
S/O SIDDAYYA VIRAKATIMATH,
AGE: 67 YEARS, OCC: BUSINESS,
R/O T.P.NO.166/A/4, WARD NO.X,
BAGALKOT-587101.
...RESPONDENT
(BY SRI V.R.DATAR, ADVOCATE)
Digitally signed THIS RSA IS FILED U/S. 100 OF CPC., PRAYING TO SET ASIDE
by SAROJA
HANGARAKI THE IMPUGNED JUDGMENT AND DECREE DATED 01.12.2008 PASSED
Location: HIGH IN R.A.NO.38/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
COURT OF
KARNATAKA (SR.DN.) BAGALKOT, DISMISSING THE APPEAL AND CONFIRMING
DHARWAD
BENCH THE JUDGMENT AND DECREE DATED 29.09.2007 IN
DHARWAD
O.S.NO.188/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(JR.DN.), BAGALKOT, DISMISSING THE SUIT, AND DECREE THE
SUIT IN O.S.NO.188/2005 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (JR.DN.), BAGALKOT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:8698
RSA No. 5173 of 2009
JUDGMENT
The above second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the plaintiff challenging the judgment and decree dated 01.12.2008 passed in R.A.No.38/2007 by the Principal Senior Civil Judge, Bagalkot2 and the judgment and decree dated 29.09.2007 passed in O.S.No.188/2005 by the Principal Civil Judge, Bagalkot3, whereunder the suit for mandatory injunction for removing of the staircase put up by the defendant in his property has been dismissed by the Trial Court and upheld by the First Appellate Court.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. It is the case of the plaintiff that she is the owner of property bearing CTS No.166/A/4 shown as 'ABCD' in the hand sketch filed along with plaint, situated 1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' -3- NC: 2024:KHC-D:8698 RSA No. 5173 of 2009 in Ward No.10 of Bagalkot town. That she is in actual possession of the said property and has constructed a house in the said property. That the house of the defendant is part of the said CTS number and is referred to as 'H2' portion measuring 48x50 feet shown as 'EIGH' in the hand sketch to the plaint and that in between the two houses there is a compound wall of the plaintiff which is demarcated as 'IJ' in the hand sketch.
4. It is the further case of the plaintiff that the defendant has illegally constructed a staircase demarcated as 'KL' in the hand sketch for the ground floor and another staircase demarcated as 'MN' in the hand sketch for the first floor and the said staircase obstructs the easementary right of light and air of the plaintiff. It is further contended that the defendant has not left any setback area as required to the north of his house. Hence, the plaintiff filed a suit for mandatory injunction to direct the defendant to demolish the staircase which is physically touching the compound wall demarcated as IJ. -4-
NC: 2024:KHC-D:8698 RSA No. 5173 of 2009
5. The defendant entered appearance in the suit and contested the case by filing written statement. The defendant admitted that he is the owner in possession of the house referred to as H2 portion measuring 48x50 feet. The case of the plaintiff has been denied in detail by the defendant.
6. It is the further case of the defendant that his vendor has constructed the house in the year 1997 and that the defendant has purchased the area measuring 47x24 feet consisting of a constructed house and open space of his vendor vide registered Sale Deed 29.07.1998 for a valuable consideration. That the compound wall between the house of the plaintiff and defendant is a common wall. That the house constructed by the vendor of the defendant is in accordance with a sanction land and a requisite setback area has been left on all sides of the property in accordance with the permission granted by the competent authorities. It is further contended that after the purchase of the said house, the defendant -5- NC: 2024:KHC-D:8698 RSA No. 5173 of 2009 constructed the first floor of the house of the property in the year 2001, above the ground portion after obtaining permission from the competent authorities. That the plaintiff never objected to the construction of the first floor by the defendant, much less the easementary rights of air and light of the plaintiff, as alleged.
7. It is the further contention of the defendant that the plaintiff constructed the first-floor building on the Sajja portion of the house towards the house of the defendant without leaving any setback area. That the construction of the first floor by the plaintiff is unauthorized, illegal and without permission. That the defendant objected to the construction of the first floor and filed a complaint before the City Muncipal Council, Bagalkot, and issued a notice to the plaintiff to stop the illegal construction. That the plaintiff continued the construction and has encroached the eastmentary rights of the defendant and in order to harass the defendant, the present suit is filed.
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009
8. It is further contended that the plaintiff never objected to the construction knowing that the construction of the defendant is within his property and hence, the plaintiff was estopped from contending that the alleged construction of the defendant is illegal.
9. Consequent to the pleadings of the parties, the Trial Court framed the following issues:
1. Whether plaintiff proves that construction of staircases by the defendant at KL for ground floor and MN for first floor portion as shown in the handsketch map is illegal construction?
2. Whether plaintiff further proves that due to construction of the above staircases the plaintiff's right to receive light and air through windows, ventilators in the CD portion of the ground floor as well as first floor is affected?
3. Whether plaintiff proves that she is owner of the property bearing CTS No.166/A/4 to the extent of ABCD as shown in dtd. 15.3.1990, and her possession of the said property is lawful as on the date of the suit?
4. Whether defendant proves that suit of plaintiff in the present form is not maintainable?-7-
NC: 2024:KHC-D:8698 RSA No. 5173 of 2009
5. Whether plaintiff is entitled for mandatory injunction against the defendant as prayed for?
6. What order or decree?
10. The power of attorney holder of the plaintiff examined himself as PW.1 and a witness was examined as PW.2. Ex.P.1 to Ex.P.3 has been marked. The defendant examined himself as DW.1. Ex.D.1 to Ex.D.5 have been marked. The Trial Court vide judgment and decree dated 29.09.2007 dismissed the suit.
11. Being aggrieved the plaintiff preferred RA No.38/2007. The defendant entered appearance in the said proceedings and contested the same. The First Appellate Court framed the following points for consideration:
1. Whether the appellant proves that she is entitled for mandatory injunction as prayed in the suit?
2. Whether the appellant proves that there are just and reasonable grounds to remand the suit for fresh disposal by recording proper evidence?-8-
NC: 2024:KHC-D:8698 RSA No. 5173 of 2009
3. Whether the judgment and decree of the trial court suffers from irregularity or illegally and as such calls for interference by this court in this appeal?
4. What order?
12. The First Appellate Court vide judgment and decree dated 01.12.2008 dismissed the appeal of the plaintiff and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the plaintiff has filed the present second appeal.
13. This Court vide Order dated 13.09.2012 has framed the following substantial questions of law:
a. "Whether under the facts and circumstances of the case, both the Courts not erred in law in dismissing the suit?
b. Whether the Judgments and Decrees of the Courts below are not perverse? c. Whether both the Courts not erred in law in not appreciating properly the question involved in the case?
d. Whether both the Courts not erred in law in holding that the plaintiff is guilty of delay and latches and for that reason she is not entitled to the relief?-9-
NC: 2024:KHC-D:8698 RSA No. 5173 of 2009 e. Whether both the Courts not erred in law in not decreeing the suit on the ground that though the defendant has violated the building permission and has not left the set back, the plaintiff has failed to prove her right of easement and there is not entitled to the relief?"
14. Learned counsel for the appellant vehemently contended that the defendant has admittedly constructed the staircase which is almost touching the compound wall belonging to the plaintiff and hence, the relief of mandatory injunction sought for by the plaintiff in the plaint ought to have been granted. It is further contended that both the Courts have concurrently erred in dismissing the suit and the said concurrent findings are required to be interfered with by this Court in the present appeal.
15. The submissions of the learned counsel for the appellant have been considered and the material on record including the records of the Trial Court and First Appellate Court have been perused.
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009
16. It is forthcoming that, the Trial Court while answering issue Nos.1 to 3 has recorded the following findings:
i) "Though the defendant in his written statement denied the ownership of the plaintiff over the suit property, it is forthcoming from the tenor of the cross-
examination of PW.1 that the ownership of the plaintiff is not contested. Hence, the plaintiff is the owner of the ABCD portion shown in the plaint hand sketch;
ii) The power of attorney holder of the plaintiff has been examined as PW.1. However, the power of attorney holder has not produced or marked a copy of the power of attorney. Only after the conclusion of the arguments at the time of reply of the plaintiff, a copy of the power of attorney is produced along with the memo. The said power of attorney is not an original or certified copy, but is only an attested copy. Therefore, the evidence of PW.1 cannot be considered as evidence of the plaintiff;
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009
iii) The evidence of PW.1 cannot be considered as a witness. He has given evidence as if he is the plaintiff. Further it has come on record that he is the father of the plaintiff;
iv) PW.1 cannot depose the facts which are in exclusive knowledge of plaintiff. So from this angle, the evidence of PW.1 cannot be substituted for the evidence of plaintiff;
v) To substantiate the case that the defendant has constructed the building by violating the Municipal laws, the plaintiff has not produced any material nor led the evidence of any expert to that effect. The two other documents produced by the plaintiff are copies of the legal notice (Ex.D.2) and reply (Ex.D.3);
vi) To substantiate his case that he has
constructed the building with the
permission accorded by the local
authority, the defendant has produced the original permission as Ex.D.2;
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009
vii) Ex.D.3 is the approved map and Ex.D.4 is the permission secured by defendant for the construction of the first floor;
viii) Although, the plaintiff has not made any attempt to produce any document to show what the approved plan was and how the defendant violated the permission, the defendant in his evidence has stated that his staircase is at a distance of 6 inches from the compound wall.
ix) The plaintiff suggested to DW.1 that he has left the setback area towards his northern side by constructing his building, which has been admitted by the defendant. It is further suggested that because of the said setback area, the defendant is not feeling any difficulty as to the light and air of the building. So this suggestion makes it clear that there is a sufficient distance between the two buildings;
x) The plaintiff has to make specific pleadings in the plaint to the effect as to the nature of easementary right she has been
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009 enjoying and as to how it has been infringed. The evidence of the plaintiff goes to show that she purchased the property in the year 1991 and the defendant purchased the property in the year 1998. By the time the ground floor was already constructed. The suit has been filed in the year 2005. So without such pleading, the consideration of easementary right as alleged by the plaintiff does not arise;
xi) The plaintiff ought to have been vigilant to file a suit immediately when the defendant started construction. But the plaintiff kept num till the construction was over."
17. The First Appellate Court while considering the points framed for consideration has noticed that the plaintiff has not produced any documents to prove that the construction put up by the defendant is illegal and unauthorised. It is further noticed by the First Appellate Court that the plaintiff has not sought for appointment of a Commissioner to measure the property or adduce
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009 evidence of expert to show that the defendant has constructed the staircases without leaving setback area.
18. It is pertinent to note here that apart from producing the property card (Ex.P.1), the legal notice dated 28.10.2006 (Ex.P.2) and the reply notice dated 12.11.2005 (Ex.P.3), plaintiff has not produced any other document to demonstrate that construction of the staircase by the defendant is an illegal one. It is the contention of the appellant/ plaintiff that the staircase has been put up without leaving any setback area. However, the plaintiff has not placed any material on record to demonstrate as to what is the setback area stipulated by the relevant statutory provisions applicable to the property of the plaintiff and the defendants. As rightly noticed by the Trial Court and the First Appellate Court, the plaintiff has also not sought for the appointment of the Commissioner to visit the spot and to measure the properties of the plaintiff and the defendant to prove the
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009 allegation that the construction put up by the plaintiff is in violation of any statutory stipulations.
19. It is further relevant to note that the plaintiff has adduced evidence through her power of attorney holder who was examined as PW.1. It is forthcoming from the affidavit filed by way of examination in chief by PW.1 that, he has not deposed as to what facts are known to him and as to how he is personally aware of the averments made in the plaint. In fact a reading of the said affidavit would indicate that PW.1 has deposed in his examination in chief as if he is the plaintiff. It is clear from the said affidavit that the evidence of PW.1 can in no manner be taken as the evidence of plaintiff. In this context it is relevant to note the following judgments:
20. The Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Limited and others4 has held as follows: 4
(2005) 2 SCC 217
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009 "12. ....... The power-of-attorney holder does not have personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal.
13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
21. The Hon'ble Supreme Court in the case of Man Kaur (Dead) By LRs Vs. Hartar Singh Sangha5 has held as follows:
"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:5
(2010) 10 SCC 512
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) ........
(e) ........
(f) ........
(emphasis supplied)
22. In view of the settled position of law as noticed above, the testimony of PW.1 cannot be construed as the evidence of the plaintiff.
23. Having regard to what is noticed above, the plaintiff has miserably failed in demonstrating that the
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009 construction of staircase by the defendant is contrary to any statutory stipulations and the relief of mandatory injunction is liable to be granted. The Trial Court has adequately appreciated the oral and documentary evidence on record while dismissing the suit. The First Appellate Court has also appropriately re-appreciated the oral and documentary evidence on record while confirming the judgment and decree passed by the Trial Court.
24. In view of the discussion made above, the substantial questions Nos.(a) to (e) are answered in the affirmative.
25. Hence, the following:
ORDER i. The above appeal is dismissed.
ii. The judgment and decree dated 29.09.2007 passed in OS No.188/2005 by the Principal Civil Judge (Junior
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NC: 2024:KHC-D:8698 RSA No. 5173 of 2009 Division), Bagalkot and the judgment and decree dated 01.12.2008 passed in RA No.38/2007 by the Principal Civil Judge (Senior Division), Bagalkot are affirmed.
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JUDGE SH upto para 4 PJ , CT:GSM List No.: 1 Sl No.: 61