Karnataka High Court
Sridhar Rao S/O Narayana Rao vs Alikhan S/O Late Akbarsab on 18 January, 2021
Author: Ravi.V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18th DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL No.6010/2012
BETWEEN:
Sridhar Rao S/o. Narayana rao,
Age 65 years, Occ: Retired Employee,
R/o. Oddaroni, Gangavathi,
Tq. Gangavathi, Dist: Koppal-583227
... Appellant
(Sri. Rajashekhar R. Gunjalli, Advocate)
AND
1. Allikhan S/o. Late Akbarsab
Age 51 years, Occ: Mason,
2. Mahaboob S/o. Late Akbarsab,
Age 41 years, Occ: Business,
3. Husen S/o. Alikhan,
Age 7 years, Occ: Electrician.
All are R/o. Oddaroni, 19th Ward, Gangavathi,
Tq. Gangavathi, Dist. Koppal - 583227.
... Respondents
(Sri. B.Sharanabasava, Advocate for C/R1 to 3)
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This RSA is filed under Section 100 of CPC, against the
Judgment & Decree dated 21.06.2012 passed in R.A.No.15/2011 on
the file of the Senior Civil Judge at Gangavati, dismissing the
appeal, filed against the Judgment dated 14.06.2011 and the
decree passed in O.S.No.27/2010 on the file of the Principal Civil
Judge and JMFC, Gangavathi, dismissing the suit filed for
declaration & mandatory injunction.
This RSA having been heard and reserved for Judgment on
06.01.2021, this day, the Court, delivered the following:
JUDGMENT
Challenging the Judgment and Decree dated 21.06.2012 passed by the Senior Civil Judge at Gangavati confirming the Judgment and Decree dated 14.06.2011 passed by the Principal Senior Civil Judge and JMFC, Gangavati in O.S.No.27/2010, this appeal is filed.
2. The appellant herein was the plaintiff in O.S.No.27/2010, the respondent Nos.1, 2 and 3 herein were defendant Nos.1, 2 and 3 respectively in the suit. The plaintiff was the appellant in R.A.No.15/2011 and the defendants were the respondents. For the sake of convenience the parties will hereinafter be referred to as per their respective ranks before the trial Court.
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3. Brief facts leading to this appeal are that, the plaintiff Sri. Shridharrao S/o. Narayanrao filed O.S.No.27/2010 against the defendants seeking for declaration that he is entitled to use of suit window for air and light and for a mandatory injunction against defendants to remove the shed and other structures built by them over suit window and further for permanent injunction restraining them from erecting shed or any other structure over the suit window and against trespassing over the same. In the plaint it was stated that the plaintiff was absolute owner and possessor of residential house bearing No.4-7-42/4-7-38, situated at Ward No.19, Oddar Oni, Gangavathi which was the suit schedule property. It was purchased by plaintiff from one Sri. Basappa Gaded who had purchased it from Sri. Gurappa Kariveerannavar under registered sale deed. It is stated that from date of purchase, plaintiff was in lawful possession and enjoyment of the suit property. It was stated that the house was constructed about 50 years ago and it was having a window towards the north of the house referred to as the suit 'window'. The window was attached to the kitchen and existed from the time of construction. It was stated that the plaintiff was the owner of dominant heritage with regard to 4 user of window for passage of light and air to his kitchen. It was further stated that plaintiff had been using it for passage of air and light without interruption for more than 20 years. It was further stated that the window was infront of defendants' house. It was stated that the window opened into public road therefore defendants had not caused any problems to use of window by plaintiff for passage of light and air until the month of November, 2009. When the defendants tried to erect a shed, plaintiff brought it to notice of the municipal authority. But on 02.01.2010, defendants erected the shed and obstructed passage of light and air to the window of the plaintiff's house. It was further stated that the purpose of erecting the shed was to cook meat in the shed and to make huge smoke enter the kitchen of the plaintiff by obstructing air and light to pass. It was stated that the plaintiff's house was surrounded by tall houses. The defendants were politically and economically influential and because of which no action was taken by CMC Gangavati. It was stated that the blockage of window had increased risk of bursting of gas cylinder, etc., 5
4. On service of summons, defendant Nos.1 to 3 entered appearance and filed written statement admitting ownership of plaintiff over suit schedule property but specifically denying existence of any window towards the north side of his house attached to the kitchen. The existence of dominant heritage and status of plaintiff as dominant owner were denied. It was specifically contended that defendants had put up their shed since more than 20 years and denied that it was put up on public road. They asserted that it was constructed on the open space belonging to them and denied the shed causing any obstruction to passage of light and air through the window as claimed by the plaintiff. The defendants further denied that blockage of window on plaintiff's house had materially damaged and decreased its value. It was specifically stated by defendants that initially entire property including suit house property and adjoining house towards south of house belonging to plaintiff were owned and possessed by Sri. Akbhar Khan and his elder brother Sri. Khadar Khan. Sri. Akbar Khan was the father of defendant No.1 and 2 and grand-father of defendant No.3. In the year 1976 the houses including plaintiff's house were sold to Sri. Gurappa Kariveerannavar. It was further 6 stated that the house belonging to plaintiff and house of defendant No.1 adjoined each other and were built with same common wall. No window ever existed and that suit was filed with an intention to open a new window in the place alleged by the plaintiff. It was further stated that the suit house consisted of only one small room measuring 8 ft X 8 ft with a main door opening towards western side and without any window on northern wall. It was stated that the main door measuring 3 ½ feet X 7 feet was the main way for ingress and egress of light and air into the said room from time immemorial and the plaintiff was using the said main door for air and light from the date of his purchase. It was also stated that, the defendants had put up the shed with metal sheet permanently in front of their house adjacent to northern wall of plaintiff's house to protect the open space from rain and sun as they had stored equipment and needy things there. On the said pleadings the trial Court framed the following issues.
1. Whether the plaintiff proves that there is a suit window in existence, he has got right of easement of air and light through said window?
2. Whether the plaintiff proves that he is in lawful possession of the suit window?
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3. Whether the plaintiff further proves that there is an interference by the defendants by way of erection of shed and any other structures over the suit window?
4. Whether the plaintiff is entitled for the relief of mandatory injunction to remove shed and other parts of structure over the suit window?
5. Whether the plaintiff is entitled for relief of perpetual injunction as prayed?
6. What order or decree?
5. In support of his case, the plaintiff examined his GPA Holder as P.W.1 and two other witnesses as P.W.2 and 3. Ex.P.1 to 37 were marked. In rebuttal defendant No.2 was examined as D.W.1 and another witness was examined as D.W.2 and Ex.D.1 to Ex.D.5 were marked. On consideration, the trial Court answered issue Nos.1 to 5 in the negative and passed the impugned Judgment and Decree dismissing the suit. Aggrieved by the same, plaintiff filed R.A.No.15/2011. In the appeal it was contended that trial Court did not properly considered the documents Ex.P.3, Ex.P.4 and Ex.P.6 produced by plaintiff and observation by trial Court that sale deed in favour of plaintiff did not mention about existence of a window on the northern side, were contrary to law. The burden to prove them ought not to have been placed on the 8 plaintiff as normally existence of windows are not stated in sale deeds and plaintiff had established existence of the window by other oral and documentary evidence. On hearing the submissions of parties, appellate Court framed following points for its consideration:
1. Whether the plaintiff proves that there is a suit window in existence, he has got right of easement of air and light through said window?
2. Whether the plaintiff proves that he is in lawful possession of the suit window?
3. Whether the plaintiff further proves that there is an interference by the defendants by way of erection of shed and any other structures over the suit window?
4. Whether the plaintiff is entitled for the relief of mandatory injunction to remove shed and other part of structure over the suit window?
5. Whether the plaintiff is entitled for relief of perpetual injunction as prayed?
6. What order or decree?
6. After answering point Nos.1 to 5 in the negative the first appellate Court dismissed the appeal. Against concurrent finding, the plaintiff is in appeal.
7. Learned counsel Sri. Rajashekhar Gunjalli for plaintiff-
appellant submitted that trial Court as well as appellate Court erred 9 in not considering oral and documentary evidence of plaintiff while dismissing the suit and the appeal. It was submitted that, defendants did not dispute ownership of plaintiff over suit schedule properties and the recitals of sale deeds of plaintiff and his vendor Ex.P.3 and Ex.P.4 showed existence of public road towards northern side of the house. It was further submitted that plaintiff purchased suit schedule property during 1991 and was using the window for nearly 20 years when in the year 2010 defendants put up shed towards northern side obstructing passage of air and light through the window. It was submitted that plaintiff also complained to the Municipality vide Ex.P.6. It was contended that, merely on the ground that sale deed of plaintiff did not mention about existence of window, trial Court ought not to have dismissed the suit. The same had resulted in miscarriage of justice as normally sale deeds of houses do not contain description of existence of doors and windows. Their existence has to be gathered from other evidence. It was submitted that plaintiff had also examined his neighbours as P.W.2 and P.W.3 who deposed about the existence of the window. Even D.W.2 in his cross-examination admitted existence of window when confronted with photographs Ex.P.7 to Ex.P.30. Referring to 10 Section 13 of the Easements Act, it was submitted that, the easement which was in existence prior to purchase of house by plaintiff enured to his benefit. It was further submitted that, plaintiff had also filed an application for additional evidence to examine his vendor to prove existence of window but appellate Court dismissed the same without proper reasons. It was submitted that right of easement claimed by plaintiff was one of necessity as there was no other window to the kitchen of plaintiff's house, which has not been appreciated. It was submitted that, following substantial questions of law arose for consideration in this appeal:
1. Whether the dismissal of the suit on the ground that the sale deed did not show existence of the window, was justified?
2. Whether the dismissal of the suit was justified without considering Ex.P.3 and Ex.P.4 sale deeds which show existence of public road on the northern side?
3. Whether the trial Court was justified in dismissing the suit on the ground that there is alternative access to air and light to the plaintiff's house?
8. On the other hand, Sri. B.Sharanabasawa, learned counsel for respondent-defendants submitted that, none of the substantial question of law proposed by appellant arose for 11 consideration in this appeal. The grounds urged and the proposed substantial questions of law were all questions of fact and as finding of facts were concurrent, no relief could be granted to appellant in this appeal. It was submitted that, description of the boundaries in the plaint suit schedule itself shows existence of open space towards northern side. It was further submitted that, except photographs Ex.P.7 - Ex.P.30, which by themselves do not establish that they pertain to suit schedule property, plaintiff did not place any other evidence on record to establish existence of window. When plaintiff admitted that the window existed in the house property from the date of its purchase by him non-
examination of his vendor by plaintiff was fatal and trial Court rightly drew adverse inference against plaintiff. It was submitted that, as the suit of the plaintiff was for declaration about existence of window and right of easement of passage of air and light through it, burden lie on plaintiff to establish said fact. It was further submitted that, plaintiff was claiming right of easement which existed prior to his purchase. therefore the same was required to be mentioned in the recitals of sale deed. In the absence of the same and failure of plaintiff to establish existence of window, finding of 12 trial Court on this fact was fully justified. It was further submitted that, the attempt of plaintiff by seeking permission to lead additional evidence to examine his vendor by filing an application before appellate Court was to fill gaps in evidence it was rightly rejected by appellate Court. Hence, the finding of the Courts with regard to failure of plaintiff to establish existence of window was a concurrent finding of fact and did not call for any interference in this appeal, and the appeal being devoid of merit deserved to be dismissed.
9. Heard the learned counsels, perused the impugned Judgments and Decrees, including copies of plaint, written statement, exhibits and depositions made available by learned counsel for appellant.
10. From the above, it is undisputed that plaintiff is absolute owner of suit schedule property. It is also not in dispute that there existed some open space to northern side of plaintiff's house. It is further not in dispute that the plaintiff's house has its main door opening towards western side into a public road. It is further not in dispute between parties that suit schedule house 13 exists as it was from date of its construction. However, dispute is with regard to very existence of window towards northern side of suit schedule house and about existence of public road towards northern side and its encroachment by defendants.
11. In order to establish his case, the plaintiff examined his son as P.W.1. In the examination-in-chief P.W.1 reiterated the plaint averments and got marked the notarized copies of sale deeds as Ex.P.3 and Ex.P.4; notarized copy of map as Ex.P.5; application given to CMC, Gangavati as Ex.P.6; Photographs as Ex.P.7 to Ex.P.30, etc., However, during cross-examination, it is elicited that there exist road towards the western side as well as towards the southern side of the house. It is elicited that a common wall exists between the plaintiffs house and the defendants running east to west and his house is on the southern side of the wall, while the defendants house lie on the northern side of it. It is further elicited that, there is a window in existence by the side of the main door. The response of P.W.1 to a suggestion that the plaintiff does not have any official documents to show the existence of the suit window, is in the negative. The suggestions that the plaintiff filed a 14 suit when the defendants demanded him to remove compound which was obstructing their ingress and egress to their open space as also the suggestion that the plaintiff had constructed a toilet and stairs on the public road which were objected to by the defendants and the plaintiff as a counter blast had filed the suit are however denied by P.W.1.
12. The plaintiff has also examined two of his neighbours as P.W.2 and P.W.3. P.W.2 in his examination-in-chief states that he knows the plaintiff and defendants of this case and that the plaintiff was the absolute owner of the suit schedule house. He further state about existence of suit window and its usage by the plaintiff for passage of light and air to his kitchen, from the date of purchase of the house. However, during cross-examination P.W.2 admits that he is a resident of Anegundi. He admits that, he has not produced any documents to show the house in which he is residing. It is elicited from P.W.2 that the house towards north of the common wall of the plaintiff's house belongs to defendant No.1.
13. P.W.3 also makes similar assertions as made by P.W.2, in his affidavit filed in lieu of examination-in-chief. In his cross- 15 examination he admits that he is a friend of plaintiff's son. On the other hand, defendant No.1 got himself examined as D.W.1. He states that his father Sri. Akbarsab and deceased Khadarkhan sold suit house and adjoining houses during the year 1976 and that plaintiff purchased it later. He states that suit house consists of only one room measuring 8 feet X 8 feet and did not have any kitchen room as claimed. In his cross-examination, it is elicited that defendant No.1 had objected to construction of toilet. It is elicited that a shed is constructed by them as depicted in Ex.P.22, Ex.P.25 and Ex.P.26. He admits a suggestion that there was some dispute between plaintiff and defendants regarding construction of toilet on public road by plaintiff. It is also elicited that there exists only one door to plaintiff's house. The suggestions that from the time of previous owners, suit window was used for passage of air and light is denied.
14. D.W.2 made similar assertions in his examination-in- chief, as made by D.W.1. In his cross-examination, he is confronted with Ex.P.22. He admits that in Ex.P.22 photographs, there exists a window.
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15. The reasons assigned by trial Court for answering issue nos.1 to 4 are that, right of easement is a special right attached to the property. Without its mention in conveyance deed, its existence has to be held doubtful. In addition, plaintiff's failure to examine his vendor to prove that he held such a right and conveyed it to plaintiff was fatal. Trial Court also considered admission of PW1 about existence of common wall between plaintiff's house and defendant's house, as disproving the easement claimed. It held that admission of existence of window by side of main door established that the easement claimed was not of necessity. It further held that mere marking of photographs does not establish existence of windows shown in them. The trial court cited failure of plaintiff to have got a Court Commissioner appointed, as fatal to his case.
16. On an examination of the said reasons, it is seen that the conclusions drawn are with due reference to the evidence on record. They are reasonable and not perverse. The first appellate Court after re-appreciating evidence dismissed the appeal. While doing so it carefully examined the plaint and noticed that plaintiff did not clearly mention exact location of suit window. He merely 17 stated that it is situated on the northern wall. The appellate Court noticed absence of mention about the easement in the title deed of the plaintiff; his failure to examine his vendor; his admission that the northern wall of his house is common wall with the defendant's house; and failure to get court commissioner appointed for purpose of establishing existence of window all led to finding against plaintiff. Insofar as application for additional evidence under Order 41 rule 27, appellate court noted that it was filed after conclusion of arguments. It was filed to examine plaintiff's vendor! While rejecting said application, appellate court has stated that the provision does not provide opportunity to a party to fill up gaps in evidence. The findings of appellate Court are based on evidence after re-appreciation and its conclusions are justified.
17. In this case, the plaintiff has, firstly, contended that there exists a public road towards north of suit schedule house. Hence, plaintiff would be dominant owner of easement claimed. As public road would vest with City Municipal Council, Gangavati, it would be servient owner. Therefore, it was required to be arrayed as party to the suit. In any case description of boundaries of suit 18 schedule property namely would reveal that no public road is mentioned as existing towards north of plaintiff's house.
18. On the other hand, plaintiff has also claimed that there existed an open space towards north of his plot. During cross- examination, P.W.1 admitted that it is defendants house that lies on northern side of common wall running from east to west. P.W.1 has also admitted that, he does not have any documents to show existence of suit window on northern side. It is highly unlikely for one to have a window on a common wall. The plaintiff's failure to show its exact location in the plaint, his failure to examine his vendor, non-mention of the easement in the title deeds are all relevant circumstances which are taken note of by the trial Court and first appellate Court. The dismissal of the suit and appeal are not solely on the ground that existence of window was not shown in sale deed of plaintiff. The Courts have considered other circumstances in this case. Though contents of Ex.P.3 & Ex.P.4 are sought to be pressed into service, in the absence of any explanation regarding difference between the boundaries in the sale deed with one under which plaintiff purchased suit schedule property and the 19 plaint schedule and admission of P.W.1 regarding existence of common wall between house of plaintiff and defendant as also the failure of plaintiff to examine his vendor the proposed substantial questions proposed cannot be held to arise for consideration in this appeal. Likewise there is clear admission by P.W.1 about existence of a window by side of main door on western side. This led to finding about alternative access. The same, as stated above, is not sole reason for arriving at conclusion. Hence, as none of substantial questions of law as proposed arise for consideration in this appeal. It is accordingly dismissed.
19. No order as to costs.
Sd/-
JUDGE *Svh/-