Karnataka High Court
Kasturi W/O. Sadashiv Meti vs Kadappa S/O. Tippanna Payagond on 16 February, 2022
1 R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
M.S.A.NO.537 OF 2013
BETWEEN:
1. SMT. KASTURI
W/O SADASHIV METI,
AGED ABOUT 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.
2. SRI. PRAKASH
S/O SADASHIV METI,
AGED ABOUT 23 YEARS,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.
3. KUMARI SHOBHA
D/O SADASHIV METI,
AGED ABOUT 21 YEARS,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.
4. SRI.SURESH
S/O SADASHIV METI,
AGED ABOUT 20 YEARS,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.
...APPELLANTS
2
(BY SRI.ANIL KALE & SRI.BASAVARAJ BYAKOD, ADVOCATES)
AND:
SRI. KADAPPA S/O TIPPANNA PAYAGOND,
AGED ABOUT 61 YEARS, OCC: COOLIE,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.
...RESPONDENT
(BY SRI.K.L.PATIL, ADVOCATE)
THIS MSA IS FILED U/O 43 RULE 1(U) OF CPC PRAYING TO
CALL FOR THE RECORDS, ALLOW THIS APEPAL AND SET ASIDE
THE JUDGMENT AND DECREE DATED: 31.01.2013 PASSED IN
R.A.NO.25/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT JAMAKHANDI AT JAMAKHANDI.
THIS MSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.01.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned miscellaneous second appeal is filed by the appellants/defendants questioning the judgment and decree dated 31.01.2013 passed by the Fast Track Court, Jamakhandi, in R.A.No.25/2008 in remanding the matter to the trial Court for fresh consideration.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The facts leading to the case are as under:
The controversy between the parties revolves around the dispute in regard to "AB" wall of defendants. The sketch would be relevant to understand the rival claim of defendants and the plaintiff, which is extracted as under:4
The plaintiff filed the suit for mandatory injunction and also claimed perpetual injunction against the defendants. The plaintiff claims to be owner of the property bearing CTS No.3239A/3 and the same is shown by letters "ABEFG" shown in the sketch. It is further contended that the defendants are the owners of the house bearing No.3239A/4 which is referred by the letters "BCDE" in the sketch. The husband of defendant No.1 and father of defendants 2 and 3 namely Sadashiv Meti though initially stopped the construction as plaintiff lodged complaint before the TMC, Jamakhandi, the 5 defendants however highhandedly and illegally has put up a beam on plaintiff's "AB" wall extending upto the point "H". The plaintiff's contention is that the defendants have made illegal construction without any permission from the TMC, Jamakhandi. The plaintiff also contended that though he has lodged complaint with TMC, the authority has not taken any action to restore the original position. The plaintiff alleges that defendants are highly influential persons and therefore, apprehending that defendants may put up illegal construction by encroaching the plaintiff's property has filed the suit seeking relief of mandatory injunction and also consequential relief of perpetual injunction.
In response to summons, the defendants tendered appearance before the Court and filed written statement and stoutly denied the entire averments made in the plaint. The defendants specifically contended that northern wall is a joint wall and the same is indicated in the sale deed of defendants executed by the erstwhile owner namely Basappa Payagond 6 who is none other than the brother of the plaintiff. The specific allegation that defendants have highhandedly constructed beam on plaintiff's AB wall extending upto point "H" is stoutly denied by the defendants and specifically contended that "ABE" wall is a common wall of plaintiff and defendants, which is of considerable length and width. The defendants specifically contended that the common wall measures 9 inch in width towards defendants' side and this portion is demolished and the same is replaced by a brick wall. Further, the RCC slab is constructed on the said brick wall projecting 3 inches width sajja throughout the frontage. Further, it is specifically contended that 9 inch width brick wall is raised through out the length of "ABE" wall over which RCC beam has been laid and the allegations made in the plaint are frivolous and false. Therefore, the defendants requested to dismiss the suit.
The plaintiff in support of his contention examined himself as P.W.1 and adduced documentary evidence vide 7 Exs.P1 to P5. By way of rebuttal evidence, the defendants examined defendant No.2 as D.W.1 and their vendor as D.W.2 and have produced rebuttal documentary evidence vide Exs.D1 to 7.
The trial Court having assessed the oral and documentary evidence has answered issue No.1 in the negative by recording a categorical finding that plaintiff has failed to prove that 'AB' wall is an exclusive wall. While answering Issue Nos.2 and 3, the trial Court has also held that the plaintiff has also failed to prove that defendants have put up a beam on 'AB' wall and thereafter, constructed other structure by encroaching over plaintiff's property at 'BH' point on the southern side abutting to plaintiff's 'AB' wall. The trial Court having meticulously examined the oral and documentary evidence has recorded a categorical finding that "ABE" wall which divides the plaintiff's and defendants' property is a common wall between the plaintiff and his brother Basappa who is examined as D.W.2. The trial Court has recorded a 8 categorical finding that "ABE" wall is in existence even prior to partition. The trial Court was of the view in that Ex.D5, which is the sale deed executed by D.W.2 in favour of defendants would also indicate that "ABE" is a common wall. The trial Court has also found in the cross-examination that "ABE" wall is in a single line alignment and there was a partition between the plaintiff and D.W.2 wherein "BCDE" portion was allotted to defendants' vendor and "AEFG" portion was allotted to plaintiff's share. It is in this background, trial Court has arrived at a conclusion that there is absolutely no evidence to demonstrate that 'AB' wall as shown in the sketch is the exclusive wall of plaintiff. Therefore, the trial Court having appreciated oral and documentary evidence proceeded to dismiss the suit by holding that the plaintiff is not the exclusive owner of "AB" wall and the construction made by defendants is not illegal as alleged by plaintiff. On these grounds, the trial Court was of the view that the plaintiff is not entitled for the relief of mandatory injunction. 9
The plaintiff feeling aggrieved by the dismissal of the suit preferred an appeal before the first appellate Court in RFA.No.25/2008. The first appellate Court on re-appreciation of oral and documentary evidence was of the view that the trial Court has not properly appreciated oral and documentary evidence and has hurriedly relying on the judgment cited by the defendants has proceeded to dismiss the suit. The first appellate Court was of the view that the extended construction put up by defendants wherein the frontage of the plaintiff's house, which is abutting the public road, appears to be affected by this construction. The first appellate Court has also found that the defendants are guilty of deviating from the approved plan and having referred to Exs.D6 and D7 has come to the conclusion that the defendants have not left 1 meter distance as per the approved plan vide Exs.D7. The first appellate Court has laid more emphasis on the fact that the defendants have not placed any material on record to prove that the act of putting up beam on the wall falls within the 10 ambit of negligible deviation and therefore, has come to the conclusion that unless the TMC authorities and the Town Planning Authorities conduct local inspection of the building owned by plaintiff and defendants and ascertain whether the construction made by defendants is within the permissible or negligible deviation which would enable the defendants to seek compounding of said deviation, the lis between the parties cannot be effectively decided properly. It is in this background, the first appellate Court has come to the conclusion that the presence of TMC and Town Planning Authority is very much necessary for effective adjudication of the lis between the parties. The first appellate Court was of the view that the trial Court ought to have taken recourse to seek local inspection by a Civil Engineer to ascertain the factual matrix in the present case on hand.
The first appellate Court on these set of reasoning has come to the conclusion that the judgment and decree of the trial Court is not at all sustainable and therefore, the first 11 appellate Court was of the view that trial Courts can arrive at a proper conclusion only when there is a finding as to whether there is a deviation and if at all there is deviation, whether it is permissible within the permissible limits. Therefore, the first appellate Court was of the view that the matter requires de- novo trial and has accordingly proceeded to allow the appeal and thereby set aside the judgment and decree of the trial Court with a direction to the plaintiff to implead the Chief Officer of TMC, Jamakhandi and the Secretary, Town Planning Authority, Jamakhandi.
It is against this remand order, the defendants are before this Court in this appeal.
4. The learned counsel appearing for the defendants would take this Court through the sketch and vehemently argue and contend that the judgment and decree of the first appellate Court suffers from serious perversity and the same is in contravention of the mandatory provisions of Order XLI Rules 30 and 31 of CPC. He would further submit that the 12 actual lis between the parties was as to whether "AB" wall is a common wall or is exclusively owned by the plaintiff. The trial Court on appreciation of the oral and documentary evidence has answered Issue No.1 in the negative and thereby has held that the plaintiff has failed to prove that the "AB" wall is the exclusive wall of plaintiff. This finding is not at all reversed by the first appellate Court. He would submit that the entire judgment does not indicate that the finding recorded by the trial Court on Issue Nos.1 and 2 is set aside by the first appellate Court. Therefore, he would submit that without reversing the finding of the trial Court on Issue Nos.1 and 2, the conclusion arrived at by the first appellate Court on a totally different footing was unwarranted and was beyond the scope of enquiry in the present case on hand. He would submit that the entire controversy would revolve on the nature of the 'AB" wall. If the "AB" wall is held to be a common wall then the question of encroachment, deviation would be of no consequences. In the present case of hand, both the 13 properties are facing road. The plaintiff who has also put an elevation on the front side cannot have a grievance against the defendants who have also extended by putting up an elevation at the portion BHIC and that the elevation would not affect or interfere with the plaintiff's right of enjoyment over his property. Secondly, he would submit that if the building is not in accordance with law, then the adjoining owner has an independent remedy. Under Section 187 (7)(1) of KMC Act, any violation of building bye-laws has to be decided by a competent authority under the provisions of the local Act. Therefore, he would submit that the direction to implead the TMC and Town Planning Authority was totally unwarranted and by impleading, the first appellate Court has virtually embarked upon encroaching over the power of authorities to deal with constructions under the provisions of KMC Act. On these set of grounds, he would submit that the remand order does not satisfy the ingredients of Order XLI Rule 23 of CPC. 14
5. Per contra, learned counsel appearing for plaintiff repelling the arguments canvassed by the learned counsel for the defendants would submit to this Court that defendants have put up construction by violating the building plan and therefore, the presence of the authorities would enable the Court to adjudicate the controversy between the parties effectively and therefore, the remand order passed by the first appellate Court is in accordance with law and does not warrant any interference at the hands of this Court. He would further contend that suit "AB" wall is the exclusive wall of the plaintiff and the defendants have constructed their house by illegally encroaching over the exclusive "AB" wall. He would also submit that there are several admissions given by D.W.1 in the cross-examination and the trial Court erred in ignoring those categorical admissions and the first appellate Court having re-appreciated the evidence on record was justified in holding that the matter in controversy cannot be resolved without having recourse to local inspection by appointing a 15 Court Commissioner. Therefore, the learned counsel for the plaintiff submits that having regard to the nature of the controversy between the parties, the remand was inevitable and this aspect has been dealt by the first appellate Court and the defendants have not brought to the notice of this Court the illegalities or infirmities in the remand order passed by the first appellate Court.
6. Heard the learned counsel for the defendants and the learned counsel for the plaintiff.
7. The plaintiff's specific contention is that "AB" wall is his exclusive wall. Admittedly, the entire block which is divided by a common wall was originally owned by the plaintiff's family. It has come in the evidence that the property bearing No.3239A/3 was allotted to plaintiff's share and whereas the property bearing 3239A/4 was allotted to the brother of plaintiff namely Basappa Tippanna Payagond. What emerges from this material aspect is both the properties are ancestral 16 properties of the plaintiff's family. The defendants' ancestor has purchased property bearing CTS No.3239A/4. Plaintiff's property bears sub-division "3" whereas the defendants property bears sub-division "4". These significant details clearly indicate that earlier the property bearing No.CTS 3239A was one compact block. Now on account of partition, southern portion has fallen to the vendor's share of defendants. Though plaintiff admits that "BE" wall is a common wall, however, disputes that "AB" wall is not common wall but it is his exclusive wall. The trial Court having referred to the material on record has come to the conclusion that "ABE" wall is a common wall. There is a categorical finding by the trial Court that "ABE" wall is in single line alignment. Plaintiff's claim that only "BE" portion of the wall is common and while "AB" wall is his exclusive property. To substantiate his claim, no documentary evidence is produced. By way of rebuttal evidence, defendants have produced a copy of the sale deed at Ex.D5 executed by D.W.2 who is none 17 other than the brother of plaintiff. The trial Court has referred to the boundaries mentioned in Ex.D5-sale deed and having gone through the recitals the trial Court has found that the boundaries to the defendants' property towards northern side is shown as a common wall.
8. If the plaintiff has admitted in cross-examination that "ABE" wall is in single line alignment and when the said fact is further corroborated by the recitals in the sale deed executed by the brother of the plaintiff as per Ex.D5, the first appellate Court being a final fact finding authority was required to independently assess the ocular and documentary evidence and also the pleadings. The first appellate Court was also required to examine the sketch which is placed on record, which is not in dispute. If the sketch is meticulously examined and thereafter if the controversy between the parties is looked into, it was bounden duty of appellate Court to record its finding on the title of plaintiff over "AB" wall. On meticulous examination of the reasons recorded by the first 18 appellate Court, this Court would find that the first appellate Court has not at all reversed the findings of the trial Court recorded on issue Nos.1 and 2. The question as to whether "AB" wall is a common wall or is exclusively owned by the plaintiff needs to be adjudicated first and thereafter, the question as to whether the construction carried out by the defendants by erecting a beam in his side of the common wall would infringe the rights of the plaintiff would need further adjudication. The first appellate Court's judgment is absolutely silent insofar as the findings of the trial Court recorded on Issue Nos.1 and 2.
9. If the reasons assigned and conclusions arrived at by the first appellate Court are examined, I am of the view that though the suit was contested on various issues and parties were afforded full opportunity to lead evidence and thereafte the trial Court has arrived at a conclusion having referred to the evidence lead in by the plaintiff and rebuttal evidence lead in by the defendants, the first appellate Court 19 has not assigned any reasons while setting aside the judgment and decree of the trial Court. The first appellate Court's judgment does not even mention as to on what grounds he thought it fit to reverse the decree of the trial Court and therefore, I am of the view that the remand order passed in the present case on hand is illegal. The reversal is not a matter of formality but of substance. The decree of trial Court has to be set aside under each issue, since that is not done, the order of the first appellate Court in setting aside the decree and remanding the matter is liable to be set aside.
10. The first appellate Court without any sufficient cause has ordered for re-trial and this could have been possibly avoided. Remand is possible only when first appellate court arrives at a finding that judgment of trial court is erroneous and is liable to be reversed or set aside. To consider remand, there has to be plea by appellant and then make out a case of remand on facts. Section 107(2) of CPC does invest the Appellate Court with some powers that are conferred on 20 Court on original jurisdiction. It is a trite law that it is a bounden duty of the Appellate Court to see whether the evidence taken as a whole can reasonably justify the conclusion which the Trial Court arrived at or whether there is an element of improbability arising through a number of circumstances which in the opinion of the Court outweighs such finding.
11. The first appellate Court has got carried away by going into the controversy of deviation in regard to construction done by the defendants. In a suit for mandatory injunction, the Court is required to examine whether there is a illegal construction by encroaching upon the plaintiff's property. Therefore, the primary issue which was required to be re-examined by the first appellate Court was whether 'AB' wall is a common wall, when admittedly the substantial portion of that wall which is referred as "BE" wall is admitted by plaintiff that it is a common wall. If 'BE" portion of the wall is a common wall then the burden is on the plaintiff to 21 establish that the same portion of the wall which is referred as "AB" portion is his exclusive wall. The controversy in regard to deviation in construction and violation of building plan falls within the domain of the authorities under the Karnataka Municipal Corporations Act. The violation of the building plan has to be examined by the authority and the same cannot be examined by a civil Court. The appellate Court has directed the plaintiff to implead the local authorities to ascertain the deviation. It is on this ground that the appellate Court has ventured into setting aside the judgment and decree of the trial Court.
12. This Court is of the view that the officials of the Karnataka Municipal Authorities and Town Planning Authorities are not at all necessary parties and their presence is not at all required to effectively adjudicate the claim of plaintiff and defendants over the common wall. The plaintiff is required to establish his exclusive right over the "AB" wall. In the present case on hand, the plaintiff is alleging that "AB" wall is his 22 exclusive wall and therefore, he is alleging that construction is by encroaching upon his property. Secondly, it is also contended that construction put up by the appellants/defendants towards front portion of his property facing road. Both the properties are facing road. As rightly contended by the counsel for the appellants/defendants, the authorities vested with power to examine any construction in violation of the building bye-laws and there is a remedy under Section 187(7)((b)(i)(ii) of the Karnataka Municipalities Act, 1964 and it is the Municipal Commissioner who is vested with power, on satisfaction, to take any action against any construction or erection of a building in contravention of building bye-laws and this remedy available under Section 187(9)(a) of the Karnataka Municipalities Act, 1964. This remedy is independent remedy and the same is available under the provisions of Karnataka Municipalities Act, 1964. The first appellate court by directing the respondent/plaintiff to implead the officials of Karnataka Municipality authorities 23 and Town Planning authorities has virtually usurped over the jurisdiction of authorities under the provisions of Karnataka Municipalities Act, 1964. The issue relating to deviation of construction and building in contravention of bye-laws has to be independently examined by the officials and not by civil court.
13. Section 9 of CPC provides that courts shall (subject to the provisions contained therein), has jurisdiction to try all suits of civil nature except suits in respect of which taking of cognizance is expressly or impliedly barred. Thus, the jurisdictional of civil courts embraces all disputes except to the extent it is excluded by express provision of law or by clear and unambiguous intendment arising from such law. Section 187 of Karnataka Municipalities Act, 1964 clearly amounts to ouster of jurisdiction of civil court. The said Act is self- contained code and provides an independent mechanism. In Lalaram Swarup and Ors. Vs. Shikar Chand and Anr.1, a 1 1966 SC 893 24 Constitution Bench of Apex Court has formulated following tests:
"The two tests, which are often considered relevant in dealing with the question about the exclusion of civil courts' jurisdiction are (a) whether the special statute which excludes such jurisdiction has used clear and unambiguous words indicating that intention, and (b) does not statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions. Applying these tests the inference is inescapable that the jurisdiction of the civil courts is intended to be excluded.
The bar excluding the jurisdiction of civil courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity."
14. The first appellate court by remand intends to find out as to whether the appellant/defendant has violated building bye-laws and as to whether there is any deviation. Construction in violation of building bye-laws, any frontal projection to the building are squarely covered under Section 187 of the Karnataka Municipalities Act, 1964. Therefore, the 25 finding of the first appellate court that the matter requires de novo trial and the plaintiff has to implead Chief Officer, TMC, Jamakhandi and Secretary of Town Planning Authority on the ground that they are necessary parties to the suit and further finding that the trial court has to appoint a technical person to secure an report are squarely covered under the above said section. The statutory right of an authority to deal with constructions either in excess of permissible floor area or violation in regard to setback are issues which are totally vested with the authorities under the provisions of Karnataka Municipalities Act, 1964. Therefore, aforesaid finding recorded by the first appellate court is palpably erroneous, perverse and the said observation made by the first appellate court are hit by Section 9 of CPC.
15. It is in this background, I am of the view that directions of the first appellate court to implead the officials of local authorities is one without jurisdiction and the said finding is palpably erroneous and suffers from perversity. By directing 26 to implead the officials of local authorities, the first appellate court has virtually expanded the scope of enquiry which was unwarranted.
16. The plaintiff has already let in evidence and it is not his case that sufficient opportunity was not given to lead his evidence. No additional evidence is also sought to be produced before the appellate Court. It is in this background, this Court would find that the appellate Court was not justified in adopting the course of action of remand. What is lost sight of by the appellate Court is that remand has to be resorted to only in special circumstances as indicated in the Rules. The Apex Court in catena of judgments has deprecated the practice of remand. Remand has got the tendency of delaying the final decision unduly and that may often lead to harassment and undue loss to the parties. What the appellate Court has not taken note of is that unwarrant remand gives litigants an undeserved lease of life and therefore, must be avoided. The appellate Court suo-motu has raised a new plea 27 in regard to deviation and has proceeded to remand the order. There cannot be an order of remand for retrial on fresh evidence excepting in rare circumstances where there has been no proper or regular trial and prejudice has bee caused. The permission of the courts for retrial has to be resorted to by the appellate court only in a situation where either party specifically prays for it. If a party seeks leave to lead further evidence, in such situation, the appellate court has to examine whether case on hand would warrant fresh evidence to be led in. Therefore, the order of remand is contrary to Rule 23A to 25 of Order XLI of CPC and judgment rendered by this court in Shanthaveerappa vs K.N. Janardhanachari2.
17. The first appellate court has not independently assessed the actual lis between the parties and has not independently considered the evidence on record in the background of the dispute between plaintiffs and defendants who are adjoining owners. What the appellate court lost sight 2 ILR 2007 KAR 1127 28 of is that supplementing of appreciation is contemplated at the appellate stage under Order XLI Rule 1 of CPC and independent appraisal of the evidence is the duty of the appellate court. Failure to do and discharge duty is an abdication of appellate power. It is the appellant court's duty not to find out whether there is perversity in the trial court's judgment but whether it is wrong. There is wide difference between a wrong conclusion and a perverse conclusion. The conclusion arrived at by the first appellate court is also contrary to the principles laid down by the Hon'ble Apex Court in the case of Shasidhar and Ors. v. Smt.Ashwini Uma Mathad and Anr3 and also judgment rendered by in the case of Madhukar and Others Vs. Sangram and Others4. The Apex Court in Madhukar (supra) held that, while examining the judgment of trial court, the appellate court has to render its finding only after dealing with all the issues of law as well as of fact and with the oral as well as documentary evidence, 3 AIR 2015 SC 1139 4 (2001) 4 SCC 756 29 led by the parties. The court must give reasons in support of its findings and the reasons of the trial court are to be dealt on all the issues and cogent reasons are to be assigned. I am of the view that the first appellate Court has acted in excess of its powers and has totally mis-appreciated the true controversy between the parties. The appellate Court has also not complied the mandatory provisions of Order XLI Rules 30 and 31 of CPC.
18. For the foregoing reasons, I am of the view that the remand order passed by the lower appellate Court is not at all sustainable.
Hence, I pass the following:
ORDER The miscellaneous second appeal is allowed.
The judgment and decree passed by the first appellate Court is set aside.30
The appellate Court shall formulate appropriate points which would arise for consideration in the context of issues framed by the trial Court and shall independently assess the ocular and documentary evidence lead in by the parties and decide the case by strictly following the mandatory provisions contemplated under Order XLI Rules 30 and 31 of CPC.
Sd/-
JUDGE *alb/-