Karnataka High Court
Shri B N Jagannath vs Shri Raghavendra on 25 June, 2012
Author: A.S.Bopanna
Bench: A.S.Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 25th DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S.BOPANNA
RFA No.553/2011
BETWEEN :
SHRI B N JAGANNATH
S/O SHRI M NARAYANASWAMY
AGED ABOUT 39 YEARS
R/AT NO. 64/1, 3RD MAIN, 4TH CROSS
SEETARAMAIAH ROAD
GAVIPURAM EXTENSION
BANGALORE-560019 ...APPELLANT
( BY SRI VENUGOPAL M.S., ADV. FOR
M/S. A KRISHNA BHAT & ASSOCIATES)
AND :
SHRI RAGHAVENDRA
FATHERS NAME NOT KNOWN
AGED ABOUT 50YEARS
OWNER OF 'SAMPOORNA APARTMENTS'
R/AT NO. 65, 5TH CROSS
MALLESWARAM
BANGALORE-560003 ...RESPONDENT
( BY SRI RAMESH P KULKARNI, ADV.)
2
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 01.02.2011
PASSED IN O.S.NO.9439/2006 ON THE FILE OF THE VIII-
ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE
SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING :
JUDGMENT
The plaintiff in O.S.No.9439/2006 is before this Court in this appeal claiming to be aggrieved by the judgment and decree dated 01.02.2011. The appellant had instituted the said suit seeking for permanent injunction against the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property belonging to the plaintiff. The Court below has dismissed the suit.
2. The parties would be referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity.
3
3. The facts in a nutshell is that the plaintiff and defendant are the owners of the neighbouring properties. The plaintiff is the owner of the property bearing No.64/1 Old No.95 Ward No.49, Gavipuram extension, Bangalore- 19 measuring East to west 41 feet and North to South 21.6 ft. The property belonging to the defendant has a passage on the southern side of the plaintiff's property belonging and leading to the defendant's property which in fact is situated on the western side of the plaintiff's property. The plaintiff contends that on the southwestern corner of his property, both on the southern side as well as on the western side, there is a protrusion comprising of gray stone which is attached to his property and is situated within the extent which is claimed in the suit. The grievance put forth in the suit is that the defendant without any manner of right over the same is seeking to cut and remove the same. In effect such an effort is to interfere with the peaceful 4 possession and enjoyment of the property belonging to the plaintiff which measures East to west 41 ft and North to south 21.6 ft is the case. In that context, the contention is that the said gray stones are situated within the said extent of the property belonging to the plaintiff.
4. The case of the defendant however is that the said gray stones are not a part of the property belonging to the plaintiff. It is contended that it is beyond the extent owned by the plaintiff and is on the external side of the plaintiff's property and in the pathway of the property belonging to the defendant. It is contended that walls of the plaintiff's building is not constructed on the said gray structure which is only a protrusion and in fact the same was put up by the defendant as revetment since the property of the defendant was at a lower level. The defendant in fact had also made out a grievance with regard to the plaintiff having put up windows on the wall facing the pathway belonging to the 5 plaintiff and had therefore sought relief in that regard. In any event, it is contended that the removal of the gray stones would not affect the building of the plaintiff and therefore, the suit is frivolous and is liable to be dismissed.
5. The Court below on taking note of the rival contentions had framed as many as 4 issues initially and thereafter the additional issues were framed. The plaintiff in order to discharge the burden cast by the issues framed by the Court below, had examined himself as PW.1 and the documents at Exhs.P1 to P15 were marked. The defendant though had cross-examined the plaintiff, did not choose to tender any oral evidence. However, the photographs at Exhs.D1 to D15 were marked by confronting it to PW.1. In the light of the evidence available, the Court below has answered the material issues insofar as the instant grievance is concerned i.e., issue nos.2 and 3 in the negative against the plaintiff though issue No.1 was held 6 partly in the affirmative in favour of the plaintiff. The additional issues in any event have been held in the negative against the defendant. In that view the suit of the plaintiff was dismissed.
6. Learned counsel appearing for the plaintiff would contend that the Court below on having held the Issue No.1 in favour of the plaintiff to hold that the plaintiff is the owner of the property measuring East to West 41 feet and North to South 21.6 feet has wrongly arrived at the conclusion that the gray stones are not proved to be within the property of the plaintiff. The learned counsel would further contend that the trial Court has thereafter proceeded at a tangent while answering Issue Nos. 2 and 3. It is pointed out that the documents relied on by the plaintiff at Exhs.P1 to P7 would clearly establish the extent of the land which is owned by the plaintiff. In that context, the documents at Exhs.P8 to P13 would in fact reveal that the 7 gray stones which are being sought to be cut and removed by the defendant is in the area belonging to the plaintiff. It is his case that the Court below has not properly appreciated the said material and on the other hand has wrongly drawn adverse inference against the plaintiff for certain acts which in any event was not a burden on the plaintiff to prove the said aspect. It is his case that the plaintiff is the fourth purchaser of the property and therefore, the fact situation with regard to the manner in which the wall was constructed in any event would not have been within the knowledge of P.W.1 and non- production of the plan as noticed by the trial Court was not at all a relevant document and therefore in that context, no adverse inference could have been drawn. Learned counsel would further contend that the very appearance of the structure would indicate that if the same is meddled, the building of the plaintiff would suffer damage and such nuisance cannot be permitted and atleast, in this regard, the 8 Court below ought to have adverted to this contention. The learned counsel would also contend that when the defendant has not entered the witness box and has not stated his case by way of evidence, the plaintiff has been denied the opportunity of cross-examining him and such act of the defendant should have been held against him and the suit should have been decreed. It is therefore contended that the judgment of the Court below is not sustainable.
7. Learned counsel for the defendant would however seek to sustain the judgment passed by the Court below. The learned counsel would point out that the mere finding of the Court below that the plaintiff is the owner of the property measuring East to west 41 ft and North to south 21.6 ft would not advance the case of the plaintiff any further. The grievance essentially in the suit was with regard to the existence of the gray stones and it was contended by the plaintiff that the same is situated within 9 the extent owned by the plaintiff. Except for relying on the title documents to indicate title to the property measuring East to west 41 ft and North to south 21.6 ft, there is absolutely no evidence whatsoever before the trial Court to indicate the commencement point for measurement and to indicate that the property of the plaintiff extends beyond the gray structure which the plaintiff claims to be within his property. In that view, when the material issues in the suit had cast the burden on the plaintiff and when the plaintiff had not discharged the initial burden as contemplated under Section 101 of the Evidence Act, the burden had not shifted on the defendant and therefore the non-examination of the defendant would not affect the case of the defendant. At best, the non-examination of the defendant would only affect the additional issues by which the burden had been cast on the defendant. In that regard in any event the same had been held in the negative against the defendant. With regard to the other issues, the non-examination of the 10 defendant is not material. Therefore, the trial Court having noticed all the documents which were available and in that regard, when the documents at Exhs.D1 to D15 also indicate the location of the property, the trial Court was justified in denying relief to the plaintiff and the judgment and decree does not call for interference.
8. In the light of the rival contentions put forth before me and considering that in the instant first appeal, this Court would have to reappreciate the evidence which have been put forth by the parties before the Court below, the same is appreciated. In this regard as contended by the learned counsel for the plaintiff, the documents at Exhs.P1 to P7 are the title documents and revenue documents pursuant to the purchase of the property. It is no doubt true that the said documents indicate that the measurement of the property is 41 ft East to west and 21.6 ft North to south. Therefore, to the extent that the plaintiff is the owner of the 11 property indicated in the schedule, there can be no doubt and in any event, the Court below has held that the said issue partly in the affirmative in favour of the plaintiff. But, the question however is as to whether the gray stones could be considered to be situate in the said extent of the property which has been claimed by the plaintiff. In order to establish this fact, the plaintiff has relied on the photographs which are produced and marked at Exhs.P8 to P13 and the negatives have been marked at Exh.P14. The rough sketch has been marked at Ex.P15. At the outset, it is to be stated that no importance could be attached to the sketch at Ex.P15 since the same is not an authenticated copy of any official records. However, in the said sketch the plaintiff himself has marked certain portions to indicate the extent which belongs to him. Even if the said sketch is taken into consideration and the very photographs produced by the plaintiffs at Exhs.P8 to P13 are perused, a particular reference to the photograph at Ex.P10 would indicate the 12 actual location of the gray stones regarding which the allegation that the defendant is attempting to cut and remove the same is made. The said photograph would indicate a wall running from east to west which admittedly is the plaintiff's wall. The gray stones which are now alleged to be cut by the defendant is located at the hind corner of the building belonging to the plaintiff and is at the entrance of the building belonging to the defendant. If the same is looked at keeping in view the position of the wall which is running from the northeastern corner, it appears that gray stones are beyond the property owned by the plaintiff. It is no doubt true that the plaintiff contends and has also stated in the evidence as PW.1 that the area measuring 21.6 ft extends beyond the wall and the gray stones is within that area. To establish this fact, there is absolutely no documents whatsoever irrespective of the fact as to whether the trial Court was justified in drawing adverse inference for non-production of the plan and not 13 examining the erstwhile owner Sri Sathyanarayana. The fact remains that even at this juncture, the plaintiff has not produced any other documentary evidence to indicate that the property of the plaintiff which measures East to West 21.6 ft extends beyond the said wall which I have referred to by looking at Ex.P10 and that 41 ft is beyond the wall on the western side. Therefore, in such circumstance, when the thing speaks for itself inasmuch as the building of the plaintiff having been constructed nearly 30 years ago and if there are protrusions beyond the wall and if the plaintiff were to claim that the said structure exists within the property owned by the plaintiff, there is something more that was required to be done by the plaintiff to prove his case and the mere reliance on the title documents which indicate the measurement was not sufficient in the facts of the present case. In any case, it was not for the Court to collect evidence by appointing a Commissioner. 14
9. Having arrived at the said conclusion and having noticed issue Nos.2 and 3 wherein the burden has been cast on the plaintiff to indicate these aspects of the matter, with regard to the interference by the defendant with the enjoyment of the property by the plaintiff, the mere non examination of the defendant would not affect the case of the defendant, when the plaintiff has not proved his case and discharged the initial burden. Therefore, insofar as the trial Court denying the relief of permanent injunction, in the manner it has been done, notwithstanding the contention which has been put forth by the learned counsel for the appellant, the same does not appear to be erroneous.
10. However, the above discussion in any event would indicate that though the plaintiff has not proved that the gray stones are within the property belonging to the plaintiff, the photographs which are produced by the plaintiff at Exhs.P8 to P14 and at Exhs.D1 to D15 would 15 indicate that the gray stones appear to be attached to the wall belonging to the plaintiff. To that extent, the absence of any material or evidence tendered by the defendant with regard to the nature of the wall would indicate that there is no clarity with regard to the true extent of the wall as to whether the same lies beneath the soil surface or not. But, what is seen is only what is visible to the naked eye. To the said extent, in any event, the defendant should be directed to remove the wall if the intend to do so only in the manner which would be indicated hereinbelow. To the said extent, in my view, the judgment and decree would call for modification.
11. In the result, I pass the following order:
i) The judgment and decree dated 01.02.2011 passed by the Court below insofar as rejecting the prayer for injunction in the manner as sought by the plaintiff is affirmed.
ii) However, in partial modification of the judgment 16 and decree, the defendant is directed that the gray stone shall not be removed beyond the ground level which is evident in the photographs at Exhs.P8 onwards and D1 onwards.
iii) The gray stone to be cut by the defendant shall be done only by mechanised process by using drilling or cutting machines and shall not be done by manual hammering.
iv) The defendant, in any event, while carrying out the work, shall have the same supervised by a qualified structural Engineer.
v)The modified decree in the above nature shall be drawn by the registry.
The appeal stands disposed of in the above terms. No costs.
Sd/-
JUDGE akc/bms