Karnataka High Court
Mrs Rathima Bai Yousufali vs Mr Ashraf Fazal on 4 August, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1783 OF 2013 (INJ)
BETWEEN:
MRS RATHIMA BAI YOUSUFALI
W/O YOUSUFALI
AGED ABOUT 65 YEARS
R/O PORTION OF D NO.9-17-647
J M ROAD, BUNDER
MANGALORE-575004
... APPELLANT
(BY SRI.SUYOG HEDGE E, ADVOCATE FOR SRI.SACHIN
B.S., ADVOCATE)
AND
MR ASHRAF FAZAL
S/O LATE J M FAZALALI
AGED ABOUT 55 YEARS
R/O D NO.9-16-631
J M ROAD, BUNDER
MANGALORE-575004
...RESPONDENT
(BY SRI.K.ANANDARAMA AND SRI.PRASHANTH,
ADVOCATES)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGEMENT &
DECREE DTD 5.8.2013 PASSED IN R.A.NO.166/2002 ON
2
THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE & JMFC.,
MANGALORE, D.K, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DTD 11.4.2002
PASSED IN O.S.NO.66/1998 ON THE FILE OF THE II ADDL.
CIVIL JUDGE (JR.DN) MANGALORE.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The captioned Second Appeal is filed by the defendant feeling aggrieved by the divergent judgments and decrees of the Courts below.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. Plaintiff at first instance instituted a bare suit for injunction in O.S.No.66/1998 by specifically alleging that defendant is trying high handedly to alter the nature of the property. The plaintiff also alleged that defendant has forcibly and illegally opened the door on the southern wall after filing of the suit and therefore, sought relief of mandatory injunction against defendant herein. 3 [
4. Per contra, defendant on receipt of summons contested the proceedings by filing written statement and stoutly denied the entire averments made in the plaint. At paragraph No.9 of the written statement, defendants claimed that there is small opening measuring 3 feet width and 4 feet height to enable the women folk to have access from the house situated in the schedule property. Defendant has claimed that the said opening is a small door which was in a dilapidated condition and therefore, defendant intends to carryout repair and replace the dilapidated door with the new door. Therefore, prayed for dismissal of the suit.
5. Plaintiff and defendant to substantiate their respective claims have led in oral evidence and also produced documentary evidence. The trial Court having examined oral and documentary evidence, dismissed the suit by holding that plaintiff has failed to prove that the acts of defendant has resulted in damage to the suit schedule property. Therefore, the Trial Court was of the 4 view that plaintiff is not entitled for relief of mandatory injunction.
6. Feeling aggrieved by the judgment and decree of the Trial Court, plaintiff preferred an appeal before the Appellate Court in R.A.No.166/2002. The Appellate Court being final fact finding authority has independently assessed oral and documentary evidence led by both the parties. The Appellate Court on meticulous examination of material on record coupled with commissioner's report has however, come to conclusion that defendant is virtually trying to fix a door in the suit schedule premises. Having perused the photographs, the Appellate Court was of the view that defendant is trying to extend the width of the door which is not permissible as all the parties to the suit are tenants in common and none of the parties to the suit have got the absolute right over the residential house. Referring to Exs.P.1 to P.7 and also having examined the evidence of both the parties, referring to the admissions tendered by P.W.1 in cross examination has recorded a 5 categorical finding that defendant has failed to prove the existence of small door as alleged in the written statement. On these set of reasoning, the Appellate Court has decreed the suit and thereby defendant is directed to close the opening and restore it to its original position by granting relief of mandatory injunction.
7. Heard learned counsel appearing for the defendant and learned counsel appearing for the plaintiff. Perused the judgments rendered by the Courts below.
8. The defence set up by the defendant at paragraph No.9 of the written statement would virtually clinch the actual controversy between the parties. Therefore, this Court deems it fit to cull out paragraph No.9 of the written statement which reads as under;
"There is a passage between the house of sister of the defendant and the house situated in the schedule property. In the northern side of the passage, bathroom and toilet are situated for the house of the defendant. On the southern side of the passage there is a small opening of 3.ft width 6 and 4.ft. height so as to enable womenfolk to have access from the house situated in the schedule property and to the house of sister of the defendant and vice-versa. The said opening is nothing but a small door which was mouth-eaten and resulted in dilapidated condition. In view of such condition, there was great insecurity to the inmates of the house situated in the schedule property, namely, the defendant and her family. Therefore, the thought it fit and expedient to replace the said dilapidated door with new door and accordingly, she had fixed a new door in place of old one. The new door is slightly bigger than the old door so far as the height is concerned. There has been family understanding between the family of the defendant and the plaintiff. The plaintiff has been harassing the defendant and her daughter in divergent ways besides teasing the daughter of the defendant ignoring the fact of his relationship with her. The defendant and her daughter had protested the act of high-handedness of the plaintiff and as a result, they have invited the wrath of the plaintiff. the plaintiff has been openly declaring that the will teach a lesson one day or the other and has been waiting for an opportunity. When the defendant has removed the old door under the circumstances stated above, the plaintiff had rushed to this with false contention and allegations against the defendant."7
9. At paragraph No.9 of the written statement, defendant has specifically contended that there is a small opening measuring 3 feet width and 4 feet height. The defendant also claimed that there is new door now fixed the height of which is slightly bigger than the old door and this door is fixed with the consent of the plaintiff. Defendant claim that there is a understanding between the family of defendant and plaintiff. Therefore, the entire controversy has to be examined in the context of pleadings set up at paragraph No.9 of the written statement. Therefore, the entire burden was on the defendant to establish that the southern wall had a small opening. Further the burden was also on the defendant to establish that there was a family arrangement by which defendant was permitted to fix the door on the southern wall. These necessary facts are not substantiated by the defendant either by leading oral evidence or by producing any documentary evidence. The material on record clearly demonstrates that the suit property is not absolute 8 property of the defendant. The parties are tenants in common, therefore without the consent of other co- sharers, defendant could not unilaterally fix the door. Therefore, the Appellate Court is justified in granting relief of mandatory injunction.
10. The judgment rendered by the Trial Court is contrary to the pleadings averred in the written statement and also contrary to the material on record. The judgment rendered by the Trial Court is also contrary to categorical admissions elicitated in cross examination of defendant. The serious objection raised by plaintiff and the reasons for objecting is elicitated in cross examination of defendant. Plaintiff is compelled to file the present suit as defendant intended to have a door right in front of toilet which is being used by the plaintiff. The Trial Court has also taken note of the fact that the parties belongs to Mohammadan and they do practice 'pardah'. Therefore, on two counts plaintiff is entitled for relief of perpetual injunction as well as mandatory injunction. One is defendant as a co-sharer 9 cannot unilaterally alter the character of the suit schedule property, which is a residential house. Secondly, by opening a door cannot create nuisance which would effect the privacy of plaintiff. All these significant details were conveniently over looked by the Trial Court. The Appellate Court being the final fact finding authority, has rightly examined all significant details and has reversed the judgment and decree of the Trial Court. Therefore, no substantial question of law would arise for consideration.
Accordingly, the regular second appeal is dismissed.
In view of dismissal of second appeal, all pending applications if any, do not survive for consideration and accordingly, stand disposed of.
Sd/-
JUDGE HDK