Karnataka High Court
Smt P Sowbhagya vs Sri Phaneendra L on 5 September, 2017
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
REGULAR SECOND APPEAL No. 799 OF 2017
BETWEEN:
SMT. P. SOWBHAGYA
AGED ABOUT 53 YEARS,
W/O M. RAJASHEKARA,
RESIDING AT NO. 514,
'K', 19/A, 4TH CROSS,
VEENE SHESHANNA ROAD,
K.R. MOHALLA, MYSURU.
...APPELLANT
(BY SHRI O. SHIVARAMA BHAT, ADVOCATE)
AND:
SRI. PHANEENDRA L.,
AGED ABOUT 45 YEARS,
S/O LAKSHMAN,
R/AT NO. 499/1, 4TH CROSS,
VEENE SHESHANNA ROAD,
K.R. MOHALLA, MYSURU.
...RESPONDENT
(BY SHRI N. NANJUNDA SWAMY, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED
18.2.2017 PASSED IN RA NO. 638/2016 ON THE FILE
OF THE V ADDL. DISTRICT AND SESSIONS JUDGE,
MYSURU, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 5.10.2015
PASSED IN OS NO. 1793/2010 ON THE FILE OF THE IV
ADDL. I CIVIL JUDGE, MYSURU.
2
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This Regular Second Appeal is preferred by the Plaintiff in O.S. No.1793/2010 on the file of the IV Additional 1st Civil Judge, Mysuru, challenging the concurrent judgments and decrees passed by the Courts below, whereby, the suit of the Plaintiff has been dismissed and the counter claim made by the defendant came to be allowed.
2. The plaintiff-appellant herein had instituted a suit in O.S.No.1793/2010 against the defendant-respondent before the IV Additional I Civil Judge, Mysuru, seeking for the following reliefs:
"Judgment and decree in favour of the plaintiff and against the defendant restraining the defendant, his agents, and servants etc., from erecting any iron door or grills in the three feet passage and grant such other reliefs"3
3. Per contra, the defendant-respondent filed written statement admitting the ownership of the plaintiff over the house property bearing No.521, K19/A & K/11, however has made counter claim, seeking for the following relief:
"That three feet galli/passage existing between the house of the plaintiff and defendant exclusively belongs to him and that the plaintiff has no right, title or interest over the same. Further, in his counter claim, the defendant has contended that the plaintiff-appellant herein has deviated the plan and illegally constructed the house by encroaching nearly half (1/2') feet of the defendant's property and fixed/opened four windows and two ventilators on the eastern wall of her house towards the passage of the defendants and those windows, ventilators are to be demolished by the Plaintiff, inasmuch as, they are causing nuisance to the defendant".
4. After full fledged trial and on appreciation of oral and documentary evidence, the trial Court, 4 while dismissing the suit filed by the plaintiff, allowed the counter claim made by the defendant and thereby directed the Plaintiff to demolish the encroached portion of the property to an extent of ½ feet East- West and 31' north to south of defendant's 'A' schedule property and to restore it as vacant space by way of mandatory injunction. Further, the Plaintiff was directed to close the existing doors, windows, ventilators and sajja fixed in the eastern side wall of the 'B' schedule property which belongs to Plaintiff, within two months from the date of judgment, at his own costs.
5. The plaintiff, being aggrieved by the said judgment and decree of the trial Court preferred a regular appeal in RA. No.638/2016 on the file of the V Additional District and Sessions Judge, Mysuru. The said appeal also came to be dismissed on 18.02.2017, confirming the judgment and decree passed by the trial Court in O.S.No.1793/2010. Challenging the said concurrent findings of the 5 Courts below, the plaintiff has preferred the present Regular Second Appeal.
6. This Court, by order dated 05.07.2017, granted an interim order of stay, subject to condition that the appellant shall file an undertaking in the form of an affidavit that she is agreeable to close the existing door, windows, ventilators and sajja fixed in the eastern wall of her house, within a reasonable time.
7. Today, learned counsel for the plaintiff- appellant has filed an undertaking affidavit which reads as hereunder:
"UNDERTAKING AFFIDAVIT I, P. Sowbhagya, W/o Sri. M. Rajashekar, Aged about 53 years, Residing at No.514, K.19/A, 4th Cross, Veenesheshanna Road, K.R.Mohalla, Mysuru now come down to Bengaluru, do hereby solemnly affirm and state on oath as follows:
1. I submit that I am the Appellant in the aforesaid Appeal. I am well 6 acquainted with the facts of this case.
Hence, I am swearing this affidavit.
2. I submit that, I have filed the aforesaid appeal against the judgment and decree dated 18.02.2017 passed in R.A. No. 638/2016 on the file of the V additional District and Sessions Judge, Mysuru and the judgment and decree passed by the Trial Court in O.S.No. 1793/2010 dated 05.10.2015 on the file of IV Addl. Civil Judge at Mysuru.
3. I further submit that I hereby undertake that I will alter the encroached portion of the eastern wall of my property by reducing its thickness of ½ feet towards east to west and north to south 31 feet and restored it as vacant space.
4. I further submit that I will close the existing doors, windows, ventilators, and water pipes and remove the sajja fixed on the eastern side wall of my property on or before 31.12.2017 with a liberty to plaster the eastern side of the wall after reducing the same as referred to above and paint 7 the said wall once in 2 years with prior intimation to the defendant/respondent. This affidavit may be placed on record and accordingly appeal may be disposed of.
I, P. Sowbhagya, the deponent herein do hereby declare that what is stated above paragraphs are true to the best of my knowledge, belief information.
Identified by me
Sd/- sd/-
Advocate Deponent
BENGALURU
DATE: 05.09.2017"
8. That under the above undertaking
affidavit, the plaintiff-appellant has agreed to "reduce the thickness of eastern wall of her house by ½ feet towards east to west and 31 feet on north to south, close the existing doors, windows, ventilators, water pipes and remove the sajja fixed on the eastern side wall of her property on or before 31.12.2017 with liberty to plaster the eastern side of the wall after 8 reducing the same and to paint the said wall once in two years with prior intimation to the defendant- respondent".
9. Shri. N. Nanjunda Swamy, learned counsel appearing for the defendant-respondent, on instructions of the defendant-respondent submits that the existing three feet passage including ½' (East-West) and 31' (North-South), encroached by the Plaintiff which is described as Schedule 'A' is exclusively belongs to the defendant-respondent and that the defendant-respondent is ready and willing to accept the undertaking given by the plaintiff for removal of existing doors, windows, ventilators and sajja fixed in the eastern side wall of her house which is described as 'B' schedule. Further, he submits that the defendant-respondent is ready and willing to permit the Plaintiff-Appellant to reduce the size/thickness of the eastern wall of her house, by removing ½' x 31'.
9
10. The undertaking affidavit dated 05-09- 2017 filed by the Plaintiff-appellant is placed on record.
11. In view of the above undertaking affidavit filed by the plaintiff-appellant and the submissions made by the learned counsels for the respective parties, the present Regular Second Appeal stands disposed of, in terms of the undertaking affidavit filed by the Plaintiff-appellant. Accordingly, the Judgment and decree dated 05.10.2015 passed by the IV Additional Civil Judge, Mysuru in O.S.No.1793/2010 and the Judgment and decree dated 18.02.2017 passed by the V Additional District and Sessions Judge, Mysuru in R.A. No.638/2016 stand modified to the following terms:
i) The Plaintiff-appellant has agreed and declared that the passage situated towards eastern wall of her house is exclusively belongs to defendant-10
respondent and she has no right, title or interest over the said passage.
ii) the Plaintiff-appellant shall remove the encroached portion i.e., ½ feet East-West and 31 feet North-South described as defendant's 'A' Schedule property by reducing the thickness of the eastern wall of her house and restore it as vacant space on or before 31.12.2017.
iii) The Plaintiff-appellant shall close the existing doors, windows, ventilators, water pipes and remove the sajja fixed in the eastern side wall of her house and re- plaster the said eastern side of wall, which has been described as 'B' schedule.
iv) The defendant-respondent has agreed that he has no objection for the plaintiff- appellant to carry out repair and whitewashing work by the plaintiff to the 11 eastern wall of her house, once in two years, with prior intimation to the defendant-respondent.
Parties to bear their own costs.
SD/-
JUDGE Vr.