Karnataka High Court
Sri S Nagabhushan vs Smt Nagamma on 29 August, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR FIRST APPEAL NO. 206 OF 2009
Between:
Sri. S.Nagabhushan
S/o late Shankarappa
Aged about 56 years
R/a. No.228/2, Kumbar Street
K.R.Puram,
Bangalore 36.
....Appellant
(By Shri A.C. Balaraj, Advocate)
AND
1. Smt. Nagamma
W/o Late Chowdappa, Major
2. Sri. K.C. Sundar Raj
S/o late Chowdappa Major
3. Sri. Krishnamurthy
S/o late Chowdappa, Major
Respondents 1 to 3 are
Residents of No. 221,
Kumbar Stret, K.R.Puram
Bangalore 560 036.
....Respondents
( By Shri V.Vishwanath, Advocate)
2
This Regular First Appeal is filed under Section 96 CPC
against the judgment and decree dated 1.12.2008 passed in OS
No.15116/2001 on the File of the IV Addl. City Civil & Sessions
Judge, Mayo Hall Unit, Bangalore dismissing the suit for
permanent injunction; and etc.
This appeal coming on for hearing, this day, the Court
made the following:
JUDGMENT
The plaintiff is the appellant challenging the judgment and decree passed in O S No.5116/2001 passed by the 4th Additional City Civil & Sessions Judge, Mayo Hall Unit, Bangalore. The court by its judgment and decree dated 1.12.2003 dismissed the suit filed by the appellant - plaintiff.
2. The suit was filed for permanent injunction in respect of the suit `A' schedule property. It is the case of the plaintiff that `A' Schedule Property is the ancestral property of late Shankarappa who is the father of the plaintiff. There was a family partition on 12.11.1982 between Sri Shankarappa and his family members. Suit `A' Schedule property and other 3 properties fell to the share of the plaintiff and since from the date of partition, the plaintiff was put in possession and plaintiff was in continuous possession. The defendants are the owners in respect of the property No.221 which is adjoining to `A' schedule property. The said property was acquired by late Chowdappa in the family partition. Late Chowdappa is the father of the 2nd and 3rd defendant and husband of first defendant and senior paternal uncle of the plaintiff. It is submitted that when the property has been demarcated by virtue of partition dated 12.11.1982 but quite contrary to the same, the defendants are encroaching the common passage left for use by both the parties.
3. In order to prove the case of the plaintiff, he is examined as PW-1 and he has marked Ex.P1 to P6. Ex.P1 is the partition deed and registered partition deed, tax paid receipt, demand register extract and encumbrance certificate have been marked as Ex.P2 to P6. The defendant No.3 was examined as DW-1 and marked documents Ex.D1 to D12.
4
4. It is the case of the defendants that as per the partition made on 12.11.1982, both the parties are put in respective possession. `B' schedule property which is claimed by the plaintiff as a common passage, it is admitted but however, it is submitted by the defendants that the same has not been encroached by the defendants.
5. In order to resolve this issue, court below has appointed a Commissioner to inspect and to make a report.
6. The learned counsel for the defendant-respondents submits to dismiss the appeal. The defendants have not encroached the common passage. It is further submitted that there is common wall situated on the Eastern side of plaintiff's property, therefore, there is no encroachment.
7. The court below framed issue on the basis of the pleadings of the respective parties. Additional issue No.2 is relevant for the purpose of the present case, which is as to the blockage of the common passage by the plaintiff. The said issue 5 has been answered in the affirmative. The issue No.2 as to the interference by the defendant, it is answered in the negative. The reasons assigned while answering the said issues are that, the plaintiff has admitted in his evidence that there is a common wall between the house of the plaintiff and defendants and it had no windows and doors. Therefore, possibilities of encroachment by the defendant has been denied. The contention of the plaintiff that the defendants are encroaching Eastern side by constructing wall was not accepted, accordingly the said additional issue was answered in the affirmative.
8. On the basis of the submissions made by both the parties, the following points arise for consideration:
(i) Whether the court below has committed an error in answering the relevant issue as to blockage of common passage by the plaintiff against the plaintiff?6
(ii) Whether the plaintiff has proved the fact that the defendants have encroached `B' schedule property, the common passage?
9. I have gone through the original LCR placed before me. For the purpose of proving the case, the plaintiff has relied upon Ex.P1 the partition deed. The partition deed is entered between father of the plaintiff and husband of the first defendant and father of defendants 2 & 3. At para 4 of the partition deed, it is mentioned that in front of second defendant's house there is a common passage measuring 8' North - South and West to East 20' . In view of the recital in the partition deed, it is found that there is a common passage left which is classified as `B' schedule property. Between the property of the plaintiff and defendants, there is a common wall and it is admitted by the plaintiff in his evidence that there is no window and door kept to the common wall. When there is a common wall, it bifurcates the two properties and prevents from encroachment from anybody more particularly the defendants, the question of encroachment does not arise and accordingly it was not proved. 7 Admittedly, the common passage is situated on the northern side of plaintiff's property.
10. In the circumstances, I find, justifiable reasons assigned by the court below and I do not find any infirmity in the judgment passed by the lower court. Accordingly, the appeal fails and it is dismissed.
Sd/-
JUDGE AKD