Karnataka High Court
Smt Kotrawwa W/O Yamanappa Koyyar vs Shri Gangappa S/O Dodda Fakerappa ... on 28 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:4645
RSA No. 5258 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 5258 OF 2009 (MON)
BETWEEN:
SMT. KOTRAWWA
W/O YAMANAPPA KOYYAR,
AGED ABOUT 43 YEARS,
OCC: HOUSEHOLD WORK,
R/O. KINNAL, TQ: & DIST: KOPPAL
...APPELLANT
(BY SRI B SHARANABASAWA, ADVOCATE)
AND:
SHRI GANGAPPA
S/O DODDA FAKERAPPA SARAGAD,
AGE:45 YEARS, OCC: BANK EMPLOYEE,
R/O. KINNAL, TQ: & DIST: KOPPAL
...RESPONDENT
(BY SRI RAJASHEKHAR BURJI, ADVOCATE)
SUJATA
SUBHASH THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
PAMMAR OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET-ASIDE
Digitally signed by
SUJATA SUBHASH THE JUDGMENT AND DECREE DATED 22.01.2009 PASSED BY THE
PAMMAR
Date: 2024.03.12
22:37:02 -0700 COURT OF THE CIVIL JUDGE (SR.DN), AT KOPPAL, IN
R.A.NO.23/2008 BY CONFIRMING THE JUDGMENT AND DECREE
DATED 10.07.2008, PASSED BY THE COURT OF THE CIVIL JUDGE
(JR.DN) & JMFC, AT KOPPAL, IN O.S. NO.103/2006, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:4645
RSA No. 5258 of 2009
JUDGMENT
This Regular Second Appeal is filed by the defendant challenging the judgment and decree dated 22.01.2009, passed in R.A.No.23/2008, by the Civil Judge (Sr.Dn.), Koppal (first appellate Court), revering the judgment and decree dated 10.07.2008, passed in O.S.No.103/2006, by the Civil Judge (Jr.Dn.), and JMFC, Koppal (trial Court).
2. For the purpose of convenience, the ranking of the parties is referred to as per their status before the trial Court.
3. The plaintiff has filed a suit for mandatory injunction against the defendant to remove the roof put on the wall of the house of plaintiff by encroaching the wall of the plaintiff. But the said suit was dismissed on the reason that the said roof was existed at the time of purchase of the house by the defendant and the plaintiff has failed to prove that the defendant has put roof on the wall of the plaintiff. Therefore, dismissed the suit. Being aggrieved by it, the plaintiff has preferred Regular Appeal before the first appellate Court and the first appellate Court on -3- NC: 2024:KHC-D:4645 RSA No. 5258 of 2009 re-appreciating the evidence on record, by considering Ex.P.1 and P.2, held that the defendant has failed to prove that the suit wall is the common wall and the wall belongs to the plaintiff and roof top was constructed on the wall of the plaintiff. Therefore, set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff as prayed for by directing the defendant to remove the roof put on the wall of the plaintiff's house. Challenging this, the defendant has preferred the instant second appeal.
4. While admitting the appeal on 04.03.2014, this Court has framed the following substantial questions of law.
i) Whether the first appellate Court has committed a serious error in accepting the report of the Commissioner without examining the Commissioner?
ii) Whether the first appellate Court has committed a serious error in not coming to the conclusion that the suit wall is the exclusive property of the plaintiff-respondent by ignoring the judgment and decree passed in O.S.No.30/1996?
5. The learned counsel for the defendant/appellant submitted that the wall is common wall and defendant is -4- NC: 2024:KHC-D:4645 RSA No. 5258 of 2009 having right over the wall but the defendant has not constructed any roof on the wall of the plaintiff and therefore, the allegation of the plaintiff is false. He further submitted that the plaintiff has not produced any evidence to prove that the defendant has constructed roof on the wall of the plaintiff. It is further submitted that accepting the Court Commissioner's report by the first appellate Court, in O.S.No.30/1996 and in R.A.No.69/2004 without getting examination of the Court Commissioner is not correct approach by the first appellate Court and has erroneously came to conclusion that the suit wall is the exclusive property of the plaintiff. Therefore submitted that the defendant has not put up any roof on the wall of the plaintiff, but the said wall is a common wall. Hence prays to set aside the judgment and decree of the first appellate Court by confirming the judgment and decree of the trial Court.
6. On the other hand, learned counsel for respondent/plaintiff submitted that in previous suit filed by defendant herein in O.S.No.30/1996 it is proved that the suit wall is not a common wall and that is confirmed in -5- NC: 2024:KHC-D:4645 RSA No. 5258 of 2009 R.A.No.69/2004. Therefore, the said wall is not a common wall and when this being the fact proved, the defendant has put up roof on the wall of the plaintiff and it is rightly considered by both the first appellate Court and the trial Court and accordingly decreed the suit of the plaintiff and issued mandatory injunction, which requires no interference by this Court. Hence, prays to dismiss the appeal.
7. Learned counsel for the defendant places reliance on the judgment of this Court reported in ILR 1995 KAR 3286 in the case of Vokkaligara Sannappa Vs Vokkaligara Annaiah and the learned counsel for the respondent/plaintiff places reliance on the judgment of this Court reported in 2008 3 KCCR 1374 in the case of Parappa and Others and Bhimappa and others. Both the above said decisions are not applicable in the present case for the reason that in those cases principles of law laid down is on the question whether the Court Commissioner's report can be accepted without examining the Commissioner. Here in the present case, the question is different. The Courts below have appreciated the judgment and decree passed in -6- NC: 2024:KHC-D:4645 RSA No. 5258 of 2009 O.S.No.30/1986 and R.A.No.69/2004, but not Court Commissioner's report alone. Court Commissioner's report may be one of the factors in deciding the issue in O.S.No.30/1996. Therefore, having difference in factual matrix between the cases and as cited supra and in the present case, the said two decisions are not applicable in the present case.
8. In O.S.No.30/1996 filed by the defendant herein for permanent injunction against the plaintiff herein, it is proved and decreed that the suit wall is not a common wall. The suit property in O.S.No.30/1996 and in the present suit, are one and the same. In the previous suit in O.S.No.30/1996, the defendant has failed to prove that the suit wall is a common wall. This finding of fact is confirmed in R.A.No.69/2004 and subsequently in Regular Second Appeal also. The trial Court in O.S.No.30/1996 based on the Court Commissioner's report gave the finding that the suit wall is not a common wall. Therefore, whatever the finding given in O.S.No.30/1996 and R.A.No.69/2004 is based on the Court Commissioner's report and this Court Commissioner's report -7- NC: 2024:KHC-D:4645 RSA No. 5258 of 2009 may be considered as an evidence in coming to the conclusion in the said suit and regular appeal. Therefore, the First Appellate Court in this case has observed that in previous suit O.S.No.30/1996 and R.A.No.69/2004, it is proved that the suit wall is not a common wall. The First Appellate Court in this case has considered the finding given in the previous suit and regular appeal, but not solely based on the Court Commissioner's report in the previous suit. Therefore, it is not correct in the contention of the learned counsel for the appellant/defendant that the First Appellate Court has committed error in accepting Court Commissioner's report without examining the Commissioner. The Court Commissioner's report may be one of the factors in previous suit in coming to the conclusion that the suit wall is not a common wall. The First Appellate Court has considered and accepted the judgment and decree passed in O.S.No.30/1996 and R.A.No.69/2004 and based on it, it was held by the First Appellate Court in this case that the suit wall is not a common wall, but not on the reason accepting Court Commissioner's report. Therefore, substantial question -8- NC: 2024:KHC-D:4645 RSA No. 5258 of 2009 of law No.1 may not be necessary. However, it is answered in the negative. In the background of the discussions made above, if in the present case, the First Appellate Court has considered the Court Commissioner's report alone without the judgment and decree in O.S.No.30/1996 and R.A.No.69/2004, then the First Appellate Court would have been in error, but that is not in the present case. The First Appellate Court in the present case has not independently considered the report but the judgment and decree passed in O.S.No.30/1996 and R.A.No.69/2004 as above are appreciated in coming to the conclusion that the suit wall is not common wall.
9. When the entire case is considered on its preponderance of probability based on the evidence adduced by both the parties, the evidence of plaintiff is corroborated by the evidence of PW2 that the defendant has put up roof on the wall of the plaintiff. Therefore, the plaintiff has not only relied on his own evidence but is corroborated by PW2. Considering the cross examination of PW1 and PW2, there is nothing revealed that the defendant has not put up roof on -9- NC: 2024:KHC-D:4645 RSA No. 5258 of 2009 the wall belonging to the plaintiff. It is the case of the plaintiff that the defendant has put up roof on the wall of the plaintiff but the wall is not a common wall and it is even seen through photographs the projection of roof towards the property of the plaintiff that is amounting to encroachment by the defendant. The suit wall is on the Eastern side of the house of the plaintiff. After a gap of 3 feet from the Eastern wall, the wall of defendant is situated. Therefore, there is an open space of 3 feet between the wall of plaintiff and defendant and that is why the plaintiff has shown in the boundaries towards East, there is open space. The defendant cross examined PW1 and at the most, it is an attempt to show that he has not put up roof wall of the plaintiff. Moreover, the defendant while being examined as DW1 has admitted in the cross examination that his roof was projected about 2 feet towards the wall of the plaintiff. This admission proves that either the defendant has put up new roof or there was earlier roof encroaching open space of plaintiff. This projection of the roof can be seen by the photographs produced at Exs.P5 to P8. Therefore, after considering the
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NC: 2024:KHC-D:4645 RSA No. 5258 of 2009 evidence on theory of preponderance of probabilities in the background of the facts and circumstances of the case, plaintiff has more probability in his case in proving that the suit wall is not common wall and defendant has encroached portion of the wall put up roof on the wall by the evidence of PW1 and PW2 and the admission is given by the defendant in his cross examination. But the evidence of defendant does not have any corroboration and moreover, he has admitted that there may be projection of roof about 2 feet towards the Eastern wall of the plaintiff's house. This proves that the plaintiff has made out a case for removal of roof constructed on the wall of the plaintiff and it is rightly considered by both the Courts below and directed to remove the roof put up on the wall of the plaintiff. In substantial question of law No.ii, in the second line, the word 'not' has appeared due to typographical mistake but the said question is without using the word 'not'. Therefore, it is corrected and read as follows:
"ii. Whether the first Appellate Court has committed a serious error in coming to the conclusion that the suit wall is the exclusive
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NC: 2024:KHC-D:4645 RSA No. 5258 of 2009 property of the plaintiff-respondent by ignoring the judgment and decree passed in O.S.30/1996?"
10. Accordingly, the First Appellate Court is justified in coming to the conclusion that the suit wall is exclusive property of the plaintiff. Hence, the substantial question of law No.2 is answered in the negative. Thus, the regular second appeal filed by the defendant is liable to be dismissed. Hence, I proceed to pass the following:
ORDER Appeal is dismissed. The judgment and decree dated 22.01.2009, passed in R.A.No.23/2008, by the Civil Judge (Sr.Dn.), Koppal is confirmed.
Sd/-
JUDGE MRK-para 1 to 6, KGK-para 7 to end.
CT:ANB List No.: 1 Sl No.: 22