Karnataka High Court
Smt Sathyamma vs Smt Kempamma on 13 April, 2017
Equivalent citations: 2017 AIR CC 3313 (KAR), 2017 (4) AKR 545 (2017) 4 KCCR 3144, (2017) 4 KCCR 3144
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1 ®
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
R.S.A NO. 432/2013 (P-INJ)
BETWEEN
SMT. SATHYAMMA,
W/O RAMACHANDRA,
AGED ABOUT 37 YEARS,
R/A KOLUR VILLAGE,
MALUR HOBLI, CHANNAPATNA TALUK,
RAMANAGARA DIST - 571 112. ... APPELLANT
(BY SRI.NITISH K.N.,ADV.FOR
SRI. K.V.NARASIMHAN, ADV.)
AND
SMT. KEMPAMMA,
W/O LATE SIDDEGOWDA,
AGED ABOUT 78 YEARS,
R/A KOLUR VILLAGE, MALUR HOBLI,
CHANNAPATNA TALUK,
RAMANAGARA DIST - 571 112. ... RESPONDENT
(BY SRI. K.H. RAMU, ADV. FOR
C/R [CP NO.11/2013])
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 3.12.2012 PASSED
IN R.A.NO.75/2012 ON THE FILE OF SENIOR CIVIL
2
JUDGE AND JMFC, CHANNAPATNA, RAMANAGARA
DISTRICT, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD 21.4.2011 PASSED
IN OS.NO.100/2007 ON THE FILE OF ADDITIONAL CIVIL
JUDGE (JR.DN.), CHANNAPATNA.
THIS RSA COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This court at the time of admitting the appeal on 31.10.2014, has framed the following substantial questions of law:
(1) Whether the suit of the plaintiff for injunction was not maintainable?
(2) Whether appreciation of evidence by the courts below is perverse?
In order to answer the substantial questions of law framed by this court, it is just and necessary for this court to have the brief factual aspects of the case of the plaintiff and the defendant as well as the contentious issues framed by the trial Court and the findings given thereon by the trial Court as well as the first appellate court for granting the decree in favour of the plaintiff. 3
2. As per the pleadings of the parties, the case of the plaintiff is that, she is the absolute owner in possession of the suit Schedule property, which is a property bearing Kaneshmari No.146/86 measuring 31 feet North to South and 51 feet East to West situated at Kolur village, Malur Hobli, Mudigere Grama Panchayath, Channapatna Taluk having specific boundaries such as, East - road, West - property of defendant and Honnaiah, North - property of Kadamma, South - property of Maramma temple.
3. It is the contention of the plaintiff that, plaintiff had put-up construction in the said property measuring 28 x 46 feet and plaintiff has been residing therein; She acquired the said property through her husband's ancestors, which later fell to her husband's share and thereafter to her. It is the further case of the plaintiff that while constructing the building to the extent of 28 x 46 feet, she has left 3 feet space out of the total measurement of 51 x 31 feet on western side which exactly, falls to the eastern side of the property of the 4 defendant. It is contended that she has also put up two windows on the western side of her house for the purpose of free air and light.
4. The defendant who has started to put up construction on the western side of the property of the plaintiff without obtaining a plan, obtaining only licence, the defendant has made hectic attempts to put up construction in the said 3 feet area left by the plaintiff on the ground that the said 3 feet was actually left as set back by the defendant herself. The defendant started digging foundation to lay foundation in the said area. The plaintiff noticing the same lodged a complaint to the panchayath and in fact, the panchayath has issued a notice to the defendant and advised her not to encroach upon the property of the plaintiff and abide by the licence and she should leave 3 feet space on the eastern side of her property. In spite of that, the defendant did not desist from interfering with the said 3 feet space left by the plaintiff. Therefore, the plaintiff has filed a suit for injunction restraining the defendant from interfering with the plaintiff's peaceful possession 5 and enjoyment of the said 3 feet space left by her on the western side of her property and for costs and such other reliefs.
5. The defendant appeared before the court in pursuance of the summons, filed written statement and denied the averments made in the plaint against the defendant. Apart from denying title and possession of the plaintiff over the said 3 feet space, the defendant has taken up the contention that, the defendant has acquired the property which is situated on the western side of the plaintiff from her father and after the death of the father of the defendant, the katha of the said property was made out in the name of the defendant and she has been in peaceful possession and enjoyment of the said property. The defendant earlier had a country tiled house and a vacant space and thereafter the defendant took licence for the purpose of constructing a house. In fact she has actually left 3 feet space on the eastern side of her property which is to the western side of the plaintiff's property and it is the property left by the defendant and the plaintiff has no 6 manner of right, title, interest over the said property. Therefore, the plaintiff is not entitled for any relief as prayed for.
6. On the above said contentious pleadings, the trial Court has framed the following issues:
(1) Whether the plaintiff proves that she was in possession and enjoyment of the suit schedule property as on the date of suit?
(2) Whether the plaintiff proves that if the defendant installs windows as alleged, then it will affect plaintiff's right to privacy and right to free flow of air and light as alleged?
(3) Whether the plaintiff proves the interference caused by the defendant as alleged?
(4) Whether the plaintiff is entitled for permanent injunction as prayed for?
(5) What order or Decree?
7. The trial Court in fact during the pendency of the suit, at the instance of the plaintiff has also appointed a Commissioner for the purpose of inspecting and measuring the properties and for report with 7 reference to the disputed properties. On 28.01.2008, the Commissioner has submitted his report along with the rough sketch which became part and parcel of the trial Court records.
8. The plaintiff in order to prove her case, examined her power of attorney holder as PW-1 and got marked Exhibits P-1 to P-17(a) and also examined one more witness as PW-2 who is the Secretary of the concerned Gram Panchayath. The defendant examined herself as DW1 and one more witness is also examined as DW-2 and got marked Exhibits D-1 to D-4. After analyzing the oral and documentary evidence on record, the trial Court has answered issue Nos.1 to 3 in the Affirmative, issue No.4 partly in the Affirmative and ultimately decreed the suit of the plaintiff.
9. Being aggrieved by the said judgment and decree, the defendant has preferred an appeal before the Senior Civil Judge & JMFC, Channapatna in Appeal No.75/2012, wherein the first appellate court after culling out the pleadings of the parties and issues 8 framed by the trial Court and the grounds urged before the first appellate court has framed the following points for consideration:
1. C¸À®Ä zÁªÀ ¸ÀAS'å 100/2007 gÀ°è ¢£ÁAPÀ 21.04.2011 gÀAzÀÄ UËgÀªÁ¤évÀ C¥ÀgÀ ¢ªÁt £ÁåAiÀiÁ¢sñÀgÀÄ (Q. «.) ªÀÄvÀÄÛ ¥ÀæxªÀÄ zÀeÉð £Áå¬ÄPÀ zÀAqÁ¢sÃPÁjUÀ¼ÀÄ, ZÀ£ÀߥÀlÖt EªÀgÀÄ ¤ÃrzÀAvÀºÀ wÃ¥ÀÅð ¸ÀªÀÄAd¸À«gÀĪÀÅ¢®èªÉAzÀÄ ªÉÄÃ@®ä£À«zÁgÀ¼ÀÄ ¸Á©sÃs vÀÄ¥Àr¸ÀÄvÁÛ¼ÉAiÉÄÃ?
2. K£ÀÄ DzÉñÀ?
10. The first appellate court has in fact re- appreciated the materials on record and found no mistake committed by the trial Court and thereby confirmed the judgment and decree passed by the trial Court.
11. On careful perusal of the judgments of both the courts below, the courts have categorically held relying upon the evidence of PWs.1 & 2 as well as relying upon the evidence of DW-1 and the averments of the defendant have come to the conclusion that the said 3 feet space was left by the plaintiff out of 51 feet East to West and the said property belongs to the plaintiff. The courts have also held that the documents 9 produced before the court by the plaintiff marked at Exhibits P2 to P4 which are the demand register extracts shows the measurement of the property of the plaintiff.
12. On the other hand, the court has also observed that there is no measurement recorded in the demand register extract produced by the defendant. The courts have also observed that the plaintiff has only claimed permanent injunction. Therefore, there is no need to discuss in detail with regard to the title of the plaintiff. Therefore, having found that the plaintiff is in possession and enjoyment of 51 feet East to West and 31 feet North to South of her property granted the injunction order in her father.
13. The learned counsel for the appellant strenuously contends before this court that the plaintiff has not at all produced any mother document to show as to how he acquired the title or possession over the property measuring 51 feet East to West and 31 feet North to South. The defendant has specifically denied 10 her title and possession over the property and in spite of that, the plaintiff has not converted her suit to one for declaration. Therefore, the suit is not maintainable without seeking the relief of declaration to her title.
14. The learned counsel also contended that, the plaintiff has not examined herself, but examined her Power of Attorney holder. There are so many admissions in the evidence of PW1 with regard to the existence of any eaves to the windows and also any extended roof of the house of the plaintiff. He also contends that the demand register extract produced before the court on the basis of the evidence of PW-2 are proved to be tampered, in spite of that the trial Court and the first appellate court relied upon such a tampered documents.
15. The learned counsel also contended that PW-2 has categorically admitted that at the time of issuing licence and subsequently after the notice being issued to the defendant, he has not actually measured the property. In spite of that, the courts have accepted his 11 evidence, as if he has measured the property and thereafter he has given his opinion that the said 3 feet space was left by the plaintiff, but in his evidence he has also admitted that the said 3 feet space is left by the defendant. Therefore, there is no consistency or credibility that could have been attached to the evidence of PW-2. The learned counsel also contended that when documents Exs.P-2 to P-4 cannot be relied upon by the court, nothing remains to show the exact extent of the property owned by the plaintiff. Therefore, in the absence of such materials on record, the courts cannot consistently hold that the plaintiff has been in possession and enjoyment of 51 feet and she actually left 3 feet space on the western side of her property. Therefore, he contended that the trial Court and the first appellate court have committed serious legal error in holding that the suit of the plaintiff is maintainable.
16. Per contra, the learned counsel for the respondent strenuously contends before this court that though, Exhibits P2 to P4 shows the name of the 12 plaintiff and the extent of the property, but Ex.P2 is a document, wherein it shows that 3 feet extra projection was made in the roof of the plaintiff, which she has actually left on the western side of her property. Though there are some interpolations in Ex.P-2 established by the defendant, but the first line of the said portion is not tampered which also shows that the said 3 feet space is belonged to the plaintiff. Therefore, he contended that the said portion has been relied upon and granted decree in favour of the plaintiff.
17. On the other hand, he also contends that the defendant has no material to show as to what exactly the measurement of his property whether he has left any 3 feet space on the Eastern side of his property. Therefore, he contends that the defendant is a trespasser of the property and the property belong to the panchayath and that the defendant has not produced any material before the court to show her title over the property. Therefore, she cannot question the title or possession of the plaintiff. Considering the over all materials on record, the trial Court and the first 13 appellate court have rightly come to the conclusion and granted the decree and there is no perversity in appreciation of the evidence, by the trial Court and the first appellate court.
18. Having heard the arguments of the learned counsels, now this court is obliged to answer the substantial questions of law framed.
I Substantial Question of Law:
"Whether the suit of the plaintiff for injunction was not maintainable?"
On careful perusal of the oral and documentary evidence adduced by the parties, this court has to see whether the plaintiff has established that the suit of the plaintiff is maintainable without there being any declaratory relief.
19. Before adverting to this particular question of law, it is worth to refer a decision reported in 2008(4) SCC 594 between Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and other, wherein 14 the Hon'ble Apex Court had an occasion to deal with the facts as to under what circumstances, a bare injunction suit is maintainable without a declaratory relief, at Paragraph Nos. 15 & 16, which reads as under:-
15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation.
The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is 15 able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.
(Emphasis Supplied)
20. On a careful and meaningful understanding of the above decision of the Hon'ble Apex Court, it is clear that even a mere injunction suit is maintainable when there is a dispute with regard to the title or any cloud is cast upon the title of the plaintiff, then the plaintiff may prove mere physical possession or lawful 16 possession or settled possession and in order to secure an equitable order of injunction either for himself or to his family members. The Hon'ble Apex Court has observed that in respect of a vacant site, which it is not in physical possession used or enjoyed, in such cases, the principle is that possession follows title. Therefore, if two persons are quarrelling with regard to a vacant site or a space if one is able to establish title thereto will be considered to be in possession. This means that, though the suit relates to a vacant space for injunction and issue is one of disputed possession, then it is necessary for the court to examine the title as prelude for deciding nature of possession over the property. In such a situation, if the plaintiff is able to establish a clear and simple non-controverted and non- litigatious title over the property, then the plaintiff is entitled for equitable relief of injunction. But, when the title of the plaintiff is denied and the defendant has cast cloud on the title of the plaintiff and on the basis of the title of the property, the possession over the suit schedule property to a particular extent is claimed, then, 17 normally the plaintiff has to seek for declaration and injunction. Therefore, it is clear that even in a suit for injunction, if a declaratory relief is not claimed, then the court has to examine as a prelude whether the plaintiff has tentatively prima facie shown the title to the extent claimed by him with reference to the suit schedule property though the Court can't absolutely consider the title of the plaintiff. In this background, the court has to examine the claim of the plaintiff.
21. The plaintiff claimed the suit schedule property measuring 51 ft. East-West and 31 ft. North-South. The plaintiff admittedly has not produced any title deeds to show as to how the plaintiff has acquired the suit schedule property. The plaintiff's pleadings disclose that the suit schedule property originally belonged to the ancestors of her husband and later devolved on her husband and her husband died about 50 years ago, and since then, she has been enjoying the suit schedule property. But in order to establish the said factum, except oral evidence, she has not produced any title deeds as such or any partition deed or any 18 document showing the allocation of this property to the husband of the plaintiff. Particularly as to how the particular extent ie., 51 x 31 ft. has been recorded in the revenue records is not forthcoming even in the oral and documentary evidence of the plaintiff.
22. Coming to the documentary evidence produced before the court, which have been seriously disputed, the learned counsel for the appellant seriously contends that Exs.P 2-4 are the Demand Register Extracts for the years 2006-07, 2009-10 and the House/Land Tax assessment for the year 2009-10. The learned counsel, drawing my attention to the contents of the said documents has strenuously contended that the said documents are tampered and as such, no reliance can be placed. On careful perusal of these documents it is noticed that, it is a Mangaluru Tiles Roofed House bearing No. 146/86 standing in the name of Smt. Kempamma (Plaintiff) d/o. late Siddegowda. With regard to the extent of property, it is mentioned in the following manner:-
19
"3 Cr ¸ÀÆgÀ£ÀÄß ºÉÇ@gÀvÀÄ ¥Àr¹ UÉÆÃqɬÄAzÀ UÉÆÃqÉUÉ 48x31 Cr EgÀÄvÀÛzÉ".
However, there is further averment as follows:
"ºÉÇ@gÀvÀÄ¥Àr¹gÀĪÀ 3 Cr ¸ÀÆj£À eÁUÀ PÉA¥ÀªÀÄä¤UÉ ¸ÉÃgÀ@vÀPÀÌ ¸ÀévÁÛVgÀÄvÀÛzÉ."
(Emphasis Supplied)
23. After careful perusal of this document, the extent is shown as 48 ft. x 31 ft, which is the built-up area and the remaining 3 ft. is referable to the protuberance with the roof of the house of the plaintiff towards the Western Side. In this context, the evidence of PWs. 1 & 2 play a dominant role. With reference to this roof and as well as 3 feet space shown to be belonged to the plaintiff, the plaintiff has examined her Power of Attorney Holder. It is elicited in the course of her cross-examination that there is 3 feet vacant space to the Western portion of the suit schedule property. PW.1 has admitted the same and she explained that the said portion is belonged to the plaintiff. Further, 20 she has deposed that the roof of the said house is not exceeded the Western wall of the house of the plaintiff's house. She has also admitted that, there are two small windows, to which the plaintiff has not put any eves. He also admitted that rafters, which were used to the roof of the house did not cross Western wall of the plaintiff's house. This clearly indicates that there is no external protuberance of any 3 feet roof of the plaintiff's house.
24. Now coming to the evidence of PW.2 with reference to Ex.P3, is also very interesting to be noted. PW.2-Nagaraju was working as a Secretary of Gram Panchayat, Koluru, Malooru Hobli, Channapatna Taluk, Ramanagara District, within whose jurisdiction, the house of the plaintiff is situated. He has stated that, he has actually issued the certified copy i.e., Ex.P2 and he admits that the last two lines in Ex.P2 at Colomn No.5, (underlined portion) a separate ink is used for the purpose of writing that portion. He also submits that nobody can come to the conclusion that public document is tampered, without looking to the original. 21 He also admits the wordings mentioned in different ink in the 3rd line of the said Ex.P2 and states that it appears to be an interpolation made by one Appaji Gowda and not by him. He also admits that the said portion, which is written in different ink is not there in the original and in fact the said Bill Collector Appaji Gowda might have tampered the said document-Ex.P2. In the above circumstances, the evidence of PW.2 creates a serious doubt with regard to the genuineness and correctness of Ex.P2.
25. The respondent's counsel drawing the attention to the 1st line and 3rd line at Column 5 of Ex.P2 he tried to convince the court that the 1st line and 2nd line are written in the same ink and the 3rd line is written in different ink. Therefore, if the court accepts 1st and 3rd line, there is no interpolation, the 1st line also shows that, there was a 3 feet roof protruding out side from the Western Wall of the plaintiff's property. Therefore, it probabilises that the plaintiff has left 3 feet space on the Western Side.
22
26. In the above said background, the court has to keep in mind while dealing with public documents. The Public documents should be accepted when they are prepared by the competent authorities in exercise of their duty and during the course of discharging their public duty. The Indian Evidence Act raises a presumption under Section 79 with regard to the genuineness of the certified copy of those documents. If it is shown to the satisfaction of the court that there is no embellishment or tampering of that document, particularly in certified copies, a presumption cannot be raised in favour of those documents unless the doubt is cleared by the person, who produced that document before the court and requests the Court to rely upon such document and to grant some remedy to the party. It is not that the whole document should be disbelieved if there is any tampering of the particular document, which contains different portions. If a particular portion of the document is tampered, the court has to examine whether the other portions of the document which were not subjected to any tampering can still be 23 relied upon. It all depends upon the facts and circumstances of each case. So far as this case is concerned, the 3rd line in column No.5 of Ex.P2 is proved to have been tampered, as PW.2 has admitted that portion of 3rd line which is not there in the original record and it has been inserted by Appaji Gowda, perhaps by means of writing that portion in different ink.
27. Now let me compare the 3rd line with 1st line. The 1st line contains some thing with reference to 3 feet. Therefore, once it is shown that the said disputed extent of the property is subjected to tampering, whether it is in the 1st line or 3rd line, but when it refers to the extent of the property or the measurement of the property, then it becomes the duty of the plaintiff to show before the court that she has actually entitled for 51 ft. East-West and 31 ft. North-South. In the absence of any other material on record showing the extent of the property as 51 ft. x 31 ft. except on the basis of Ex.P2 to Ex.P4, in my opinion, the plaintiff has tentatively failed in establishing that, 24 she is the absolute owner and she acquired the said property by means of legal documents or from legal source to the said extent as claimed. Exs.P3 and P4 are the similar documents, which came subsequent to Ex.P2. When it is admitted by PW.2 that, 3rd line at Column No.5 of Ex.P2 is not there in the original, how come the same was continued to be in the subsequent documents. Therefore, those documents Exs.P3 and P4 would also become redundant for consideration. Therefore, this court cannot rely upon the contents of Ex.P2 on the basis of the above said tampering. Both the courts have brushed aside this particular aspect on the ground that it is only a stray admission on the part of PWs.1 and 2. Both the courts have lost the sight that, it is the plaintiff who summoned PW.2 in order to prove Ex.P2. The defendant is entitled to cross-examine PW.2, because PW.2 has categorically admitted that he was the competent person to issue Ex.P2 stating that he was working as Secretary of Gram Panchayath and he actually issued Ex.P2. He further specifically admitted that, the 3rd line of Column No.5 in 25 Ex. P2 was not there in the original and he further admitted that, some other person by name Appaji Gowda must have interpolated the said line in the document. Therefore, it is crystal clear that the plaintiff herself examined PW.2 and as such, it creates serious doubt with regard to the credibility or genuineness of Ex.P2. Therefore, when Ex.P2 vanishes from the consideration of the court, naturally the court cannot rely upon Ex.P3 and Ex.P4. If these three documents are excluded or eschewed from consideration, nothing remains to show that the plaintiff has acquired title and possession over a site measuring 51 ft. x 31 ft.. Therefore, as prelude though the court under the factual situation cannot give conclusive finding on title for want of prayer sought. Under the above said circumstances, the plaintiff ought to have sought for declaration and then for injunction sofar as that particular 3 feet is concerned. Therefore, in the peculiar facts and circumstances of this case, I am of the opinion that the suit of the plaintiff is not maintainable without seeking relief of declaration of 26 title over the particular extent of the property i.e., 51 ft. x 31 ft. in general and specifically with reference to 3 x 31 ft on the Western side of the property. Therefore, I answer the substantial question of law No.1 accordingly and hold that the plaintiff's suit is bad for non-claiming of declaratory relief.
28. II SUBSTANTIAL QUESTION OF LAW:
"Whether appreciation of evidence by the courts below is perverse?"
It is quite understandable that the plaintiff has to establish the possession over the particular disputed area by showing cogent and convincing evidence before the court, particularly to tshe satisfaction of the Court. It is the evidence that the plaintiff has left 3 feet set back on the Western side of her house. The plaintiff has also got appointed a Commissioner before the trial Court and the Commissioner has submitted a report before the Court. Commissioner's report in fact has not been appreciated by both the Courts below. When the title of the plaintiff is not clearly established, then it 27 becomes necessary to appreciate the oral evidence and the report of the commissioner in a proper perspective. The Commissioner has categorically stated in his report that there is total 51 x 31 ft. including 3 feet in between the house of the plaintiff and the defendant. It is also stated that the plaintiff has fully constructed in the area of 48 feet x 31 feet including 3 feet in between the house of the plaintiff and the defendant. It is also stated that the plaintiff has fully constructed in the area of 48 ft. x 31 ft. It is also stated that the plaintiff has fully constructed in the area of 48 ft. x 31 ft. built up area of the house on the Western side of the house, and she has closed her property by means of putting a 3 ft. cross wall, which is on line with the Western wall of the house of the plaintiff's property. The very sketch if it is seen, the said cross wall is marked at 'B-I' portion appears to have been constructed, in order to avoid ingress and egress from the property of the defendant towards the property of the plaintiff ie., ingress and egress to the portion -B, A, J & I. Further added to that, the commissioner has 28 also stated that, towards the Western wall of the plaintiff's property there are two windows, but, those windows were without eves, and they open from inside the house of the plaintiff. The Commissioner also stated that there is no protuberance of any roof to the extent of 3 feet on the western side of the house of the plaintiff. Even in the sketch also it is not shown that there is any protuberance of 3 feet roof towards the property of the defendant. Here at the cost of repetition, a reference can be made to the evidence of PW.1 that he also said that, there is no protuberance of the roof by plaintiff towards the defendant's property. Therefore, it is clear that 48 ft. built-up area belonged to the plaintiff, but there is no semblance of material to show that she was actually in possession of 3 ft. and then she left 3 feet on Western side of her property.
29. Further, added to the above, PW.2- G.C.Nagaraju has also admitted in his evidence that, when the defendant started putting-up construction, the plaintiff has complained before PW.2 and he says in the examination-in-chief that, he visited the spot and 29 directed the defendant to leave 3 feet vacant space from his property and then she can put-up the construction. In the course of cross-examination, he admitted that after the complaint being lodged by the plaintiff, he went near the house of the plaintiff and defendant, but he says that he only measured the land of the plaintiff and not measured the site of the defendant. He also admitted that he only measured the land of Kempamma (Plaintiff) and thereafter, she came to know that the defendant has not left set back. Ex.P5 is the notice issued by PW.2 to the defendant. He admits that before issuing such notice, he inspected the spot, but he has not made any measurement of the site of the plaintiff or the defendant, therefore, it is rightly suggested that he is giving false evidence in order to suit the case of the plaintiff. It is also admitted by him that the defendant has also constructed the house leaving set back on Eastern side. At the time of issuance of licence, there was no objection by anybody, therefore, he has issued the licence. Therefore, looking to the evidence of PW.2, it is not an isolated admission 30 made by him. Once he accepts Ex.P2 or Ex.P5, and he is very certain in stating that he has not at all measured the property of the defendant to find-out whether the defendant has left any 3 feet set back on her Eastern Side of her site, but on the other hand, he only measured the site of the plaintiff. But as I have already referred, there is no certainty with regard to the extent of the property of the plaintiff. When once the court is of the opinion that there lies a doubt with regard to the genuineness of Exs.P2 to P4, then it becomes the burden on the plaintiff to show that the plaintiff possessed 51 ft. on East-West side and 31 ft. towards North-South and she actually left 3 feet set back towards the west of her property.
30. Both the trial court and the Appellate court have mainly concentrated on the case of the defendant rather than the plaintiff's case. In a suit for permanent injunction, when there is no issue cast upon the defendant and the entire issues are cast upon the plaintiff, it is ultimately the plaintiff has to succeed or fail on the case made-out by the plaintiff 31 himself/herself. Even there are lapses and lacunas on the part of the defendant, the plaintiff cannot rely upon the weakness of the defendant for the purpose of succeeding her case. The weakness or lapses on the part of the defendant cannot be taken as filling up of the blanks or the lapses lacunas in the case of the plaintiff. Therefore, the plaintiff has to stand on her own footing. If once the plaintiff establishes or proves her case with all probabilities, then only the court has to look into whether the proven case of the plaintiff is disturbed or disproved by the defendant's case by means of preponderance of probabilities. If the plaintiff herself failed to establish her case, even the defendant's weakness in any manner cannot be taken into consideration for the purpose of taking the case of the plaintiff as proved, which is the fundamental basic principle that lost sight of by the trial Court and the First Appellate Court. Therefore, I am of the opinion that, on re-appreciation of the entire evidence, it can be safely held that the appreciation of the evidence by both the courts is perverse and they are not referring to the 32 materials on record. Therefore, I answer the second substantial question of law also in the 'Affirmative'.
31. Though having come to the conclusion that the plaintiff has not proved her case with reference to possession of 51 ft. on East-West side of her property, nevertheless, the facts and circumstances of the case clearly goes to show that 3 feet space appears to have been in existence between the two properties. It is also evident from the photographs and also the Commissioner's report that up to 48 feet, the plaintiff has built her house. In order to whitewash or plasting the Western Wall of the plaintiff, there is no other way except this 3 feet., which is 3x31 feet area in between the house of the plaintiff and the defendant. Therefore, to a limited extent, the plaintiff is entitled for some relief to safeguard the Western wall of the plaintiff's property so to that extent the defendant can be restrained from interfering in any manner with the work of plaintiff like plasting and whitewashing the Western Wall. To that extent only, in my opinion, the plaintiff is entitled for the remedy. It is not that the plaintiff is not 33 left with any other remedy. The plaintiff can still examine whether she can file a suit for declaration of her title to the property, because in this particular case, there is no issue or a pleading with reference to the title of the property of the plaintiff and both the courts have not gone into and given any finding with regard to the ownership though this court has, as a matter of prelude, considered the title of the plaintiff. It does not mean to say that it is an absolute finding.
32. Under the above facts and circumstances of the case, I proceed to pass the following;-
ORDER
The judgment in O.S. No.100/2007 dated
21.04.2011 passed by the Additional Civil Judge (Jr.Dn.) at Channapatna and the judgment and decree passed in R.A. No.75/2012 dated 03.12.2012 by the learned Senior Civil Judge and JMFC at Channapatna, are hereby set aside.
The plaintiff's suit is partly decreed only to the extent that the plaintiff is entitled for an order of 34 injunction to safeguard the Western Wall of her house. The defendant is hereby restrained from interfering with the plaintiff's ingress and egress in the said 3 feet space except for the purpose of plaintiff carrying out the work of plasting, white-washing, repairing the Western Wall and Windows of her property. Except that the plaintiff has no other right over the said schedule property.
Accordingly, the appeal is partly allowed. In the facts and circumstances of the case, the parties have to bear their respective costs.
Sd/-
JUDGE PL/KGR*