Karnataka High Court
Hari Ram Solanki vs Nagendra Kumar on 15 May, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MAY 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.11 OF 2012
BETWEEN:
HARI RAM SOLANKI
S/O LATE JASSARAM
AGED ABOUT 62 YEARS,
RESIDING AT NO.724,
4TH WEST CROSS,
ASHOKA ROAD,
MYSURU-570001.
...APPELLANT
(BY SRI. H.M.MURALIDHAR, ADVOCATE)
AND:
1. NAGENDRA KUMAR
S/O LATE C.B.PUTTAPAPAIAH
AGED ABOUT 59 YEARS,
'ABHISHEK METALS'
UMA TALKIES ROAD,
GANDHI SQUARE,
MYSURU-570001.
2. S.NARAYANA SHETTY
S/O LATE B.SRINIVAS SHETTY
AGED ABOUT 90 YEARS,
RESIDING AT NO.724,
2
4TH WEST CROSS, ASHOKA ROAD,
MYSURU-570001.
...RESPONDENTS
(BY SMT. M.C.NAGASHREE, ADVOCATE FOR RESPONDENT
NO.1;
RESPONDENT NO.2 - ABATED VIDE ORDER DATED
24.05.2012)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED: 26.08.2011 PASSED IN R.A.NO.507/2010
ON THE FILE OF I ADDL. DISTRICT JUDGE, MYSORE,
PARTLY ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 03.01.2007 PASSED IN
O.S.NO.647/2001 ON THE FILE OF THE V ADDL. FIRST
CIVIL JUDGE (JR. DN.) MYSORE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.02.2020, THIS DAY THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the respondent No.2 in R.A.No.507/2010 challenging the Judgment and Decree dated 26.08.2011 passed by the First Additional District Judge, Mysuru in R.A.No.507/2010, by which the First Appellate Court 3 reversed the Judgment and Decree of perpetual injunction granted by the V Additional First Civil Judge (Junior Division), Mysuru dated 03.01.2007 in O.S. No.647/2001.
2. The appellant herein was not a party to the suit before the Trial Court. He was also not arrayed as a respondent in R.A.507/2010. The respondent in R.A.No.507/2010 filed a memo dated 20.11.2010 stating that he had disposed off the entire suit property and was not interested to defend the appeal. Consequent thereto, an application was filed to implead the appellant as respondent No.2 in R.A.507/2010 which was allowed. Since the appellant has stepped into the shoes of the plaintiff, the parties shall henceforth be referred to as they were arrayed before the Trial Court. It is seen that this appeal abated as against the original plaintiff in terms of the Order of this Court dated 24.05.2012.
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3. The plaintiff filed O.S. No.647/2001 for perpetual injunction in respect of a residential house bearing No.724, measuring East to West 21 feet and North to South 28 feet. The plaint reveals that the father of the plaintiff had purchased the suit property in terms of a sale deed dated 16.03.1947. The property so purchased comprised of a residential house along with appurtenant vacant space on the southern side measuring East to West 21 feet and North to South 4 feet. This vacant space is stated to be part and parcel of the property that was purchased by the father of the plaintiff. It is claimed that the plaintiff was using the vacant space as its absolute owner. The plaintiff had laid six windows in the southern wall of the plaintiff's house and that the plaintiff was enjoying light and air from this vacant space on the south. The southern side wall had a door that opened into the vacant space. The defendant is the owner of the property lying on the southern side of the property of the plaintiff. It is 5 stated that about 2 to 3 years prior to the filing of the suit, the defendant had constructed a ground floor in his property. While doing so, he had encroached 1½ feet of the vacant space of the plaintiff. The defendant attempted to fix a window in the northern wall opening into the vacant space of the plaintiff, which was resisted by the plaintiff and the defendant did not install any window. The defendant thereafter constructed a first floor and while doing so, on 01.08.2001, he attempted to install a window on the northern side of the wall towards the vacant space of the plaintiff's property. The plaintiff immediately lodged a complaint with the police, who directed the plaintiff to approach the Civil Court. It is stated that the defendant had sloped the roof of the first floor, so that the water drained off into the vacant space of the plaintiff. Thus, the plaintiff sought for a perpetual injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit 6 property by fixing a window towards the vacant space and to restrain the defendant from sloping the roof of the first floor and not to permit the defendant to drain out rain water into the vacant space.
4. The defendant filed his written statement essentially contending that the vacant space that was claimed by the plaintiff did not belong to the plaintiff but belonged to the Municipal Corporation. He claimed that the vacant space was a Municipal by-lane and that the plaintiff had no right to file a suit for perpetual injunction in respect of the aforesaid Municipal by-lane. He contended that his father had purchased the property bearing Door No.721 in the year 1943 and that the municipal by-lane existed then. He claimed that the building that existed had three windows in the northern wall opening into the municipal by-lane. He claimed that the construction that was existing was pulled down and the defendant and his brother divided 7 the property in terms of which, the defendant's brother had constructed a house, while the defendant had also constructed a ground floor. He contended that the defendant had every right to put up a window in the first floor to open into the vacant space as that belonged to the Government. He also contended that the suit for perpetual injunction was not maintainable without the plaintiff seeking for a declaration of his title to the suit schedule property.
5. Based on the aforesaid rival contentions, the Trial Court framed the following issues:
(i) Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule property?
(ii) Whether the plaintiff proves that defendant is making slope of RCC of first floor and thereby water falls on the plaintiff's vacant space?8
(iii) Whether the plaintiff is entitled for the relief as prayed for?
(iv) What decree of order?
6. The plaintiff's younger brother as the Power of Attorney was examined as PW1 and another brother of the plaintiff was examined as PW2 and they marked Exs.P1 to P13. The defendant was examined as DW1 and he marked Exs.D1 to D14.
7. The Trial Court noticing the order passed by the Deputy Director of Land Records as at Ex.P13 and the sale deed by which the plaintiff claimed title to the suit schedule property, held that the plaintiff had proved his title over the suit schedule property and also possession of the suit property. The Trial Court found that the defendant had no manner of right, title or interest to drain out rain water from his house into the suit schedule property and also to claim right of air and light from the suit schedule property and thus, decreed 9 the suit and had perpetually restrained the defendant from interfering with the possession of the plaintiff and by fixing a window towards the vacant space of the plaintiff and from draining out the rain water from the first floor into the vacant space of the plaintiff.
8. The defendant filed an appeal before the First Appellate Court. During the pendency of this appeal, the plaintiff sold the suit schedule property to the appellant herein and thus, the appellant was arrayed as respondent No.2 before the First Appellate Court. The First Appellate Court summoned the record of the Trial Court, found that the order of the Deputy Director of Land Record was challenged before the Deputy Commissioner and that the same had not attained finality. The First Appellate Court therefore, held that instead of granting perpetual injunction, the First Appellate Court felt it appropriate to modify same to status-quo in respect of the suit schedule property, 10 until disposal of the proceedings before the Revenue / Survey Authorities.
9. The respondent No.2 who had purchased the suit property during the course of proceedings has filed this regular second appeal. This appeal was admitted to consider the following substantial question of law "Whether first appellate court was justified in directing the parties to maintain status quo and further directing the defendant to seek a relief of declaration?"
10. Heard the counsel for the plaintiff / appellant and the counsel for the respondent No.1. I have perused the records of the Trial Court and the First Appellate Court as well as their Judgments respectively. I have also considered the grounds urged by the appellate in the appeal memorandum.
11. The counsel for the plaintiff / appellant contended that the passage that was claimed by the 11 plaintiff and lying on the Southern side of the suit property was appurtenant vacant space and was the set back area and not municipal by lane as contended by the defendant. He argued that the defendant without setting apart corresponding set back area in his property could not undertake any construction and was not entitled to any light or air by installing a window in the first floor of the premises or drying out water from the first floor into the passage. He further argued that the Order assigning CTS No.179 to the by-lane was challenged before the Deputy Director of Land Records, who after considering all the records and after a spot inspection, passed an Order cancelling the CTS No.179. Per contra, the defendant argued that the passage was identified as a conservancy and that a separate CTS number 179 was assigned to the said passage. He contended that the property that the defendants father purchased in the year 1943, comprised of an old building in the ground floor. He contended that the old 12 building had windows opened into the passage or the conservancy. He would contend that the defendant had not put up any windows in the ground floor, but in the first floor, he had attempted to install the windows opening into the conservancy. He would also contend that the rain water from the old building was drained into the conservancy earlier and that the same position was continued by the defendant. He thus would contend that since the passage lying on the Southern side of the property of the plaintiff was a conservancy, he was entitled to install a window opening into such conservancy and that he was entitled to drain water into the conservancy. He would also contend that though the plaintiff had challenged the order assigning separate property number to the conservancy before the Deputy Director of Land Records and though the Deputy Director of Land Records had set aside the CTS No.179 assigned to the municipal by-lane and treated it as a conservancy, the defendant contended that he had 13 challenged the same before the Deputy Commissioner as per Ex.D12. He would thus contend that the First Appellate Court was justified in directing status-quo to be maintained until the decision of the appeal before the Deputy Commissioner.
12. In order to have a better picture of the suit property and the alleged by-lane, this Court appointed a Court Commissioner to visit the spot and identify the passage and also the property of the plaintiff and the defendant. Pursuant there to, the Court Commissioner submitted a report that indicates that the construction in the property of the plaintiff was measuring East to West 22 feet and North to South 25 feet including the passage. The passage measured 2.5 feet in width and 22 feet in length. It is also stated that this passage is covered by 30 feet high wall on the North and 40 feet high walls of the adjacent building lying on East and West. It is also reported that the passage does not 14 connect to any road. There is 3 inch closed water pipe on the plaintiffs building. There were 6 windows facing the passage. The second floor of the house property is covered by an asbestos cement sheet roof that slant towards the passage. It is stated that water, falling from the roof would flow into the passage. There seems no proper provision for water to run out of the passage. In so far as the property of the defendant is concerned, it is stated that the building measures 25 feet East to West and North to South 30 feet excluding the passage.
13. It is therefore clear that the dispute between the plaintiff and the defendant relates to the vacant space lying on the south of the suit property. It is relevant to note that this suit is only for the relief of perpetual injunction. However, since the parties have relied upon the title deeds, it is imminent that these documents are referred to for the incidental purpose of 15 identifying whether the plaintiff had any title to the suit property.
14. Ex.P2 is a mortgage deed dated 05.11.1941 by which the suit property was mortgaged in favour of the father of the plaintiff. This discloses that the suit property comprised of a two storeyed structure. Ex.P3 is a release deed dated 16.02.1947 executed in favour of the father of the plaintiff by which the interest of the owner of the suit property was released in favour of the father of the plaintiff. The plaintiff, his brothers and their father pledged the suit property by Ex.P4 dated 02.05.1951. This document discloses the measurement of the suit property as East to West - 21 feet x North to South - 28 feet. Ex.P5, is the acknowledgment issued by the police acknowledging the receipt of a complaint of the plaintiff. Ex.P6 is the endorsement of the police directing the plaintiff to approach the civil court. Exs.P7 to 10 are the photographs of the building in the suit 16 property. Ex.P11 is the certified copy of Ex.P2. Ex.P12 is the certified copy of Ex.P3. Ex.P13 is the Order passed by the Deputy Director of Land Records cancelling CTS No.179 and declaring that is was not a conservancy.
15. The documents marked by the defendant are Ex.D1 to D4 which were the photographs confronted and marked through PW1. Ex.D5 indicates the assignment of CTS No.179 to a conservancy measuring 4 to 6 square meters. Ex.D6 is the corresponding P.T sheet sketch of CTS No.179. Ex.D7 is the property card of CTS No.186 in the name of the father of the defendant. Ex.D8 is the property card of CTS No.178 in the name of plaintiff's father. Ex.D9 is the sale deed dated 16.08.1943 by which the father of the defendant purchased the property, Ex.D10 is the application for license filed by the defendant to construct additional domestic building in his property. Ex.D11 is the acknowledgement of receipt of Ex.D10. Ex.D12 is the 17 appeal memorandum filed by the defendant challenging the order passed by the Deputy director of Land Records.
16. In so far as the property of the defendant is concerned, there is no dispute that the property of the defendant lies to the South of the property of the plaintiff. The defendant does not claim title to the vacant land lying on the south of the suit property but he claimed that it was a municipal by-lane. The claim of the defendant was based on the Ex.D5 and Ex.D6. However, the entry in Ex.D5 and D6 were set aside by the Deputy Director of Land Records in terms of Ex.P13. Though the defendant claimed that the Order at Ex.P13 was challenged before the Deputy Commissioner on 12.11.2004, he was unable to place the outcome of the appeal.
17. The defendant admitted that the plaintiff was in possession of the suit property. The attempts of 18 the defendant to extract from PW1 and PW2 that there were windows that opened into the vacant space proved futile. The suggestion of the defendant that rain water from the roof of the house of the defendant was drained into the vacant space was also denied. The defendant on the other hand admitted that the property possessed by the plaintiff and his father measured East to West 21 feet and North to South 28 feet. He admitted that the vacant space on the south of the suit property was covered on all sides and that no one else could enter the vacant space. He admitted that when he constructed the ground floor, the plaintiff did not permit windows to be installed on the north opening into the vacant space. He curiously admitted that the municipal authorities had not permitted him to install windows in the first floor on the northern side opening into the vacant space. Further he admitted that in Ex.D9 there was no reference to the existence of any by-lane or conservancy but admitted that the northern boundary was shown as 19 private property. He further admitted that the rain water from the first floor was draining into the vacant space.
18. The only question that therefore, needs to the considered is whether the passage lying between the property of the plaintiff and the defendant is a conservancy or is it a property of the plaintiff. The Commissioner has reported that the suit property belonging to the plaintiff including the passage measures 22 ft x 25 ft. The rough sketch prepared by the Commissioner would indicate that the property of the plaintiff including the passage would measure 27.5 ft. It is found from Exs.P7 and P8 as well the report of the Court Commissioner that the defendant had not laid any windows on the Northern of his property opening into the passage. It is only in the first floor that the defendant has installed a glass sealed window that opens into the passage. Ex.P13 would 20 disclose that the Deputy Director of Land Records had set-aside the Sy.No.179 that was allotted to the passage identifying it as conservancy and directing the name of the plaintiff to be incorporated in so far as the area is concerned. The defendant has challenged the order passed by the Deputy Director of Land Records before the Deputy Commissioner as is evident from Ex.D12. Thus, the Trial Court had rightly decreed the suit.
19. The First Appellate Court could not have lost sight of the fact that even if the passage was deemed to be a conservancy, the defendant as the owner of the property adjoining the property of the conservancy, is bound to observe set-back norms. He could not have constructed his building abutting the conservancy, as this conservancy is deemed to never be construed as a set-back area of the property of the defendant. Even on this count too, the defendant was not entitled to claim that he is entitled to light and air from the passage and 21 or that he is entitled to drain out the water from his building into conservancy.
20. I have seen the photographs which indicate that the passage is hardly 2.8 feet in width and at any rate cannot be a conservancy as alleged by the defendant. Further, the conservancy seems to be closed on both the ends and does not open into any road or street. Thus, it cannot be construed that the claim of the defendant was honest and genuine. Be that as it may, the evidence of the parties would indicate that the defendant did not have any claim over the suit property of the plaintiff. He was unable to establish that the passage lying between the property of the plaintiff and the defendant was a conservancy.
21. Under the circumstances, the First Appellate Court was not justified in interfering with the Judgment and Decree of the Trial Court and modifying the Decree of perpetual injunction to status-quoin respect of the suit property. The First Appellate Court could have 22 reserved right to the defendant to seek appropriate reliefs if the Order of the Deputy Director of Land Records at Ex.P13 was set aside.
22. In that view of the matter, this regular second appeal stands allowed and Judgment and Decree dated 26.08.2011 of the First Appellate Court in R.A.No.507/2010 is set-aside and Judgment and Decree of the Trial Court dated 03.01.2007 in O.S.No.647/2001 passed by the V Additional First Civil Judge (Junior Division), Mysuru is restored and upheld. It is needless to state that if the defendant has succeeded in annulling Ex.P13, he is entitled to claim such reliefs as he may be entitled to.
Parties to bear their own costs.
Any application pending shall stand disposed.
Sd/-
JUDGE GH