Karnataka High Court
Smt.Channabasappa S/O Mallappa ... vs Mallikarjun S/O Mallappa Mulimani on 2 February, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.100544/2019 (DEC-INJ)
BETWEEN
CHANNABASAPPA M.MULIMANI,
SINCE DECEASED BY HIS LRS
1(a) SHRI.VEERESH S/O CHANNABSAPPA MULIMANI,
AGE: 40 YEARS, OCC: AGRICUTURE,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
1(b) LATA W/O IRAPPA SANKANNAVAR,
AGE: 45 YEARS, OCC: HOUSEWIFE,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
1(c) SUDHA W/O CHANNABASAPPA MULIMANI
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
1(d) SAVITA W/O RAVISHANKAR MALLADADHA
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
... APPELLANTS
(BY SRI.SANTOSH D.NARGUND, ADV.)
AND
MALLIKARJUN S/O MALLAPPA MULIMANI,
SINCE DECEAED BY HIS LRS
2
1(a) VINOD S/O MALLIKARJUN MULIMANI,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
1(b) SANTOSH S/O MALLIKARJUN MULIMANI,
AGE: 43 YEARS, OCC: AGRICULTURE & BUSINESS,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
1(c) DINESH S/O MALLIKARJUN MULIMANI,
AGE: 41 YEARS, OCC: AGRICULTURE & BUSINESS,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
1(d) SUPRITA W/O SANJAY KARJAGI,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O VAGESHNAGAR, RANEBENNUR,
TQ.RANEBENNUR, DIST: HAVERI-581110.
2. BASAVANEPPA S/O MALLAPPA MULIMANI,
SINCE DECEASED BY HIS LRS
2(a) NEELAMMA W/O MANJUNATH MULIMANI,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O BENNIHALLI,,TQ.HARAPANAHALI,
DIST: DAVANAGERE
2(b) MALLAPPA S/O BASAVANEPPA MULIMANI,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
2(c) SHARADHA W/O SURESH DARANEPPANAVAR,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O CHIKKOUNSHI TQ.HANGAL,
DIST: HAVERI-581110.
3. SMT.MURIGEMMA W/O VEERABHADRAPPA MULIMANI,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
3
4. SMT.MANJULA W/O SHANKARAGOUDA GOOLANAGOUDRA,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
5. SMT.MAMATA W/O SHANKARGOUDA GOOLANAGOUDRA,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O CHIKAKURUVATTI,
TQ.RANEBENNUR, DIST: HAVERI-581110.
6. SMT.SHOBHA W/O SHANKARAGOUDA GOOLANAGOUDRA,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O CHITRA ROAD, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
7. SMT.ROOPA W/O RUDRAPPA TALAMANI,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
8. SMT.GEETHA W/O SOMASHEKAR SANKANNAVAR,
AGE: 38 YEARS, R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
9. SMT.BASAMMA W/O GANGADHAR MULIMANI,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O NEHRUNAGAR, BYADGI,
TQ.BYADGI, DIST: HAVERI-581110.
NOW AT C/O REVANASHIDDAPPA
MUDDAPPALAVAR (SADIMANI) HALAGERI,
TQ.RANEBENNUR, DIST: HAVERI.
(DELETED)
... RESPONDENTS
(BY SRI.M.H.PATIL & SRI.HARSHWARDHAN M.PATIL, &
S.A.AKALWADI, ADVS. FOR R1(a-d),
R2(a)-R2(c), R3 TO R8 SERVED UNREPRESENTED,
R9 DELETED V/O/D 01.02.2021)
THIS APPEAL IS FILED UNDER SECTION 100 R/W ORDER 41
RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 01.04.2015 IN R.A.NO.21/2011 PASSED BY THE SENIOR CIVIL
JUDGE, IT COURT, BYADAGI AND JUDGMETN AND DECREE DATED
07.09.2011 PASSED BY THE CIVIL JUDGE & JMFC, BYADGI IN
O.S.NO.76/2004.
4
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by defendants questioning the divergent judgments rendered by courts below.
2. Facts leading to the case are as under:
Respondent/plaintiff filed a suit for declaration and consequential relief of injunction as well as mandatory injunction to declare that the portion 'ABCD' shown in the sketch was kept common and in the said common space, there is a road/common passage which connects the main road from their respective hissas. Respondent/plaintiff further contended that plaintiff and defendants are family members and there was a partition in the family and the respective shares allotted to plaintiff and defendants was depicted in the plaint sketch by specifically contending that in terms of their allotment of shares they are in possession and they have constructed residential houses in the said 5 property bearing No.306/4. The respondent/plaintiff grievance is that 'ABCD' portion is kept joint and plaintiff is entitled to have an access to the main road. It is also contended that the present appellants/defendant Nos.1 and 2 are also using this common road in order to have access to their respective properties. It is further specifically contended that even prior to construction of house by respondent/plaintiff, defendants and plaintiff were using this common road. It is specifically pleaded in the plaint that respondent/plaintiff has no alternate road except this suit schedule common road. The grievance of respondent/plaintiff is that defendant No.1 has highhandedly tried to put up a construction in the common passage which was kept common while effecting partition in the family. When he forcibly tried to construct latrine, the present suit for declaration was filed in O.S.No.76/..
3. During the pendency of the suit, it appears that an amendment was sought seeking relief of mandatory 6 injunction by specifically alleging that defendant No.1 has put up a toilet in the common passage highhandedly without securing permission from the competent authorities.
4. After receipt of summons, appellants appeared and contested the proceedings and stoutly denied the entire averments made in the plaint. Though the present appellants have admitted their relationship with respondent/plaintiff and also admitted that there was a partition in the family and the ancestral property was divided among the family members and that they are in possession and enjoyment of their respective shares, however contended and disputed the existence of suit common road which was shown in the hand sketch map annexed to the plaint. It was specifically denied that plaintiff is using the alleged common road to reach their property from Byadagi-Motebennur road. The present appellants have further stoutly denied that defendant No.1 7 has illegally constructed a latrine without obtaining permission from the concerned Town Panchayat. It was further specifically contended in the written statement that the latrine is towards western side of the property which has fallen to the share of plaintiff when they were in joint family and therefore, it was contended that plaintiff and defendants are both using the latrine as a common latrine and this latrine was in existence much prior to partition which was effected in 1988
5. The respondent/plaintiff to substantiate his claim examined three witnesses as P.Ws.1 to 3 and relied on documentary evidence vide Exs.P1 to P27. The present appellants/defendants by way of rebuttal evidence examined defendant No.1 as D.W.1 and relied on documentary evidence vide Exs.D1 to D4. Pending suit a Commissioner was also appointed to carryout local inspection and submit a report and Commissioner report was also placed on record. The trial court having assessed 8 oral and documentary evidence answered issue Nos.1 to 3 in the negative by holding that respondent/plaintiff has failed to prove that he along with the present appellants is joint owner and in possession of the suit 'ABCD' property and further recorded a finding that plaintiff has failed to prove the alleged obstruction by the present appellants/defendants. The trial court having assessed the oral and documentary evidence has come to the conclusion that respondent/plaintiff has failed to prove the existence suit schedule road and that he has got joint right to use the suit road as alleged in the plaint. The trial court having come to the conclusion that existence of suit schedule road is not proved has further recorded a finding that the toilet constructed by appellants/defendants is not situated within the common passage which was kept joint. The trial court has also come to the conclusion that respondent No.1/plaintiff has a joint right over 20 feet common road towards southern side corner of the property. On these set of reasoning trial court has come to the conclusion that 9 relief of declaration cannot be granted as respondent/plaintiff has failed to prove the existence of suit road, consequently the trial court was of the view that no injunction can be granted much less the relief of mandatory injunction.
6. Feeling aggrieved by the judgment and decree of the trial court, respondent/plaintiff preferred an appeal before the first appellate court. The first appellate court having independently assessed the evidence on record has taken note of the appointment of the Commissioner in the present case on hand. The Commissioner having visited the spot and based on memo of instructions submitted by plaintiff has submitted his report as per Ex.P5 along with hand sketch as per Ex.P16. Appellate court having meticulously examined these two documents has come to the conclusion that toilet constructed by present appellants was hardly prior to 5-6 months from the date on which the commission work was carried out. Having perused the 10 Commissioner's report and other relevant materials, the first appellate court found that this toilet is shown in the middle of the common pathway. The first appellate court also found that this Commissioner's report was not at all seriously contested by the present appellants/defendants.
Infact appellate court found that on the contrary, the present appellants submitted a memo stating that, they have no objection to the Commissioner's report as per Ex.P16. The first appellate court has also taken judicial note of the fact that respondent/plaintiff to corroborate the evidence has examined the Commissioner. The Commissioner who is examined as P.W.3 has deposed in terms of the commissioner's report. The first appellate court has also taken note of the admissions given by P.W.2 in evidence that while defendants were highhandedly constructing the toilet, the same was objected by respondent No.1/plaintiff. On these set of reasoning, the first appellate court has come to the conclusion that the pathway which is depicted in the Commissioner's sketch is 11 kept common and plaintiff and defendants are jointly entitled to the said suit road so that they can access to the main road from their respective residential houses. The first appellate court has also found that construction of toilet at the instance of defendant Nos.1 to 3 was without securing any permission from the authorities. Therefore, the first appellate court was of the view that the judgment rendered by the trial court in recording a finding that existence of suit road is not proved is perverse and contrary to evidence on record. The first appellate court found that the trial court has not even taken pains to examine the Commissioner's report, the sketch produced therein and also the ocular evidence of the witnesses examined by the plaintiff. It is in this background, the first appellate court was of the view that the judgment and decree of the trial court suffers from serious infirmities and therefore, would warrant interference at the hands of the first appellate court. On these set of reasoning, appeal is allowed, consequently suit filed by the respondent/plaintiff 12 came to be decreed thereby directing the present appellant No.1 to demolish the toilet shown at 'QRST' in the rough sketch annexed with the plaint. Consequently, mandatory injunction was granted directing defendant to demolish the toilet. It is this judgment and decree of the first appellate court which is questioned by the defendants.
7. Heard the learned counsel for the appellants and perused the judgments under challenge.
8. It is not in dispute that the suit schedule property was admittedly ancestral property. During trial, both the parties have admitted that they have effected partition in Sy.No.306/4 which was totally measuring 21 guntas. In the said partition, it is clearly admitted that 5 guntas 3 annas of open space was allotted to the share of plaintiff and the said portion is marked by letters 'EFGH' in the hand sketch map annexed to the suit plaint. 2 guntas and 1 anna consisting of a house and a backyard and 1 gunta 8½ annas of open space allotted to the share of 13 appellant No.1. Similarly, 2 guntas consisting of house and backyard and 1 gunta 9½ annas of open space was allotted to the share of defendant No.3. It is also admitted that in the partition, 3 guntas 8 annas of open space was kept joint to utilize the same as a common road towards southern and northern side of the properties which were allotted to the share of plaintiff and defendants respectively. The Commissioner's report and the sketch which are placed on record clearly depict the existence of suit passage. In the said report it is clearly indicated that defendant No.1 has indulged in constructing a toilet in the middle of the common passage and therefore, it clearly established that when the passage was kept common, appellants/defendants had no exclusive right to change the nature of the common passage which was intended to be kept joint so as to enable the family members to use the said common suit road to have access to the main road. 14
9. The trial court at one breath has come to the conclusion that common passage is kept intact and defendant No.1 not constructed a toilet in the common passage and the said common passage was in existence much prior to the partition. These findings are palpably erroneous in the absence of rebuttal evidence let in by the present appellants/defendants. Though the Commissioner's report cannot be totally relied on and it is not a conclusive evidence, however, the fact that defendant No.1 has not secured permission from the authorities to put up construction would strengthen the case of the respondent/plaintiff and would further probabilize that the toilet is constructed by the appellants by encroaching upon the common passage. When the location of the properties and the existence of common suit passage is under dispute, it is always better to have recourse to local inspection. Some evidence can be gathered only by way of local inspection. Therefore, in this background, the trial court in fact was justified in securing local inspection. When 15 the Commissioner's report and sketch was available, the trial court was required to examine the admissibility of the Commissioner's report and the sketch produced therein, more particularly, when appellants/defendants did not object to the Commissioner's report. The first appellate court being the final fact finding authority has meticulously examined the material on record and has come to the conclusion and has recorded categorical finding that the judgment and decree of the trial court suffers from serious perversity and the same is palpably erroneous. The first appellate court has also found that the trial court has virtually misread the evidence on record. Therefore, I am of the view that the judgment and decree of the first appellate court in granting relief of mandatory injunction in favour of respondent/plaintiff is in accordance with law and the findings arrived at is based on material available on record. I do not find any infirmities and illegalities in the judgment under challenge.
16
10. Therefore, no substantial question of law arises for consideration in the present appeal. Accordingly, the appeal stands dismissed.
SD/-
JUDGE MBS/-