Karnataka High Court
T V Ramachandraiah vs Bhanwai Bai @ Bhagwati on 19 June, 2012
Author: A.S.Bopanna
Bench: A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
REGULAR FIRST APPEAL NO. 15/2010
BETWEEN:
SRI T.V. RAMACHANDRAIAH
AGED ABOUT 62 YEARS
R/A NO. 112/2, 17TH 'A' CROSS,
BANGALORE - 560 055
... APPELLANT
(BY SRI GOUTAM & SRI RAJESHWAR, ADVS.)
AND:
SMT BHANWAI BAI @ BHAGWATI,
W/O. LAKSHMILAL BHOHARA,
AGED ABOUT 55 YEARS
R/A NO. 112/2, 17TH 'A' CROSS,
VIII MAIN, MALLESWARAM,
BANGALORE - 560 055
... RESPONDENT
(BY SRI V.B. RAVISHANKAR, SRI RAMESHS.N &
SRI SHASHIDAR, ADVS.)
***
THIS RFA IS FILED U/SEC. 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED: 07.10.2009
PASSED IN O.S.NO.9541/1999 ON THE FILE OF THE V
2
ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE
DECREEING THE SUIT FOR PERMANENT INJUNCTION,
MANDATORY INJUNCTION.
THIS RFA COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant herein is the defendant in O.S. No.9541/1999.The suit in question was filed by the plaintiff seeking for permanent injunction as also mandatory injunction to direct the defendant to demolish the construction put up by the defendant as indicated in the 'C' schedule to the plaint. The trial Court after considering the rival contention has decreed the suit. The defendant is therefore before this Court in this appeal.
2. The parties are referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity. 3
3. The case of the plaintiff is that, she is the absolute owner of the suit schedule property bearing Municipal No. 112/1, Corporation division No. 3, 8th Main road, 17th 'A' Cross, Malleshwaram, Bangalore-
55. The measurement of the property belonging to the plaintiff is indicated as East to West 31ft on the northern side, 30 ft on the southern side, North to South on the eastern side 19 ft. and on the Western side 18 ft.
4. The details with regard to the purchase of the property of the plaintiff under the sale deed dated 19.06.1989 has also been stated. The property in question originally was a composite property bearing no. 112 which belonged to one Sri. B.N.Lakshminarasimhaiah. The said property thereafter was sub divided and the property purchased by the plaintiff is No. 112/1 as indicated above. The defendant is stated to be the owner of the 4 property bearing no. 112/2 which is on the northern side of the plaintiff's property.
5. The grievance putforth in the suit is that the defendant has unauthorisedly put up two pillars in the property belonging to the plaintiff and has constructed the compound wall. Hence, it is contended that the defendant has encroached about 3 ft. open space belonging to the plaintiff. Hence, it was contended that the construction unauthorisedly put up should be directed to be demolished and the defendant should be injuncted from interfering with the peaceful possession of that portion of the property by the plaintiff.
6. The defendant on being served with the suit summons appeared and disputed the case putforth by the plaintiff. It is contended by the defendant that as per the measurements admitted by 5 the plaintiff themselves and also as indicated in the documents for purchase of the property, the defendant has purchased the property which is wider on the western side and narrower on the northern side. In this regard, it is contended that the property on the western side measures 10 mtrs., while on the eastern side it is 8.5 mtrs. In that context, it is contended that the pillars which has been constructed is in the property belonging to the defendant themselves, though it appears as if it is constructed in the open space of the plaintiff which is for the reason that the property purchased by the plaintiff is narrower on the western side towards the 8th main road. Hence, defendant sought for dismissal of the suit.
7. The trial Court on noticing the rival contention initially framed three issues for its consideration and thereafter two additional issues 6 were framed.
8. In order to discharge the burden cast on the parties, the plaintiff examined her power of attorney holder as PW-1 and marked the documents at Exs.P1 to P20. The defendant examined himself as DW-1 and marked the documents at Exs.D1 to D6. During the course of the proceedings, ADLR was appointed as Court Commissioner and the said Court Commissioner namely Sri. B.S. Venugopal was examined as CW-1 and the documents at Exs. C1 to C4 were marked. In the light of the contention putforth and the evidence tendered by the parties, the trial Court has held the material issues in the affirmative in favour of the plaintiff and has decreed the suit.
9. The learned counsel for the appellant while assailing the judgment of the trial Court would 7 contend that the trial Court in fact has misdirected itself while construing the evidence tendered by the parties. With reference to the report submitted by the Court Commissioner, it is pointed out by the learned counsel that with regard to the manner in which the pillars have been constructed and compound wall has been put up, there is no dispute. However, the photographs at Exs. P10 to P13 which has been noticed by the trial Court has influenced its decision which is not sustainable.
10. The learned counsel would point out that the pillar will naturally appear as if it is in the front of the plaintiff's house, since the defendant's property is wider on the western side and therefore the pillars though they appear so, is actually in the property belonging to the defendant. In that context, the learned counsel would point out that the sketch marked as Ex.C1 drawn out by the Commissioner in 8 fact would establish this fact in as much as the dimension of the properties belonging to both plaintiff and defendant has been indicated and this would show that the property belonging to the plaintiff is narrower on western side towards the 8th main road. In fact, the Commissioner has also indicated the spot where the pillars exist and the marking shown is within the property of the defendant. Pointing to the same, the learned counsel would contend that despite the said position, the trial Court has mistakenly taken into consideration that the Court Commissioner was cross-examined by the learned for the defendant. In this regard, it is contended that in fact certain application filed by the defendant has been rejected and defendant has neither filed objection nor cross-examined the Commissioner. But, the fact is that the plaintiff has filed objection to the Commissioner report and also has cross-examined the Commissioner. Hence, 9 learned counsel contends that, if the sketch at Ex.C1 is taken in its correct perspective, the suit ought to have been dismissed.
11. The learned counsel for the respondent- plaintiff would however seek to justify the order passed by the Court below. It is contended that the trial Court in fact has not only taken into consideration the report and the sketch submitted by the Commissioner but has also taken note of the documents which had been produced by the plaintiff to indicate that the defendant had in fact encroached upon the property belonging to the plaintiff. The learned counsel would point to the photographs, which were marked at Exs.P10 to P13, wherein the pillars are clearly indicated as blocking the front door of the plaintiff's property. Hence, when such evidence was available before the trial Court, the trial Court was justified in decreeing the suit. It is therefore 10 contended that the present appeal is without merit and the same is liable to be dismissed.
12. Having heard the learned counsel for the parties, in the background of the evidence which had been tendered before the trial Court and having re-appreciated the documents as well as the oral evidence which is available in the form of the Lower Court records, it is seen that with regard to the title to the property owned by the plaintiff and the defendant respectively there does not appear to be any dispute. The location of the properties adjacent to one another is also not in dispute. The measurement of the property belonging to the plaintiff as well as the defendant also does not admit any dispute in as much the plaintiff has clearly indicated the measurement of the property in the schedule to the plaint. In that context, to the extent of the Commissioner having indicated the 11 measurement in Ex-C1, it appears to be correct with regard to the measurement which have been admitted by the parties. However the dispute entirely is with regard to the fact as to whether the pillars have been constructed by the defendant in the plaintiff's property or in his own property. In this regard, a perusal of the photographs marked at Exs.P10 to P13 would certainly indicate as if the pillars have been put up and the walls has been constructed by the defendant in the open space in front of the plaintiff's house. In that view, since there is no dispute with regard to the measurement of the properties owned by each of them, the determination of the fact as to whether the pillars and the wall is constructed in the plaintiff's property or is within the defendants property could have been resolved entirely by the Commissioner's report. However, in the instant case, though the ADLR was appointed as Commissioner and sketch drawn by him is marked as 12 Ex.C1 and the reply to the memo of instructions of both of the parties has been marked as Ex.C2 to C3 and the measurement is also indicated therein, the depiction of the same in the site plan has lead to confusion in the matter.
13. In so far as the consideration of the report of the Commissioner, as noticed the trial Court has proceeded on the basis as if the defendant had grievance to the same and he had cross-examined the Court Commissioner. In fact, the trial Court having deduced from the said sketch that the plaintiff's property commences at the first and thereafter the property of the defendant is situated ought to have considered the same, keeping in view the measurement of the respective property indicated towards the Western side i.e. the side facing the 8th main road. The correct measurement of the respective property and the irregular shape of 13 the property could be determined, if the property is measured from the edge of the property of the plaintiff towards 17th cross since, the plaintiff's property faces the 8th main road on the Western side and the same has also the road namely the 17th cross of its Southern side. In the site plan which is available at Ex.C1, the measurement of the plaintiff's property on the Western side facing the 8th main road is shown as 5.60 mtrs. and thereafter the measurement on the said side of the defendant's property is shown as 10 mtrs. However, the sketch drawn out by the Commissioner does not indicate the tapering measurement in the sketch. However, while indicating the existence of the pillar and the compound wall, the same has been shown within the property belonging to the defendant. The position would have been clear, if the site plan was drawn in such a manner truly depicting the shape and measurement to indicate the narrower portion of the 14 plaintiff's property on the Western side and wider portion of the property of the defendant on the said side. This aspect in fact requires reconsideration by securing a fresh commission to be made. Hence, the manner of consideration presently by the trial Court to come to the conclusion cannot be sustained. Therefore, the judgment passed by the trial Court needs to be set aside and the matter is to be remitted to the trial Court for reconsideration by once again securing the ADLR, who had earlier been appointed as Commissioner to visit the spot in the presence of the parties and the learned counsel and draw up the site plan keeping in view the measurement indicated in the respective title documents of the parties. While doing so, the Commissioner shall measure the property of the plaintiff first from its edge on the side of the 17th 'A' cross towards and measure the width of the plaintiff's property on the Western side facing the 8th main 15 road. That will indicate the exact measurement i.e. the width of the open space which has been left by the plaintiff in front of her property on the Western side. After fixing the boundaries to the plaintiff's property, on measuring thus, the measurement of the defendant's property on the Western side facing the 8th main road is to be taken into consideration. On such measurement being taken, a site plan shall be drawn and in the said site plan the exact location of the pillar and the wall constructed by the defendant shall be indicated which will enable the trial Court to determine as to whether the pillar and the wall is actually situated in defendant's property or whether the defendant has constructed it in the plaintiff's property and such consideration will resolve the issue between the parties more particularly keeping in view the fact that the sites belonging to the plaintiff as well as the defendant are not symmetrical. 16
14. In view of the above, the judgment dated 07.10.2009 is set aside. The suit in OS. No. 9541/1999 is restored to the file of the 5th Additional City Civil Judge, Bangalore City to reconsider the same in accordance with law and in terms of the indication made above. The parties are granted liberty to file their title documents before the trial Court which shall be made available to the Commissioner for the purpose of the measurement. Since, both the parties are represented by their counsel, they shall appear before the trial Court without further notice on 02.07.2012 as the first date for appearance. The trial Court shall thereafter secure the Commissioner's report and dispose of the matter as expeditiously as possible but not later than four months from the date of the first hearing. 17
15. The appeal is allowed in part. LCR be despatched forthwith. No costs.
Sd/-
JUDGE ST*