Karnataka High Court
Sri B Srikantaiah vs Sri Naganna on 6 January, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 06TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RSA No.32 OF 2009 (DEC/INJ)
BETWEEN:
SRI. B. SRIKANTAIAH
S/O LATE BORE GOWDA
AGED ABOUT 67 YEARS
R/AT DEVERASANAHALLI VILLAGE
KASABA HOBLI
NANJANAGUD TALUK
MYSORE DISTRICT.
... APPELLANT
(BY SRI.D.R. RAJASHEKHARAPPA, ADVOCATE)
(THROUGH VIDEO CONFERENCE)
AND:
SRI. NAGANNA
S/O LATE GADI HALE GOWDA
AGED ABOUT 60 YEARS
R/AT DEVERASANAHALLI VILLAGE
KASABA HOBLI
NANJANAGUD TALUK
MYSORE DISTRICT.
...RESPONDENT
(BY SRI. SHIVARUDRAPPA SHETKAR, ADVOCATE FOR
RESPONDENT)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED: 11.09.2008 PASSED IN R.A. NO. 33/2003 ON THE
FILE OF THE CIVIL JUDGE, (SR. DN.) & JMFC, NANJANGUD,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
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AND DECREE DATED: 16.06.2003 PASSED IN O.S.
NO.101/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
NANJANGUD.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.32/2009 is filed by the plaintiff aggrieved by the Judgment and Decree dated 11.09.2008 passed in R.A.No.33/2003 on the file of Civil Judge (Sr.Dn.) and JMFC at Nanjangud, (hereinafter referred to as 'First Appellate Court') filed by the plaintiff aggrieved by the Judgment and Decree dated 16.06.2003 passed in O.S.No.101/2002 on the file of Principal Judge (Jr.Dn.), Nanjangud, (hereinafter referred to as 'Trial Court') dismissing the suit of the plaintiff.
2. Case of the plaintiff in brief is that he is the owner in possession of the suit schedule property being a passage measuring east to west 40', north to south 4½ feet situated on the southern side of his house property. That the said passage exists between the property of the plaintiff and the property of the defendant. That when the plaintiff desired to put up a window on the southern 3 wall of his house property, the defendant illegally obstructed for the same. Defendant thereafter constructed a residential house on his property without leaving any set-back and has fixed a window on the northern wall of his property, i.e., towards southern side of the plaintiff's property. Plaintiff further contended that the said passage/vacant space existing on the southern side of his house belonged to him and the defendant had no right over the said space. Thus, the plaintiff sought for a decree of declaration declaring him to be the owner of the suit schedule property being the passage measuring 40' x 4½' and also for a consequential relief of permanent injunction restraining defendant from fixing any window on the wall of his house abutting the southern passage to the suit schedule property.
3. Defendant in his written statement denied the case of the plaintiff including the claim of the plaintiff with regard to his ownership over the suit schedule property. The defendant further claimed that the said passage belongs to him. The obstruction as alleged by the 4 plaintiff is also denied. The defendant further pleaded that if the plaintiff wants to open a window on the southern wall of his house, he can do so by demolishing the existing wall and constructing a new wall by leaving 3' of set-back. The defendant further specifically claimed that he purchased the house property measuring East to West 22.5', north to south 22.5' from one Sri.Ramappa through a registered sale deed dated 01.02.1985 and subsequently, purchased old country-tiled house with vacant site in terms of a registered sale deed dated 16.03.1989 from one Ramakrishna which measures east to west 20', north to south 22'. Thus, according to him these two houses are adjacent to each other bounded on the north by house of the plaintiff (formerly house of one Siddamma). It is the further case of the defendant that subsequent to the purchase, he had given up his right over the area measuring east to west 30' and north to south 6.5' in favour of the plaintiff abutting plaintiff's house on the northern side as per the decision of Panchayath people in June 1985 and in turn, the plaintiff had given up his right in respect of right to way through 5 the house of Ramakrishna. It is further contended by the defendant that subsequently, plaintiff had constructed a new house with zinc sheet roof by utilizing 30' x 6.5' space and the said house has got gable roofing towards eastern side. Similarly the defendant has also demolished the old house and started construction of a new house by leaving 5.5' space towards northern side of his house. That when the construction had reached roof level, plaintiff had filed the present suit by making false allegations. Hence, sought for dismissal of the suit. The trial court based on the pleadings, framed the following issues for its consideration:
1) Whether the plaintiff proves the existence of the suit schedule passage?
2) Whether the plaintiff proves that he is the absolute owner of the suit schedule passage?
3) Whether the plaintiff proves the alleged interference by the defendant?
4) Whether the plaintiff is entitled for the relief of declaration as sought for?
5) Whether the plaintiff is entitled for the
consequential relief of permanent
injunction?
6) What order?
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4. Plaintiff examined himself as P.W.1 and
produced six documents marked as Exs.P1 to P6(a).
Defendant examined himself as DW.1 and marked three documents as Exs.D1 to D3. The trial court on appreciation of evidence made available by the parties, dismissed the suit of the plaintiff by its Judgment and Decree dated 16.06.2003. Aggrieved by the same, plaintiff preferred Regular Appeal No.23/2003 before the first appellate court. Considering the grounds urged by the plaintiff, the first appellate court framed following points for its consideration:
1. Whether the Plaintiff/appellant proves that he is absolute owner of the suit schedule passage and it is part and parcel of property bearing No.51/A and khata No.93 and he is in lawful possession of the same?
2. Whether the appellant/plaintiff proves that he is to be permitted to lead additional evidence and the matter is to be remanded back to the trial court?
3. Whether the appellant/plaintiff proves that the judgment and decree of the trial court are illegal, perverse, unsustainable and interference of this Court is required? 7
4. What Order or decree?
5. On re-appreciation of the material evidence, the first appellate court dismissed the appeal filed by the plaintiff. Aggrieved by the same, the plaintiff is before this Court by this regular second appeal. This Court, while admitting the aforesaid appeal, had formulated the following substantial questions of law by its order dated 16.09.2013:
" When the Courts below came to a conclusion that there is a passage in between the house of the plaintiff and the defendant and the plaintiff intended to put up a window on the southern wall of his house, whether the Courts below committed an illegality in rejecting the claim under misconception that suit is for injunction restraining defendant from opening a window in the wall of the house of the defendant?"
6. Sri.D.R.Rajashekharappa, learned counsel for the appellant fairly concedes that the plaintiff would not press his suit with regard to declaration of ownership over 8 the passage. Further, he submits that the plaintiff would restrict his suit to the extent of his right to put up a window on the southern wall of his house property facing the passage.
7. In furtherance to the aforesaid submission, learned counsel for the appellant drawing attention of this Court to paragraph 8 of the Judgment of the trial court as well as Paragraph 16 of the Judgment of the appellate court, submits that on factual analysis and appreciation of the material evidence and also on the basis of the deposition of the parties, the trial court and the first appellate court had decisively held the existence of the suit schedule property being passage between the plaintiff's property and the defendant's property. He further submits that the ownership with regard to the plaint schedule property has not been held either in favour of the plaintiff or in favour of the defendant. Such being the case, he submits that there was no impediment on the part of the trial court and the first appellate court in granting the equitable relief of injunction in favour of 9 the plaintiff restraining the defendant from obstructing the plaintiff from putting up a window on the southern wall of his property. He submits that this aspect of the matter gave rise to the substantial question of law which needs to be answered in favour of the plaintiff and thereby allowing the appeal.
8. Per contra, Sri.Shivarudrappa Shetkar, learned counsel for respondent submitted that the very existence of the plaint schedule property is in dispute. He further submitted that the plaintiff lately made an attempt by filing an application to produce additional document to establish existence of the passage which has been rightly declined by the trial court and the first appellate court. Drawing attention of this court to Paragraph 19 of the Judgment and Decree of the first appellate court, he submits that the first appellate court has extensively dealt with the contents of the Will dated 21.07.1980 sought to be produced by the plaintiff wherein there is no mention with regard to the existence of any passage. He further submits the reality as of this 10 date is that there is no existence of passage. As such, granting of equitable relief of injunction in favour of the plaintiff does not arise. Alternatively, he submits even assuming there is a passage existing between the plaintiff's property and defendant's property that alone would not give any right to the plaintiff to put up a window without plaintiff establishing his right over the same. Hence, he submits that there is no substantial question of law arising in the matter worth consideration. Consequently, seeks for dismissal of the appeal.
9. The suit filed by the plaintiff is for a declaration and consequential relief of injunction in respect of piece of land measuring east to west 40 feet, north to south 4½ feet which is described as plaint schedule property. That the plaintiff had initially made a claim of ownership over the same, has now given up his claim of ownership over the same as noted above. Therefore, the only question which requires consideration in the light of substantial question of law framed by this 11 court by its order dated 16.09.2013 is with regard to entitlement of plaintiff for equitable relief of injunction.
10. As rightly pointed out by the learned counsel for the appellant, the trial court at Paragraph 8 of its Judgment and first appellate court at Paragraph 16 of the Judgment have given following findings with regard to the existence of the passage which is extracted hereunder:
Paragraph 8 of judgment in OS No.101/2012:
8. But, as could be seen from the averments made by the parties to the suit in their pleadings and in the course of their evidence, both of them are admitting the existence of vacant space measuring 4½ feet North-South and 40 feet East-West in between the residential houses in their respective possession. This makes it clear that the existence of the vacant space which is a subject matter of this suit is admitted by both parties. But the defendant is denying the ownership of the plaintiff over the said space. As the burden of proving the above two issues are on the plaintiff, invariably the plaintiff shall lead positive evidence to prove his claim, whereas, as discussed above, the plaintiff has not produced any document of title to prove his ownership over the suit schedule property or any document to show that 1/3 portion of the residential house as shown in the Assessment Register Extract-
Ex.P1 is the southern 1/3 portion of the property bearing No.51/A. That being the case, although it can be held that the existence of the suit schedule passage is proved by the plaintiff, because of the admissions made by the defendant, it cannot be held that the plaintiff is the owner of the suit schedule passage".
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Paragraph 16 of the judgment in RA No.33/2013 "16. There is no dispute between the parties that the suit schedule house comprising in the property bearing No.51/A khata No.93, belongs to the plaintiff and there is property of the defendant towards southern side of the house of the plaintiff. So also, there is no dispute between the parties that there is open space measuring 4½ft X 40ft existing in between the houses of the plaintiff and the defendant. Though defendant has denied the existence of the said suit schedule passage, the defendant has clearly admitted during the course of his cross-examination that suit schedule passage is in existence and it measures East to West 40ft. The only question is as to whom the said suit schedule passage belongs. The plaintiff has filed the suit for declaration and permanent injunction and heavy burden is cast on the plaintiff to establish that the suit schedule passage belongs to him and it forms part and parcel of property No.51/A Khata No.93.
11. Thus, the aforesaid factual finding given by the trial court as well as the first appellate court leaves no room for any ambiguity with regard to the existence of the plaint schedule property being the passage. The plaintiff having given up his claim for the ownership of the passage and the defendant not claiming ownership over the said piece of land, as observed by the courts below, the said property belongs to none. In that view of the matter, the defendant may not be in any justification in obstructing or threatening to obstruct the plaintiff from 13 opening the window on the southern wall of his property as pleaded by the plaintiff. The defendant, who constructed his residential house subsequently has already opened a window on the northern wall of his property facing the passage. The question, therefore, is only with regard to requirement of a permission to the plaintiff in he opening the window on the southern side of his house property.
12. The courts below have apparently misconceived this aspect of the matter in opining that the plaintiff is obstructing the defendant from opening the window on the northern side of his house which aspect is factually incorrect and does not emanate from the material on record. In that view of the matter, the present appeal requires to be allowed answering the substantial question of law in favour of the plaintiff, however, with an observation that while the plaintiff would be entitled to open the window on the southern wall of his house property, he shall ensure that such opening of the window would not invade into the privacy 14 of the defendant. In other words, while opening of such window by the plaintiff on the southern wall of his house property, the plaintiff shall ensure that same shall not directly face the window of the defendant which is already opened by the defendant on the northern wall of his property. The plaintiff shall ensure the compliance of this observation while opening the window.
13. In the result, the following;
ORDER
i) The appeal in RSA No.32/2009 is partly allowed.
ii) Defendant is restrained from obstructing the plaintiff in opening the window on the southern wall of his property towards the plaint schedule property being the passage measuring east to west 40 feet and north to south 4½ feet.
15In the circumstances, parties to bear their own costs.
Sd/-
JUDGE bnv*