Karnataka High Court
Chikkappa A/F Sham Joshi Guttal vs Beemsen S/O Anantacharya Varahamurthi on 6 June, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
IN THE HIGH COURT OF RARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 6 DAY OF JUNE 2012
BERG RE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
REGUECQND APPEALNO._2336 Ec INJ
BETWEEN:
CHINKAPPA
A/F SHAM JOSHI GUTTAL,
AGED ABOUT•• 65 YEARS,
RETIRED GOVERNMENT SERVANT,
R/AT RANEBENNUR TQ. AND
DIST: HAVERU58 I 115.
(CHIKXAPRA SINCE DECEASED BY
HIS LW'S
IA SLIT. LIV1ABI
Zt4T ZZ'L
AGE: 72 YEARI.:
LB SRIDHAR
S i
ACT;.: 45 YEARS:,
SlOTH ARE R/AT RACE:BENNCR TO. AND
1.1ST: HAVERI.
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R/AT KUNIDAGOL,
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6. KUMARI VEENA
D/O ANANTACHARYA
VARAHAMURTHI,
AGED ABOUT 25 YEARS,
R/AT RANEBENNUR TQ.,
DIST HAVERI581 115.
.. RESPONDENTS
(BY SRI. P K SANNINGAMMANAVAR,
MIS RAM BHATN AND SREEPADA
ASSOCIATES, ADV. FOR R. 1 TO R6)
THIS RSA IS FILED U/S 100 CPC
AGAINST THE
JUDGMENT AND DECREE DATED: 24.6.200
6 PASSED IN RA.NO.
38/2005 ON THE FILE OF THE ADDL.CW
IL JUDGE (SR.DN.),
RANEBENNUR, ALLOWING THE APPEAL AND
SETFING ASIDE
THE JUDGMENT AND DECREE DATED:2
2.2.2005 PASSED IN
OS.NO. 230/1997 ON THE FILE OF ThE
PRL.CWIL JUDGE
(JR.DN.) & I ADDL.JMFC, RANEBENNUR..
THIS RSA COMING ON FOR ADMISSION, THIS
COURT MADE THE FOLLOWING: DAY THE
JUDGMENT
Appellant instituted O.S.230/97 before the Prl.Civil Judge (Jr.Dn.) & I Addl. JMFC, Ran ebennur, arraigning the respondents as defendants to direct removal of the door and 3 windows and a lint el fixed on the common wall delineated with the alphabe ts ABCD in the hand sketch enclosed to the plaint by way of a mandatory injunction. Respondents entered appearance, resisted the suit by tiling written statement interalia denying the allegations and the han d sketch 4 appended to the plaint, while admitting the existence of the common wall. According to the 1t defendant, having obtained a valid building license and permission to put up a construction of a building, did so, between 4/1/1994 to 4/7/1994, whence the Town Municipal Council, Ranebennur, issued a show cause notice, resulting in instituting O.S.38/96 for declaration and injunction. Defendants assert that no construction was put up on the common wall but the wall erected was independent of and away from the common wall on which the windows, door and lintel were fixed on the first floor portion. In addition, it was stated that the building was a 14 pillar construction strictly in accordance with the sanctioned plan. Defendants enclosed a hand sketch to the written statement indicating the aforesaid construction. The Trial Court in the premise of pleadings of parties, framed 5 issues, two of which related to proof of the defendants having fixed 3 windows one door and a lintel on the common wall hcnn a U3( I) ii thE hand skctc map b 1 dirg p i t sut chcduk.prpc t) md 1 hc alter t c 'ciFt tI ft °fI ll4rdws ri do n- ifnnged U- t. plairtiff s right t njoj the uit schtdule property I he Parties entered trial hence the pamtiffws xuxnd sPW1 mndth (in Sun °or appomted i i Court Cominssioncr 41% txamiiedasPW2 and nrkcdFx' to P12 hlcth dt fendant as xam'ned is DW- and narke I fxDlt 1 rim th ig cgarc Fc n a d I dc 1,01 r r 1 c tcif C A I I. 6
2. That Judgment and decree when carried in R.A.38/05 before the Addl. Civil Judge (Sr.Dn.), Ranebennur, on a reappreciation of the material on record, more appropriately the report Ex.P7 of the Commissioner examined as PW-2, disclosing that the wail shown in the hand sketch appended to the report, delineated with alphabets IJKL was an independent wall at a distance of 4½ inches away the common wall ABCD in the plaintiff's hand sketch and did not infringe the rights of the plaintiff and accordingly reversed the Judgment and decree of the Trial Court, to dismiss the suit by Judgment and decree dt. 24/6/2006. Hence this second appeal by the plaintiff.
3. fleard the learned Counsel for the appellant, perused the pleadings and examined the Judgment and decree of the courts below.
4. The case of the plaintiff is that the 181 defendant put up construction of a first floor on the 1 cnmrnnr an 1 find aindrws dnnr rnd . linU hceo ringingt e ight 1 i øi ntitftc p acefuhy fl th 4 1 ci'! r p it P1 r if ircd h o in C mmissionr ore )ther thai' i rfficcr frnr th (in Surve a 1W 2 sshose report Ex P1 with the hand slat I disclosed tEa' th sail rat d tin 1' defenda t is a i tstance of r ches a s is from he. mmc n ss ill md t at thcs r dows doo and thc mtcl ' th t floo f tie blnldinL as aas from he r m i , 1 t asoc Ec nittcr Iougi L 1 6 3 1 1 1 c (5 1 8
5. The Lower Appellate Court cn a reap preciation of the material on record and the evidence, both oral and documentary, regard being had to the fa.ct that there was material to establish that the 1st defendant h.ad constructed a separate wail 4¼ inches away from the common wall, over which 3 windows, a door and a lintel was fixed on the first floor of the: building, disagreed with the finding of the Trial Court, The Lower Appellate Court noticed that the Commissicner when appointed for making local inspection of the suit prop erty, at the first instance submitted a report which when rejected, on the direction of the Court, the Commissioner once again made a local inspection ard submitted a report for the: second time on 30/11/2004. The Lower Appellate Court further noticed that the st defendant obtained permission, license and sanction of a building plan to put up the con struction by fixing 14 pillars ard leaving space of 4½ inche.s from the I mznnn 411 1'hv 1 n1er ppel1atv (ourt keeping in nind th fac tr a Ex P C. imissionc "c pox f Fit dtiloft Itti fU I1 c.rcc ted b U c 1 t defer darn ttd the existing omrnon ualI indic atrnu that nothinu had been put up on the omrn i wall t 'i the deft ndant 1 to sa the three windows loo indlinte ' xc nt fixed rU' mxrcr al ye sed the finding of the Trial Cour c 41 gI a ied 1 r tic ppel rt ubmit a ti-- r tucti a all y the 1 if d ' 'rc I C e g w I-I.' CD 'S. I 0 I! CD C) 0 It 2m Grb% L4' .0 3• 21 0 0