Document Fragment View
Fragment Information
Showing contexts for: common wall Window in Gurabasappa @ Appu vs Jayashree And Ors on 7 March, 2025Matching Fragments
(PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL) This petition is filed challenging the order dated 26.09.2022 passed in O.S.No.255/2011 by the IV Additional Civil Judge and JMFC-III, Vijayapura.
2. Sri. Shivakumar Kalloor, learned counsel for the petitioner submits that the petitioner is the plaintiff in the suit for declaration that the petitioner-plaintiff has got right to take air and light passing through the suit window 'W' peacefully without interruption as a easementary right and other reliefs. It is submitted that the respondent - defendant has filed the detailed written statement by denying that there is no window existing in the common wall between the two properties.
NC: 2025:KHC-K:1519
3. It is further submitted that even in the evidence, defendants are consistent with their stand that there is no window existing in the common wall which has necessitated the petitioner-plaintiff to file an application for appointment of Court Commissioner. However, the trial Court without considering the case properly has proceeded to reject the said application. It is also submitted that the trial Court has assigned only one reason, that the filing of an application is amounting to collection of evidence. The said finding of the trial Court is contrary to the settled principles of law. Hence, he seeks to allow the application by setting aside the impugned order.
NC: 2025:KHC-K:1519
7. It is the specific case of the petitioner-plaintiff that he has the right of easement through window claiming it to be in the common wall between the two properties i.e., CTS.Nos.129 and 127 which has been specifically denied by the defendant in the written statement at paragraph No.3. The evidence of the defendant is in consonance with the stand in the written statement. Ultimately, the issue is with regard to the existence or non existence of window in the common wall, is required to be ascertained by the trial Court to decide the lis between the parties. Such being the issue, I am of the considered view that the interest of justice would be met if the application filed by the petitioner is allowed by appointing the Court Commissioner, so that the report of the Court Commissioner would aid the trial Court in deciding the dispute between the parties in a better manner. It is always open for the respondent-defendant to object the report of the Commissioner, if it goes against him. Keeping these principles in mind, I pass the following: