Karnataka High Court
Smt. Sajeeda Begum W/O Mohd Aizaz ... vs Raheem Bee W/O Late Wahed Ali Hilapur And ... on 8 December, 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.200021/2014 (DEC)
BETWEEN:
SMT. SAJEEDA BEGUM
W/O MOHD AIJAZ LASKARI
AGED ABOUT 40 YEARS
OCC: HOUSEHOLD
THROUGH HER POWER OF
ATTORNEY HOLDER
AIJAZ S/O MASTAN LASKARI
AGED ABOUT 41 YEARS
OCC: CENTERING WORK
R/O NOORKHAN AKHADA
HUMNABAD TOWN PROPER
TQ. HUMNABAD
DIST. BIDAR - 585401
... APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
1. RAHEEM BEE
W/O LATE WAHED ALI HILAPUR
DEAD BY LR.S
(AMENDED AS PER COURT ORDER
DATED 1.12.2022
RESPONDENTS NO.2 TO 7 ARE
2
TREATED AS LRS. OF DECEASED
RESPONDENT NO.1
2. SOFIYA BEGUM
W/O MOHD HASSAN TAILOR
AGED ABOUT 66 YEARS
OCC: HOUSEHOLD
R/O OPPOSITE TO PWD OFFICE
BAMANAWADA VILA
PARAL AT BOMBAY CITY
PROPER (MS)- 400001
3. KHUTBUDDIN
S/O LATE WAHEED ALI HILAPUR
AGED ABOUT 63 YEARS
OCC: CONDUCTOR
IN NEKRTC R/O INDIRA NAGAR
POST KUSTGI
DIST. KOPPAL-583231.
4. SHOUKAT BANU
W/O MOHD ISMAIL
AGED ABOUT 59 YEARS
OCC: HOUSEHOLD
R/O HOUSE NO.18-13-8/A/18
BEHIND ROYAL SEE HOTEL
BALLGUDA
AT HYDRABAD CITY (AP)-500001.
5. KHAYANODDIN
S/O LATE WAHEED ALI HILAPUR
AGED ABOUT 57 YEARS
OCC: MECHANIC IN NEKRTC
AT BI BI GALLI TOWN HUMNABAD PROPER
TQ. HUMNABAD
DIST. BIDAR - 585401.
6. NAYEEMODDIN
S/O LATE WAHEED ALI HILAPUR
3
AGED ABOUT 51 YEARS
OCC: DRIVER
R/O BI BI GALLI TOWN
HUMNABAD PROPER
TQ. HUMNABAD
DIST. BIDAR-585401.
7. GOUSIYA BEGUM
W/O MOHD SALEEM
AGED ABOUT 45 YEARS
OCC: HOUSEHOLD
R/O H.NO.18-8-223/94/6
RIYASAT NAGAR
PHISALBANDA POST SAIDABAD,
HYDRABAD CITY (AP)-500001.
... RESPONDENTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE FOR C/R3;
R2, R4 TO R7 ARE SERVED;
V/O DATED 01.12.2022, R2 TO R7 ARE LR'S OF
DECEASED R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE PASSED IN R.A.
OLD NO.20/2009 NEW NO.171/2011 DATED 10.12.2013
ON THE FILE OF THE SENIOR CIVIL JUDGE AT HUMNABAD
AND THE JUDGMENT AND DECREE PASSED IN
O.S.NO.12/2006 DATED 3.6.2009 ON THE FILE OF THE
ADDL. CIVIL JUDGE (JR.DN) AND JMFC, HUMNABAD, BY
ALLOWING THIS APPEAL AND DISMISS THE SUIT.
THIS RSA IS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This captioned second appeal is filed by the unsuccessful defendants feeling aggrieved by the 4 concurrent judgments and decrees of the Courts below, wherein plaintiffs suit seeking relief of declaration, mandatory injunction and for consequential relief of injunction is decreed by both the Courts thereby declaring plaintiff as absolute owner and consequently, mandatory injunction is granted directing the defendant to demolish the illegal construction made at point 'BE'.
2. For the sake of convenience, the parties are referred to as per their ranks before the trial Court.
3. The plaintiffs instituted a suit for declaration and mandatory injunction. The plaintiffs claim that they are the owners of the house bearing TMC No.14-43. The plaintiffs further specifically pleaded that they have constructed a residential house and they are in exclusive possession. By 5 furnishing a hand sketch map along with plaint, the plaintiffs narrated the location of properties held by the plaintiffs and defendant. The plaintiffs claim that 'AB' wall on the Western side of their residential house is their exclusive wall. The plaintiffs further contended that there is 3 ft. open space between plaintiffs' and defendant's vendor properties. The plaintiffs asserted exclusive ownership over 'AB' wall by placing reliance on an agreement entered into between the plaintiffs and defendant. The plaintiffs contended that the defendant entered into an agreement on 05.04.1998 and in terms of the said agreement, the defendant's vendor agreed to bear the expenses to construct 'AB' wall. The plaintiffs further contended that the defendant's vendor agreed to contribute the expenses within three years, failing which, he agreed that 'AB' wall has to be treated as exclusive wall of plaintiffs. The defendant's vendor further agreed that in the 6 vacant plot if he puts up construction, on the Western side of the plaintiffs wall, he will leave 3 ft. common space.
4. The present suit is filed by plaintiffs alleging that in gross violation of the agreement entered between the plaintiffs and defendant's vendor, the defendant has illegally constructed a wall at 'BE' point and further he has also illegally constructed a building thereby blocking drainage situated towards Western side of defendant's property and hence, the present suit.
5. The defendant on receipt of summons tendered appearance and contested the proceedings and filed written statement and stoutly denied the entire averments made in the plant. The defendant stoutly denied existence of 3 ft. common space between plaintiffs' and defendant's property. The 7 defendant further contended that the alleged sale deed executed in favour of the plaintiffs does not depict and indicate existence of 3 ft. open space and therefore, seriously disputed written agreement between plaintiffs and Wahed Ali and Rafeeq Ahmed i.e., defendant's vendor.
6. The plaintiffs and defendant have led oral and documentary evidence to substantiate their respective claims.
7. During the pendency of the suit, the Commissioner was appointed who in terms of memo of instructions carried out spot inspection and submitted his report which was marked as Ex.C1. He has also furnished a map which is marked as Ex.C2 and he is examined as CW.1.
8. The trial Court having examined the oral and documentary evidence answered issue Nos.1 to 3 8 in the affirmative. The trial Court held that the plaintiffs have succeeded in proving their ownership over the residential house. The trial Court also held that the plaintiffs have succeeded in proving existence of common space which is shown in yellow colour situated between plaintiffs' and defendant's properties. Insofar as the green portion shown in the sketch, the trial Court having referred to the evidence let in by the plaintiffs coupled with Commissioner report also held that the construction put up by the defendant in his property is by encroaching over drainage and therefore held that it is also liable to be removed. The trial Court referring to agreement vide Ex.P9 also held that the agreement binds the defendant. Referring to the said document, the trial Court also held that the suit 'AB' wall is exclusive wall of the plaintiffs on account of defendant's vendor having failed to contribute the expenses towards 9 construction of said wall. On these set of reasonings, the trial Court decreed the suit.
9. Feeling aggrieved by the judgment and decree of the trial Court, the defendant preferred an appeal before the appellate Court. The appellate Court being a final fact finding authority has independently assessed the oral and documentary evidence. Having independently assessed the entire material on record, the appellate Court held that the plaintiffs have succeeded in proving the agreement vide Ex.P9. Referring to the agreement, the appellate Court also held that existence of 3 ft. common space and alleged construction by the defendant at point 'BE' and further illegal construction made in defendant's plot was also found to be illegal, thereby concurred with the reasons and findings recorded by the trial Court. The appellate Court proceeded to dismiss the 10 appeal. These concurrent findings are under challenge by the defendant.
10. Heard learned counsel appearing for the appellant/defendant and learned counsel appearing for the respondents/plaintiffs. Perused the concurrent findings recorded by the Courts below.
11. The plaintiffs are seeking relief of mandatory injunction alleging that defendant by taking undue advantage of an interim order of injunction granted in a suit for bare injunction bearing O.S.No.99/2005, the defendant has made construction in his plot by encroaching over drainage. The evidence let in by the plaintiffs coupled with Commissioner report clearly indicate the illegal construction made in the defendant's plot. Both the Courts have concurrently held that the construction made which is shown in colour green is held to be 11 proved by the plaintiffs. Therefore, both the Courts granted relief of mandatory injunction directing the defendant to demolish the illegal construction effected at point 'BE'.
12. Insofar as dispute relating to the Western wall of plaintiffs' property, the plaintiffs claim that this 'AB' wall is their exclusive wall while defendant claims that it is a common wall. To counter the defendant's claim, the plaintiffs relied upon agreement vide Ex.P9. Both the Courts referring to Ex.P9 coupled with oral evidence of PWs.2 to 5 have recorded a categorical finding that the plaintiffs have succeeded in proving that this 'AB' wall is their exclusive wall. Under the agreement, the defendant's vendor agreed that he would contribute equally for construction and therefore, under the assurance, the plaintiffs invested money and have constructed 'AB' wall. Under the agreement, it was agreed that if the defendant failed 12 to pay the expenses borne out by the plaintiffs within three year, then the said 'AB' wall has to be treated as exclusive wall of the plaintiffs.
13. Referring to the recitals in the agreement coupled with oral evidence, both the Courts held that the plaintiffs have succeeded in proving this agreement. Both the Courts have concurrently held that there is absolutely no rebuttal evidence to discard Ex.P9 - agreement. Therefore, the construction made at point 'BE' thereby blocking 3 ft. common space was also found to be illegal. It is in this background, both the Courts have concurrently held that illegal construction made at point 'BE' has to be removed. Both the Courts proceeded to decree the suit declaring that the plaintiffs are exclusive owners of 'AB' wall and both the Courts have granted relief of mandatory injunction to remove construction made at point 'BE'. These concurrent findings are based on legal evidence 13 let in by the plaintiffs and in the absence of rebuttal evidence. This Court would also find that the defendant taking undue advantage of an interim injunction in his favour granted in O.S.No.99/2005 has put up construction. It is also borne out from the records that after having completed the construction, the defendant has withdrawn the suit. All these aspects are dealt with by both the Courts. Therefore, no substantial question of law arises for consideration.
14. At this juncture, learned counsel for the appellant/defendant submits that the present defendant has infact sold his property to the plaintiffs. If that is so, then no prejudice has caused to the defendant if he has already sold his property, which is adjoining to the plaintiffs' property.
15. For the foregoing reasons, I proceed to pass the following:
14
ORDER The second appeal is dismissed.
Sd/-
JUDGE NBM/Srt