Karnataka High Court
Fakruddin Sab vs Abdul Hamid on 30 July, 2024
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NC: 2024:KHC:29999
RSA No. 999 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.999 OF 2015 (INJ)
BETWEEN:
FAKRUDDIN SAB
S/O RAJA SAB,
AGED ABOUT 81 YEARS,
OCC:BUSINESS, R/O SHIMOGA ROAD,
HARIHARA TALUK, HARIHARA,
DAVANAGERE DISTRICT - 577 601.
...APPELLANT
(BY SRI. KALEEMULLAH SHARIFF, ADVOCATE)
AND:
ABDUL HAMID
S/O RAJA SAB,
AGED 75 YEARS,
Digitally OCC:BUSINESS, SHIMOGA ROAD,
signed by R HARIHAR TALUK, HARIHARA,
DEEPA DAVANAGERE DISTRICT - 577 601
Location: ...RESPONDENT
HIGH
COURT OF THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
KARNATAKA THE JUDGMENT AND DECREE DATED 28.02.2015 PASSED IN
RA.NO.2/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AT
HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.12.2009 PASSED IN
OS.NO.48/2007 ON THE FILE OF THE PRL.CIVIL JUDGE
(JR.DN.) J.M.F.C HARIHARA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:29999
RSA No. 999 of 2015
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment and decree dated 28.02.2015 passed in R.A.No.02/2010 by the Senior Civil Judge at Harihar, confirming the judgment and decree dated 15.12.2009 passed in O.S.No.48/2006 by the Civil Judge (Jr. Dn.) and JMFC at Harihara.
2. The parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondent is the defendant. The plaintiff filed a suit for permanent injunction and also mandatory injunction directing the defendant to remove sajja which is attached to the north wall of the defendant.
3. Brief facts of the case are as under:
It is the case of the plaintiff that, the plaintiff and the defendant are the brothers. The suit schedule property -3- NC: 2024:KHC:29999 RSA No. 999 of 2015 was fallen to the share of the plaintiff by way of partition which took place between the plaintiff and the defendant. The residential property bearing No.23/24/25/26 situated in 'B' Division Harihara. The plaintiff is the owner of property at ABCDEFGH and the defendant is the owner of southern side abutting the suit property. Both the plaintiff and the defendant are in possession and enjoyment of their respective portion as owners. The plaintiff constructed a tiled roof house and with the mutual consent of the Gooleppa has constructed a common wall on the northern side. The plaintiff has also left 4 feet space passage shown by the letters STRU for ingress and egress between the property of himself and the defendant. It is contended that, the defendant had constructed a sajja on 2 feet on north south direction of the property which come above the plaintiff's property. As such is causing damage and nuisance to the plaintiff. Hence, the sajja of the defendant's building was filled with water and developed cracks and because of the water falling, there is a imminent danger of it falling down and also the rain water -4- NC: 2024:KHC:29999 RSA No. 999 of 2015 falls on the plaintiff's property. Hence, the plaintiff requested the defendant to remove the sajja which is attached to the northern wall of the defendant runs east west and also to close the water outlets erected on the northern side wall of the defendant. The defendant did not give any heed to the request of the plaintiff. Hence, cause of action arose for the plaintiff to file the suit for permanent and mandatory injunction.
4. The defendant filed the written statement contending that the plaintiff prior to filing of instant suit filed a suit for declaration and injunction in O.S. 127/1989. The said suit came to be dismissed and the plaintiff aggrieved by the judgment and decree passed in O.S.No.127/1989, preferred an appeal in R.A.No.307/2002. During the pendency of the said appeal, the plaintiff filed an application for withdrawal of the said appeal with a liberty to file a fresh suit. The first Appellate Court permitted the plaintiff to withdraw the said appeal. The defendant aggrieved by the order passed by the first -5- NC: 2024:KHC:29999 RSA No. 999 of 2015 Appellate Court withdrawing the appeal filed the writ petition in W.P.No.10787/2005 before this Court. The said writ petition came to be allowed and the appeal was restored. It is contended that, there is no existence of property as shown in the plaint sketch and the description of the property is not correct. Hence, prayed to dismiss the suit.
5. The trial Court, on the basis of the pleadings of the parties, framed the issues.
6. The plaintiff in order to substantiate his case examined himself as PW.1 and also examined two witnesses as PWs.2 and 3 and got marked documents as Exs.P1 to P4. The defendant has filed his affidavit in the form of examination-in-chief, but he did not appeared before the Court for cross-examination. Hence, his evidence was taken as closed. The trial Court after recording the evidence of the parties, after hearing on both sides and on assessment of oral and documentary -6- NC: 2024:KHC:29999 RSA No. 999 of 2015 evidence, answered issue Nos.1 to 3 in the negative and issue No.4 as per the final order. The suit of the plaintiff was dismissed with cost. The plaintiff aggrieved by the judgment and decree passed in O.S.No.48/2007 preferred an appeal in R.A.No.02/2010 on the file of Senior Civil Judge at Harihar.
7. The First Appellate Court, after hearing the parties, framed the points for consideration.
8. The First Appellate Court, on re-appreciating the oral and documentary evidence, answered point Nos.1, 2 and 4 in the negative, point No.3 in the affirmative and point No.5 as per the final order. Consequently, dismissed the appeal vide judgment dated 28.02.2015 confirming the judgment and decree passed by the trial Court.
9. The plaintiff aggrieved by the impugned judgments and decree passed by the Courts below, filed this regular second appeal.
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NC: 2024:KHC:29999 RSA No. 999 of 2015
10. Heard the learned counsel for the plaintiff.
11. Learned counsel for the plaintiff submits that the cause of action arose for the plaintiff to file the present suit and judgment passed in O.S.No.127/1989 has no impact on the present suit. The courts below have committed an error in dismissing the suit solely on the ground that the plaintiff has filed a suit for declaration and injunction. Hence, on these grounds, he prays to allow the appeal.
12. Heard and perused the records and considered the submissions of the learned counsel for the plaintiff.
13. It is not in dispute that the plaintiff has filed a comprehensive suit for relief of declaration and injunction in O.S.No.127/1989. The suit filed by the plaintiff was dismissed. The plaintiff aggrieved by the judgment and decree passed in O.S.No.127/1989, preferred an appeal in R.A.No.307/2002. Admittedly, during the pendency of the said appeal, the plaintiff has filed the present suit. The -8- NC: 2024:KHC:29999 RSA No. 999 of 2015 defendant has produced the decree passed in O.S.No.127/1989 marked as Ex.D1. From the perusal of Ex.D1, the trial Court held that the plaintiff is not the owner of the vacant portion as shown by the letters ABCD and declined to grant a relief of permanent injunction and also mandatory injunction. The plaintiff has already suffered a decree in O.S.No.127/1989 and during the pendency of the appeal, the plaintiff filed the present suit. If at all the plaintiff has any grievance, he ought to have filed an application in R.A.No.307/2002. But, on the contrary, he has filed a separate suit. Hence, the suit filed by the plaintiff is not maintainable during the pendency of R.A.No.307/2002. The trial court, considering the judgment passed in O.S. No. 127/1989, has rightly dismissed the suit. The first Appellate Court on re- appreciation of the evidence on record was justified in confirming the judgment and decree passed by the trial Court. Hence, I do not find any substantial question of law that arises for consideration in this appeal. This Court declined to admit the appeal.
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NC: 2024:KHC:29999 RSA No. 999 of 2015
14. In view of the aforesaid facts and circumstances, I proceed to pass the following:
ORDER The appeal is dismissed The judgments and decree passed by the Courts below are hereby confirmed.
No order as to the costs.
Sd/-
(ASHOK S.KINAGI) JUDGE SSB