Smt.Channabasappa S/O Mallappa ... vs Mallikarjun S/O Mallappa ...
2022 Latest Caselaw 1538 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 2ND DAY OF FEBRUARY 2022

                            BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 RSA.NO.100544/2019 (DEC-INJ)
BETWEEN

CHANNABASAPPA M.MULIMANI,
SINCE DECEASED BY HIS LRS

1(a)   SHRI.VEERESH S/O CHANNABSAPPA MULIMANI,
       AGE: 40 YEARS, OCC: AGRICUTURE,
       R/O NEHRUNAGAR, BYADGI,
       TQ.BYADGI, DIST: HAVERI-581110.

1(b)   LATA W/O IRAPPA SANKANNAVAR,
       AGE: 45 YEARS, OCC: HOUSEWIFE,
       R/O NEHRUNAGAR, BYADGI,
       TQ.BYADGI, DIST: HAVERI-581110.

1(c)   SUDHA W/O CHANNABASAPPA MULIMANI
       AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
       R/O NEHRUNAGAR, BYADGI,
       TQ.BYADGI, DIST: HAVERI-581110.

1(d)   SAVITA W/O RAVISHANKAR MALLADADHA
       AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
       R/O NEHRUNAGAR, BYADGI,
       TQ.BYADGI, DIST: HAVERI-581110.
                                                 ... APPELLANTS

(BY SRI.SANTOSH D.NARGUND, ADV.)

AND

MALLIKARJUN S/O MALLAPPA MULIMANI,
SINCE DECEAED BY HIS LRS
                               2




1(a)   VINOD S/O MALLIKARJUN MULIMANI,
       AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
       R/O NEHRUNAGAR, BYADGI,
       TQ.BYADGI, DIST: HAVERI-581110.

1(b)   SANTOSH S/O MALLIKARJUN MULIMANI,
       AGE: 43 YEARS, OCC: AGRICULTURE & BUSINESS,
       R/O NEHRUNAGAR, BYADGI,
       TQ.BYADGI, DIST: HAVERI-581110.

1(c)   DINESH S/O MALLIKARJUN MULIMANI,
       AGE: 41 YEARS, OCC: AGRICULTURE & BUSINESS,
       R/O NEHRUNAGAR, BYADGI,
       TQ.BYADGI, DIST: HAVERI-581110.

1(d)   SUPRITA W/O SANJAY KARJAGI,
       AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
       R/O VAGESHNAGAR, RANEBENNUR,
       TQ.RANEBENNUR, DIST: HAVERI-581110.

2.     BASAVANEPPA S/O MALLAPPA MULIMANI,
       SINCE DECEASED BY HIS LRS

2(a)   NEELAMMA W/O MANJUNATH MULIMANI,
       AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
       R/O BENNIHALLI,,TQ.HARAPANAHALI,
       DIST: DAVANAGERE

2(b)   MALLAPPA S/O BASAVANEPPA MULIMANI,
       AGE: 51 YEARS, OCC: AGRICULTURE,
       R/O NEHRUNAGAR, BYADGI,
       TQ.BYADGI, DIST: HAVERI-581110.

2(c)   SHARADHA W/O SURESH DARANEPPANAVAR,
       AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
       R/O CHIKKOUNSHI TQ.HANGAL,
       DIST: HAVERI-581110.

3.     SMT.MURIGEMMA W/O VEERABHADRAPPA MULIMANI,
       AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
       R/O NEHRUNAGAR, BYADGI,
       TQ.BYADGI, DIST: HAVERI-581110.
                               3




4.   SMT.MANJULA W/O SHANKARAGOUDA GOOLANAGOUDRA,
     AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
     R/O NEHRUNAGAR, BYADGI,
     TQ.BYADGI, DIST: HAVERI-581110.

5.   SMT.MAMATA W/O SHANKARGOUDA GOOLANAGOUDRA,
     AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
     R/O CHIKAKURUVATTI,
     TQ.RANEBENNUR, DIST: HAVERI-581110.

6.   SMT.SHOBHA W/O SHANKARAGOUDA GOOLANAGOUDRA,
     AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
     R/O CHITRA ROAD, BYADGI,
     TQ.BYADGI, DIST: HAVERI-581110.

7.   SMT.ROOPA W/O RUDRAPPA TALAMANI,
     AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
     R/O NEHRUNAGAR, BYADGI,
     TQ.BYADGI, DIST: HAVERI-581110.

8.   SMT.GEETHA W/O SOMASHEKAR SANKANNAVAR,
     AGE: 38 YEARS, R/O NEHRUNAGAR, BYADGI,
     TQ.BYADGI, DIST: HAVERI-581110.

9.   SMT.BASAMMA W/O GANGADHAR MULIMANI,
     AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
     R/O NEHRUNAGAR, BYADGI,
     TQ.BYADGI, DIST: HAVERI-581110.
     NOW AT C/O REVANASHIDDAPPA
     MUDDAPPALAVAR (SADIMANI) HALAGERI,
     TQ.RANEBENNUR, DIST: HAVERI.
     (DELETED)
                                             ... RESPONDENTS
(BY SRI.M.H.PATIL & SRI.HARSHWARDHAN M.PATIL, &
S.A.AKALWADI, ADVS. FOR R1(a-d),
R2(a)-R2(c), R3 TO R8 SERVED UNREPRESENTED,
R9 DELETED V/O/D 01.02.2021)

      THIS APPEAL IS FILED UNDER SECTION 100 R/W ORDER 41
RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 01.04.2015 IN R.A.NO.21/2011 PASSED BY THE SENIOR CIVIL
JUDGE, IT COURT, BYADAGI AND JUDGMETN AND DECREE DATED
07.09.2011 PASSED BY THE CIVIL JUDGE & JMFC, BYADGI IN
O.S.NO.76/2004.
                               4




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

The captioned second appeal is filed by defendants

questioning the divergent judgments rendered by courts

below.

2. Facts leading to the case are as under:

Respondent/plaintiff filed a suit for declaration and

consequential relief of injunction as well as mandatory

injunction to declare that the portion 'ABCD' shown in the

sketch was kept common and in the said common space,

there is a road/common passage which connects the main

road from their respective hissas. Respondent/plaintiff

further contended that plaintiff and defendants are family

members and there was a partition in the family and the

respective shares allotted to plaintiff and defendants was

depicted in the plaint sketch by specifically contending that

in terms of their allotment of shares they are in possession

and they have constructed residential houses in the said

property bearing No.306/4. The respondent/plaintiff

grievance is that 'ABCD' portion is kept joint and plaintiff is

entitled to have an access to the main road. It is also

contended that the present appellants/defendant Nos.1 and

2 are also using this common road in order to have access

to their respective properties. It is further specifically

contended that even prior to construction of house by

respondent/plaintiff, defendants and plaintiff were using

this common road. It is specifically pleaded in the plaint

that respondent/plaintiff has no alternate road except this

suit schedule common road. The grievance of

respondent/plaintiff is that defendant No.1 has

highhandedly tried to put up a construction in the common

passage which was kept common while effecting partition

in the family. When he forcibly tried to construct latrine,

the present suit for declaration was filed in O.S.No.76/..

3. During the pendency of the suit, it appears that

an amendment was sought seeking relief of mandatory

injunction by specifically alleging that defendant No.1 has

put up a toilet in the common passage highhandedly

without securing permission from the competent

authorities.

4. After receipt of summons, appellants appeared

and contested the proceedings and stoutly denied the

entire averments made in the plaint. Though the present

appellants have admitted their relationship with

respondent/plaintiff and also admitted that there was a

partition in the family and the ancestral property was

divided among the family members and that they are in

possession and enjoyment of their respective shares,

however contended and disputed the existence of suit

common road which was shown in the hand sketch map

annexed to the plaint. It was specifically denied that

plaintiff is using the alleged common road to reach their

property from Byadagi-Motebennur road. The present

appellants have further stoutly denied that defendant No.1

has illegally constructed a latrine without obtaining

permission from the concerned Town Panchayat. It was

further specifically contended in the written statement that

the latrine is towards western side of the property which

has fallen to the share of plaintiff when they were in joint

family and therefore, it was contended that plaintiff and

defendants are both using the latrine as a common latrine

and this latrine was in existence much prior to partition

which was effected in 1988

5. The respondent/plaintiff to substantiate his

claim examined three witnesses as P.Ws.1 to 3 and relied

on documentary evidence vide Exs.P1 to P27. The present

appellants/defendants by way of rebuttal evidence

examined defendant No.1 as D.W.1 and relied on

documentary evidence vide Exs.D1 to D4. Pending suit a

Commissioner was also appointed to carryout local

inspection and submit a report and Commissioner report

was also placed on record. The trial court having assessed

oral and documentary evidence answered issue Nos.1 to 3

in the negative by holding that respondent/plaintiff has

failed to prove that he along with the present appellants is

joint owner and in possession of the suit 'ABCD' property

and further recorded a finding that plaintiff has failed to

prove the alleged obstruction by the present

appellants/defendants. The trial court having assessed the

oral and documentary evidence has come to the conclusion

that respondent/plaintiff has failed to prove the existence

suit schedule road and that he has got joint right to use the

suit road as alleged in the plaint. The trial court having

come to the conclusion that existence of suit schedule road

is not proved has further recorded a finding that the toilet

constructed by appellants/defendants is not situated within

the common passage which was kept joint. The trial court

has also come to the conclusion that respondent

No.1/plaintiff has a joint right over 20 feet common road

towards southern side corner of the property. On these set

of reasoning trial court has come to the conclusion that

relief of declaration cannot be granted as

respondent/plaintiff has failed to prove the existence of suit

road, consequently the trial court was of the view that no

injunction can be granted much less the relief of

mandatory injunction.

6. Feeling aggrieved by the judgment and decree

of the trial court, respondent/plaintiff preferred an appeal

before the first appellate court. The first appellate court

having independently assessed the evidence on record has

taken note of the appointment of the Commissioner in the

present case on hand. The Commissioner having visited the

spot and based on memo of instructions submitted by

plaintiff has submitted his report as per Ex.P5 along with

hand sketch as per Ex.P16. Appellate court having

meticulously examined these two documents has come to

the conclusion that toilet constructed by present appellants

was hardly prior to 5-6 months from the date on which the

commission work was carried out. Having perused the

Commissioner's report and other relevant materials, the

first appellate court found that this toilet is shown in the

middle of the common pathway. The first appellate court

also found that this Commissioner's report was not at all

seriously contested by the present appellants/defendants.

Infact appellate court found that on the contrary, the

present appellants submitted a memo stating that, they

have no objection to the Commissioner's report as per

Ex.P16. The first appellate court has also taken judicial

note of the fact that respondent/plaintiff to corroborate the

evidence has examined the Commissioner. The

Commissioner who is examined as P.W.3 has deposed in

terms of the commissioner's report. The first appellate

court has also taken note of the admissions given by P.W.2

in evidence that while defendants were highhandedly

constructing the toilet, the same was objected by

respondent No.1/plaintiff. On these set of reasoning, the

first appellate court has come to the conclusion that the

pathway which is depicted in the Commissioner's sketch is

kept common and plaintiff and defendants are jointly

entitled to the said suit road so that they can access to the

main road from their respective residential houses. The

first appellate court has also found that construction of

toilet at the instance of defendant Nos.1 to 3 was without

securing any permission from the authorities. Therefore,

the first appellate court was of the view that the judgment

rendered by the trial court in recording a finding that

existence of suit road is not proved is perverse and

contrary to evidence on record. The first appellate court

found that the trial court has not even taken pains to

examine the Commissioner's report, the sketch produced

therein and also the ocular evidence of the witnesses

examined by the plaintiff. It is in this background, the first

appellate court was of the view that the judgment and

decree of the trial court suffers from serious infirmities and

therefore, would warrant interference at the hands of the

first appellate court. On these set of reasoning, appeal is

allowed, consequently suit filed by the respondent/plaintiff

came to be decreed thereby directing the present appellant

No.1 to demolish the toilet shown at 'QRST' in the rough

sketch annexed with the plaint. Consequently, mandatory

injunction was granted directing defendant to demolish the

toilet. It is this judgment and decree of the first appellate

court which is questioned by the defendants.

7. Heard the learned counsel for the appellants and

perused the judgments under challenge.

8. It is not in dispute that the suit schedule

property was admittedly ancestral property. During trial,

both the parties have admitted that they have effected

partition in Sy.No.306/4 which was totally measuring 21

guntas. In the said partition, it is clearly admitted that 5

guntas 3 annas of open space was allotted to the share of

plaintiff and the said portion is marked by letters 'EFGH' in

the hand sketch map annexed to the suit plaint. 2 guntas

and 1 anna consisting of a house and a backyard and 1

gunta 8½ annas of open space allotted to the share of

appellant No.1. Similarly, 2 guntas consisting of house and

backyard and 1 gunta 9½ annas of open space was allotted

to the share of defendant No.3. It is also admitted that in

the partition, 3 guntas 8 annas of open space was kept

joint to utilize the same as a common road towards

southern and northern side of the properties which were

allotted to the share of plaintiff and defendants

respectively. The Commissioner's report and the sketch

which are placed on record clearly depict the existence of

suit passage. In the said report it is clearly indicated that

defendant No.1 has indulged in constructing a toilet in the

middle of the common passage and therefore, it clearly

established that when the passage was kept common,

appellants/defendants had no exclusive right to change the

nature of the common passage which was intended to be

kept joint so as to enable the family members to use the

said common suit road to have access to the main road.

9. The trial court at one breath has come to the

conclusion that common passage is kept intact and

defendant No.1 not constructed a toilet in the common

passage and the said common passage was in existence

much prior to the partition. These findings are palpably

erroneous in the absence of rebuttal evidence let in by the

present appellants/defendants. Though the Commissioner's

report cannot be totally relied on and it is not a conclusive

evidence, however, the fact that defendant No.1 has not

secured permission from the authorities to put up

construction would strengthen the case of the

respondent/plaintiff and would further probabilize that the

toilet is constructed by the appellants by encroaching upon

the common passage. When the location of the properties

and the existence of common suit passage is under

dispute, it is always better to have recourse to local

inspection. Some evidence can be gathered only by way of

local inspection. Therefore, in this background, the trial

court in fact was justified in securing local inspection. When

the Commissioner's report and sketch was available, the

trial court was required to examine the admissibility of the

Commissioner's report and the sketch produced therein,

more particularly, when appellants/defendants did not

object to the Commissioner's report. The first appellate

court being the final fact finding authority has meticulously

examined the material on record and has come to the

conclusion and has recorded categorical finding that the

judgment and decree of the trial court suffers from serious

perversity and the same is palpably erroneous. The first

appellate court has also found that the trial court has

virtually misread the evidence on record. Therefore, I am

of the view that the judgment and decree of the first

appellate court in granting relief of mandatory injunction in

favour of respondent/plaintiff is in accordance with law and

the findings arrived at is based on material available on

record. I do not find any infirmities and illegalities in the

judgment under challenge.

10. Therefore, no substantial question of law arises

for consideration in the present appeal. Accordingly, the

appeal stands dismissed.

SD/-

JUDGE MBS/-