Mahadev S/O Hanumantsa Jituri vs Yenkusa M Miskin
2022 Latest Caselaw 2141 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 10TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                   RSA.NO.5149/2013 (INJ)
BETWEEN

SRI.MAHADEV S/O HANUMANTSA JITURI
AGE 64 YRS, OCC:BUSINESS
R/O VITTAL PETH, NEAR
CHANNAPETH, OLD HUBLI, HUBLI
                                                ... APPELLANT
(BY SRI.PRAKASH K.JAWALKAR, ADV.)

AND

1.    YENKUSA M MISKIN
      SINCE DECEASED BY HIS LRS

      SMT.KASTURBAI W/O YANKUSA
      MISKIN, AGE 69 YEARS, OCC:HOUSEHOLD,
      R/O HANAGI ONI, CHANNAPETH, OLD HUBLI, HUBLI.

2.    SMT.GEETABAI W/O DEVENDRASA MISKIN
      AGE 40 YEARS, OCC:HOUSEHOLD
      R/O HANAGI ONI, HUBLI

3.    SRI.ANIL S/O YANKUSA MISKIN
      AGE 42 YEARS, OCC:BUSINESS,
      R/O HANAGI ONI, CHANNAPETH, OLD HUBLI, HUBLI

4.    SRI.SURESH S/O YANKUSA MISKIN
      AGE 36 YEARS, OCC:BUSINESS,
      R/O HANAGI ONI, CHANNAPETH, OLD HUBLI, HUBLI

5.    SRI.SUNIL S/O YANKUSA MISKIN
      AGE 34 YEARS, OCC:BUSINESS,
                               2




       R/O HANAGI ONI, CHANNAPETH
       OLD HUBLI, HUBLI

6.     SMT.SULOCHANABAI W/O HANUMANTHSA PAWAR
       AGE 53 YRS, OCC:HOUSEHOLD
       R/O MUKTI NAGAR, LAXMESHWAR.

7.     SMT.SUSHILABAI W/O SOMNAHSA LADWA
       AGE 36 YRS, OCC:BUSINESS,
       R/O IBATTI ONI, RANEBENNUR

8.     SMT.MEERABAI W/O AMBASA PAWAR
       AGE 36 YRS, OCC:BUSINESS,
       R/O IBATTI ONI, RANEBENNUR

9.     SMT.HEERABAI W/O VISHNU HABIIB
       AGE 39 YRS, OCC:BUSINESS,
       R/O NEKARNAGAR, OLD HUBLI, HUBLI

10 .   SMT.HEMA W/O HANUMANTHSA JITURI
       AGE 36 YRS, OCC:BUSINESS,
       R/O NARAYANA SOFA, OLD HUBLI, HUBLI

11 .   SRI.MANJUNATH S/O DEVENDRASA MISKIN
       AGE 36 YRS, OCC:BUSINESS,
       R/O HANAGI ONI, CHANNAPETH,
       OLD HUBLI, HUBLI
                                              ... RESPONDENTS

(BY SRI.DINESH M.KULKARNI, ADV. FOR R2 TO R6 & R8 TO R10,
R7 & R11 ARE SERVED; R2 TO R11 ARE LRS OF DECEASED R1)

      THIS APPEAL IS FILED UNDER U/S.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:31.10.2012 PASSED IN R.A.NO.187/2009
ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT - II,
DHARWAD SITTING AT HUBLI, ALLOWING THE APPEAL, FILED
AGAINST THE JUDGMENT AND DECREE DTD:20.10.2001 AND THE
DECREE PASSED IN O.S. NO.107/1997 ON THE FILE OF THE II ADDL.
CIVIL JUDGE (JR.DN.) AND JMFC - III COURT, HUBLI, PARTLY
DECREEING THE SUIT FILED FOR PERMANENT AND MANDATORY
INJUNCTION.
                                   3




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

                              JUDGMENT

The captioned regular second appeal is filed by the

plaintiff questioning the divergent finding recorded by the

courts below.

2. Brief facts of the case are that:

Appellant/plaintiff filed suit in O.S.No.107/1997

seeking relief of mandatory injunction. The

appellant/plaintiff specifically contended in the plaint that

respondents/defendants have put up a fence at point 'PQ'

as shown in the hand sketch map. The appellant/plaintiff

during the pendency of the suit contended that at point

'PQ', respondents/defendants have illegally put up a

compound in place of fence and therefore, by way of

amendment sought mandatory injunction.

3. It is specific case of appellant/plaintiff that he is

the owner of the suit property bearing CTS No.260/1 and

CTS No.260/1B. Appellant/plaintiff contends that

respondents/defendants are adjacent owners towards

eastern side of the property bearing CTS No.260/1 and

260/1B. Appellant/plaintiff claim right and title over both

these properties i.e., CTS Nos.260/1 and 260/1B. The

defendants' property which is situated towards the west of

CTS No.261 and towards the west of CTS No.260/1B is

owned by respondents/defendants and in the hand sketch

map, the appellant/plaintiff has specifically shown that the

property owned by respondents/defendants on the western

side of CTS No.261 and 260/1B bears CTS No.260/1B. The

appellant/plaintiff has contended that

respondents/defendants have put up construction in CTS

No.260/1B and both the constructions are referred as

'ABCD' portion and 'KLMN' portion. On these set of

grounds, the present suit came to be filed.

4. The said suit was contested by the

respondents/defendants. The trial court having assessed

oral and documentary evidence decreed the suit of the

appellant/plaintiff by placing reliance on a photograph

produced as per Ex.P9 and thereby granted mandatory

injunction directing the respondents/defendants to remove

the structures as depicted in the photograph vide Ex.P9.

However, the relief of mandatory injunction which was

sought in respect of illegal structures at 'ABCD' and 'KLMN',

the same was rejected on the ground that

appellant/plaintiff has succeeded in the connected suit filed

in O.S.No.146/1997 where the court has already directed

defendants to demolish 'ABCD' portion and 'KLMN' portion

in O.S.No.146/1997.

5. Feeling aggrieved by the judgment and decree

of the trial court, the respondents/defendants preferred an

appeal before the first appellate court. The first appellate

court having independently assessed oral and documentary

evidence has come to the conclusion that judgment and

decree of the trial court in holding that

respondents/defendants have illegally encroached and put

up construction in the property owned by appellant/plaintiff

is perverse and the same is contrary to the lis decided by

the court in the connected suit bearing O.S.No.146/1997.

The first appellate court having referred to the rebuttal

documentary evidence vide Exs.D3 and D4 has recorded a

categorical finding that in O.S.No.146/1997, the survey

report was part of the records vide Exs.D3 and D4, in the

said document the Court Commissioner has clearly

reflected the existing building and this survey was found to

be done in 1995. The first appellate court having

meticulously examining the map found that there were only

three structures situated in the suit property shown by

letters 'ABCD', Roman V and a structure measuring 3 feet 9

inches x 13 feet 10 inches shown by letters 'F'.

6. The first appellate court having meticulously

examined the records has taken judicial note of the fact

that appellant/plaintiff during the pendency of the suit

alleged that the respondents/defendants have constructed

a building. The first appellate court meticulously examined

the prayer made in O.S.No.107/1997 and the prayer that

was sought in O.S.No.146/1997. In both the suits, the

subject matters are CTS No.260 and 261/1B. The first

appellate court having perused the prayers has recorded a

categorical finding that O.S.No.146/1997 which was a

subsequent suit was infact a comprehensive suit and the

court having examined rival contentions has already

decreed the suit filed by the appellant/plaintiff and thereby

relief of mandatory injunction was granted and the

structures shown Roman V in O.S.No.146/1997 which in

infact the portion 'KLMN' in the present suit was ordered to

be demolished. The respondents/defendants in terms of

mandatory injunction have removed the structures at

'KLMN'. The structure at 'ABCD' is also removed and there

is no dispute. There is also no dispute at point 'PQ' portion

which was a fence and the same was referred as 'AB'

portion in the earlier suit bearing O.S.No.146/1997 was

also ordered to be removed. Therefore, the appellate court

was of the view that when the first suit in O.S.No.361/1994

was filed, the 'PQ' portion was a wooden fence and during

the pendency of the said suit and in the present suit in

O.S.No.107/1997, the said wooden fence was replaced by

construction of a fresh compound wall made up of bricks

and cement. Therefore, the first appellate court found that

judgment in O.S.No.146/1997, the building with cement

and bricks was already brought to the notice of the court in

O.S.No.146/1997 and therefore, it was partly decreed. All

these minute details are not taken into consideration by

the trial court and it is in this background, the first

appellate court has recorded a categorical finding that

there is total misreading of evidence on record. The first

appellate court has come to the conclusion that

appellant/plaintiff has succeeded in securing the possession

of the portion which was alleged to have been encroached

by the respondents/defendants in the subsequent suit

bearing O.S.No.146/1997. On these set of reasoning, the

first appellate court proceeded to allow the appeal and

consequentially dismissed the suit filed by the

appellant/plaintiff. It is against this divergent finding, the

appellant/plaintiff is before this court.

7. Heard the learned counsel appearing for the

appellant/plaintiff, learned counsel for

respondents/defendants and perused the judgment and

decree under challenge.

8. On perusal of the materials on record, this court

would find that there is lot of ambiguity and confusion in

regard to the claim made by appellant/plaintiff. The first

suit that came to be filed by the appellant/plaintiff was

O.S.No.361/1994. In O.S.No.361/1994, the

appellant/plaintiff had only alleged that

respondents/defendants have illegally put up a wooden

fence at 'PQ' portion in CTS No.261. During the pendency

of O.S.No.361/1994, the appellant/plaintiff filed one more

suit in O.S.No.107/1997 by alleging that

respondents/defendants have put up construction in CTS

No.260/1B and the alleged constructions are shown at

'ABCD' portion and 'KLMN' portion.

9. The third suit which came to be filed by the

appellant/plaintiff is O.S.No.146/1997. This

O.S.No.146/1997 came to be filed by appellant/plaintiff

and the cause of action indicating in the suit present suit is

that the fence at 'PQ' portion is CTS No.261 was replaced

by constructing a compound wall made up of bricks and

cement. Therefore, O.S.No.146/1997 came to be filed

seeking mandatory injunction to demolish the compound

wall at 'PQ' portion and also the structures at 'ABCD' and

'KLMN' which are already subject matter in

O.S.No.107/1997. The trial court having examined the rival

contentions in O.S.No.146/1997 decreed the suit thereby

calling upon the respondents/defendants to demolish the

compound wall at 'PQ' portion which was referred as 'AB' in

the earlier suit. The court directed respondents/defendants

by issuing mandatory injunction to remove the structures

at 'ABCD' portion and 'KLMN' portion. It is not in dispute

that pursuant to grant of mandatory injunction in

O.S.No.146/1997, all illegal structures have been removed

by respondents/defendants in compliance of mandatory

injunction granted in O.S.No.146/1997.

10. The peculiar facts and circumstances in the

present case on hand indicate that the earlier suit which

was pending in O.S.No.107/1997 was however prosecuted

by appellant/plaintiff. Now pending suit in

O.S.No.107/1997, the appellant/plaintiff further pleaded

that respondents/defendants have again highhandedly

indulged in encroaching and have put up illegal

construction across 'PQ' line. It would be useful for this

court to cull-out paragraphs 6A, 6B and the relevant

additional prayer sought at 12(AA).

"Para 6A: During the pending of this suit the defendant has not only remoulded the existence fence at place "PQ" shown in the hand sketch but also constructed building on plaintiff's open space measuring 20' East West and 41' North South being the western portion of CTS No.260/1B of Ward V of Hubli city in compliance of the order of status quo of the

Hon'ble Court. Hence the structures illegally constructed on the plaintiff's property during the pendency of the suit are liable to be demolished by an order of mandatory injunction.

Para 6B: During the pendency of the suit the defendant has constructed illegally a building in plaintiff's property being the western portion of CTS No.260/1B of Ward No.V of Hubli City which measures 20' East West 41' North South which is also called as suit property. Hence, this property may be referred to as the suit property.

Additional para 12 (AA): The Defendant may be directed by an order of mandatory injunction to demolish the building constructed by the defendant during the pendency of this suit in the plaintiff's property, measuring 20' East-West, and 41' North-South being the western portion of CTS NO.260/1B of Ward No.V of Hubli City."

11. In O.S.No.107/1997, the original prayer at 'A' is

to restrain the respondents/defendants from putting up any

construction across 'PQ' line. Learned counsel appearing for

appellant/plaintiff while interpreting this prayer has

submitted that respondents/defendants have infact illegally

constructed a building beyond 'PQ' line. This submission

made by the learned counsel for the appellant/plaintiff

refers towards northern portion of 'PQ' boundary.

Therefore, what is argued before this court at this juncture

is that respondents/defendants have put up construction

towards northern side of 'PQ' line. It necessarily implies

that respondents/defendants have put up construction in

CTS No.261. This statement runs contrary to the amended

pleadings at para 6A and 6B. At para 6A and 6B, the

appellant/plaintiff claims that respondents/defendants have

put up construction in CTS No.260/1B. The

appellant/plaintiff has nowhere specifically stated that

respondents/defendants have again illegally encroached

and put up construction in CTS No.260/1B. The materials

on record would clearly indicate that appellant/plaintiff is

not sure as to where the alleged illegal construction is

made by respondents/defendants. Though by way of

amendment para 6A and 6B were incorporated and

consequential prayer at 12AA was also incorporated, to

substantiate the said claim, no specific evidence is let in by

the appellant/plaintiff.

12. Insofar as encroachment made by

respondents/defendants at 'PQ' portion and at portion

'ABCD' and 'KLMN' are concerned, it is not in dispute that

the appellant/plaintiff succeeded in subsequent suit bearing

O.S.No.146/1997 and in compliance of directions issued by

the court in O.S.No.146/1997, the respondents/defendants

have removed the structures.

13. Therefore, on meticulous examination of the

judgment and decree passed by the first appellate court,

this court is of the view that the first appellate court was

justified in allowing the appeal and consequentially

dismissing the suit filed by appellant/plaintiff. If the

encroached portion shown at Roman V as per Exs.P3 and

P4 and an area 'ABCH' and a compound wall erected at 'PQ'

are demolished and encroachments are removed, then I

am of the view that cause of action alleged and averred in

the present suit in O.S.No.107/1997 does not survive and

therefore, the first appellate court was justified in holding

that judgment and decree rendered in the subsequent suit

bearing O.S.No.146/1997 which was infact a

comprehensive suit would operate as res judicata. This

finding recorded by the first appellate court is based on

rebuttal evidence let in by the respondents/defendants.

14. In that view of the matter, no substantial

question of law arises for consideration in the present case

on hand. Accordingly, the appeal stands dismissed.

SD/-

JUDGE MBS/-