Kasturi W/O. Sadashiv Meti vs Kadappa S/O. Tippanna Payagond
2022 Latest Caselaw 2550 Kant

                              1                     R

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 16TH DAY OF FEBRUARY, 2022

                            BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 M.S.A.NO.537 OF 2013

BETWEEN:

1. SMT. KASTURI
W/O SADASHIV METI,
AGED ABOUT 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.

2. SRI. PRAKASH
S/O SADASHIV METI,
AGED ABOUT 23 YEARS,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.

3. KUMARI SHOBHA
D/O SADASHIV METI,
AGED ABOUT 21 YEARS,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.

4. SRI.SURESH
S/O SADASHIV METI,
AGED ABOUT 20 YEARS,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.

                                              ...APPELLANTS
                                2


(BY SRI.ANIL KALE & SRI.BASAVARAJ BYAKOD, ADVOCATES)


AND:


SRI. KADAPPA S/O TIPPANNA PAYAGOND,
AGED ABOUT 61 YEARS, OCC: COOLIE,
R/O JAGAD YALLAMMA GALLI,
JAMKHANDI.


                                             ...RESPONDENT

(BY SRI.K.L.PATIL, ADVOCATE)

       THIS MSA IS FILED U/O 43 RULE 1(U) OF CPC PRAYING TO

CALL FOR THE RECORDS, ALLOW THIS APEPAL AND SET ASIDE

THE JUDGMENT AND DECREE DATED: 31.01.2013 PASSED IN

R.A.NO.25/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST

TRACK COURT JAMAKHANDI AT JAMAKHANDI.


       THIS MSA HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 21.01.2022, COMING ON FOR PRONOUNCEMENT OF

JUDGMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
                                 3


                          JUDGMENT

The captioned miscellaneous second appeal is filed by

the appellants/defendants questioning the judgment and

decree dated 31.01.2013 passed by the Fast Track Court,

Jamakhandi, in R.A.No.25/2008 in remanding the matter to

the trial Court for fresh consideration.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

The controversy between the parties revolves around the

dispute in regard to "AB" wall of defendants. The sketch

would be relevant to understand the rival claim of defendants

and the plaintiff, which is extracted as under:

The plaintiff filed the suit for mandatory injunction and

also claimed perpetual injunction against the defendants. The

plaintiff claims to be owner of the property bearing CTS

No.3239A/3 and the same is shown by letters "ABEFG" shown

in the sketch. It is further contended that the defendants are

the owners of the house bearing No.3239A/4 which is referred

by the letters "BCDE" in the sketch. The husband of

defendant No.1 and father of defendants 2 and 3 namely

Sadashiv Meti though initially stopped the construction as

plaintiff lodged complaint before the TMC, Jamakhandi, the

defendants however highhandedly and illegally has put up a

beam on plaintiff's "AB" wall extending upto the point "H".

The plaintiff's contention is that the defendants have made

illegal construction without any permission from the TMC,

Jamakhandi. The plaintiff also contended that though he has

lodged complaint with TMC, the authority has not taken any

action to restore the original position. The plaintiff alleges that

defendants are highly influential persons and therefore,

apprehending that defendants may put up illegal construction

by encroaching the plaintiff's property has filed the suit

seeking relief of mandatory injunction and also consequential

relief of perpetual injunction.

In response to summons, the defendants tendered

appearance before the Court and filed written statement and

stoutly denied the entire averments made in the plaint. The

defendants specifically contended that northern wall is a joint

wall and the same is indicated in the sale deed of defendants

executed by the erstwhile owner namely Basappa Payagond

who is none other than the brother of the plaintiff. The

specific allegation that defendants have highhandedly

constructed beam on plaintiff's AB wall extending upto point

"H" is stoutly denied by the defendants and specifically

contended that "ABE" wall is a common wall of plaintiff and

defendants, which is of considerable length and width. The

defendants specifically contended that the common wall

measures 9 inch in width towards defendants' side and this

portion is demolished and the same is replaced by a brick wall.

Further, the RCC slab is constructed on the said brick wall

projecting 3 inches width sajja throughout the frontage.

Further, it is specifically contended that 9 inch width brick wall

is raised through out the length of "ABE" wall over which RCC

beam has been laid and the allegations made in the plaint are

frivolous and false. Therefore, the defendants requested to

dismiss the suit.

The plaintiff in support of his contention examined

himself as P.W.1 and adduced documentary evidence vide

Exs.P1 to P5. By way of rebuttal evidence, the defendants

examined defendant No.2 as D.W.1 and their vendor as D.W.2

and have produced rebuttal documentary evidence vide

Exs.D1 to 7.

The trial Court having assessed the oral and

documentary evidence has answered issue No.1 in the

negative by recording a categorical finding that plaintiff has

failed to prove that 'AB' wall is an exclusive wall. While

answering Issue Nos.2 and 3, the trial Court has also held that

the plaintiff has also failed to prove that defendants have put

up a beam on 'AB' wall and thereafter, constructed other

structure by encroaching over plaintiff's property at 'BH' point

on the southern side abutting to plaintiff's 'AB' wall. The trial

Court having meticulously examined the oral and documentary

evidence has recorded a categorical finding that "ABE" wall

which divides the plaintiff's and defendants' property is a

common wall between the plaintiff and his brother Basappa

who is examined as D.W.2. The trial Court has recorded a

categorical finding that "ABE" wall is in existence even prior to

partition. The trial Court was of the view in that Ex.D5, which

is the sale deed executed by D.W.2 in favour of defendants

would also indicate that "ABE" is a common wall. The trial

Court has also found in the cross-examination that "ABE" wall

is in a single line alignment and there was a partition between

the plaintiff and D.W.2 wherein "BCDE" portion was allotted to

defendants' vendor and "AEFG" portion was allotted to

plaintiff's share. It is in this background, trial Court has

arrived at a conclusion that there is absolutely no evidence to

demonstrate that 'AB' wall as shown in the sketch is the

exclusive wall of plaintiff. Therefore, the trial Court having

appreciated oral and documentary evidence proceeded to

dismiss the suit by holding that the plaintiff is not the

exclusive owner of "AB" wall and the construction made by

defendants is not illegal as alleged by plaintiff. On these

grounds, the trial Court was of the view that the plaintiff is not

entitled for the relief of mandatory injunction.

The plaintiff feeling aggrieved by the dismissal of the suit

preferred an appeal before the first appellate Court in

RFA.No.25/2008. The first appellate Court on re-appreciation

of oral and documentary evidence was of the view that the

trial Court has not properly appreciated oral and documentary

evidence and has hurriedly relying on the judgment cited by

the defendants has proceeded to dismiss the suit. The first

appellate Court was of the view that the extended construction

put up by defendants wherein the frontage of the plaintiff's

house, which is abutting the public road, appears to be

affected by this construction. The first appellate Court has

also found that the defendants are guilty of deviating from the

approved plan and having referred to Exs.D6 and D7 has come

to the conclusion that the defendants have not left 1 meter

distance as per the approved plan vide Exs.D7. The first

appellate Court has laid more emphasis on the fact that the

defendants have not placed any material on record to prove

that the act of putting up beam on the wall falls within the

ambit of negligible deviation and therefore, has come to the

conclusion that unless the TMC authorities and the Town

Planning Authorities conduct local inspection of the building

owned by plaintiff and defendants and ascertain whether the

construction made by defendants is within the permissible or

negligible deviation which would enable the defendants to

seek compounding of said deviation, the lis between the

parties cannot be effectively decided properly. It is in this

background, the first appellate Court has come to the

conclusion that the presence of TMC and Town Planning

Authority is very much necessary for effective adjudication of

the lis between the parties. The first appellate Court was of

the view that the trial Court ought to have taken recourse to

seek local inspection by a Civil Engineer to ascertain the

factual matrix in the present case on hand.

The first appellate Court on these set of reasoning has

come to the conclusion that the judgment and decree of the

trial Court is not at all sustainable and therefore, the first

appellate Court was of the view that trial Courts can arrive at

a proper conclusion only when there is a finding as to whether

there is a deviation and if at all there is deviation, whether it is

permissible within the permissible limits. Therefore, the first

appellate Court was of the view that the matter requires de-

novo trial and has accordingly proceeded to allow the appeal

and thereby set aside the judgment and decree of the trial

Court with a direction to the plaintiff to implead the Chief

Officer of TMC, Jamakhandi and the Secretary, Town Planning

Authority, Jamakhandi.

It is against this remand order, the defendants are

before this Court in this appeal.

4. The learned counsel appearing for the defendants

would take this Court through the sketch and vehemently

argue and contend that the judgment and decree of the first

appellate Court suffers from serious perversity and the same

is in contravention of the mandatory provisions of Order XLI

Rules 30 and 31 of CPC. He would further submit that the

actual lis between the parties was as to whether "AB" wall is a

common wall or is exclusively owned by the plaintiff. The

trial Court on appreciation of the oral and documentary

evidence has answered Issue No.1 in the negative and thereby

has held that the plaintiff has failed to prove that the "AB" wall

is the exclusive wall of plaintiff. This finding is not at all

reversed by the first appellate Court. He would submit that

the entire judgment does not indicate that the finding

recorded by the trial Court on Issue Nos.1 and 2 is set aside

by the first appellate Court. Therefore, he would submit that

without reversing the finding of the trial Court on Issue Nos.1

and 2, the conclusion arrived at by the first appellate Court on

a totally different footing was unwarranted and was beyond

the scope of enquiry in the present case on hand. He would

submit that the entire controversy would revolve on the nature

of the 'AB" wall. If the "AB" wall is held to be a common wall

then the question of encroachment, deviation would be of no

consequences. In the present case of hand, both the

properties are facing road. The plaintiff who has also put an

elevation on the front side cannot have a grievance against

the defendants who have also extended by putting up an

elevation at the portion BHIC and that the elevation would not

affect or interfere with the plaintiff's right of enjoyment over

his property. Secondly, he would submit that if the building is

not in accordance with law, then the adjoining owner has an

independent remedy. Under Section 187 (7)(1) of KMC Act,

any violation of building bye-laws has to be decided by a

competent authority under the provisions of the local Act.

Therefore, he would submit that the direction to implead the

TMC and Town Planning Authority was totally unwarranted and

by impleading, the first appellate Court has virtually embarked

upon encroaching over the power of authorities to deal with

constructions under the provisions of KMC Act. On these set

of grounds, he would submit that the remand order does not

satisfy the ingredients of Order XLI Rule 23 of CPC.

5. Per contra, learned counsel appearing for plaintiff

repelling the arguments canvassed by the learned counsel for

the defendants would submit to this Court that defendants

have put up construction by violating the building plan and

therefore, the presence of the authorities would enable the

Court to adjudicate the controversy between the parties

effectively and therefore, the remand order passed by the first

appellate Court is in accordance with law and does not warrant

any interference at the hands of this Court. He would further

contend that suit "AB" wall is the exclusive wall of the plaintiff

and the defendants have constructed their house by illegally

encroaching over the exclusive "AB" wall. He would also

submit that there are several admissions given by D.W.1 in

the cross-examination and the trial Court erred in ignoring

those categorical admissions and the first appellate Court

having re-appreciated the evidence on record was justified in

holding that the matter in controversy cannot be resolved

without having recourse to local inspection by appointing a

Court Commissioner. Therefore, the learned counsel for the

plaintiff submits that having regard to the nature of the

controversy between the parties, the remand was inevitable

and this aspect has been dealt by the first appellate Court and

the defendants have not brought to the notice of this Court

the illegalities or infirmities in the remand order passed by the

first appellate Court.

6. Heard the learned counsel for the defendants and

the learned counsel for the plaintiff.

7. The plaintiff's specific contention is that "AB" wall is

his exclusive wall. Admittedly, the entire block which is divided

by a common wall was originally owned by the plaintiff's

family. It has come in the evidence that the property bearing

No.3239A/3 was allotted to plaintiff's share and whereas the

property bearing 3239A/4 was allotted to the brother of

plaintiff namely Basappa Tippanna Payagond. What emerges

from this material aspect is both the properties are ancestral

properties of the plaintiff's family. The defendants' ancestor

has purchased property bearing CTS No.3239A/4. Plaintiff's

property bears sub-division "3" whereas the defendants

property bears sub-division "4". These significant details

clearly indicate that earlier the property bearing No.CTS

3239A was one compact block. Now on account of partition,

southern portion has fallen to the vendor's share of

defendants. Though plaintiff admits that "BE" wall is a

common wall, however, disputes that "AB" wall is not common

wall but it is his exclusive wall. The trial Court having

referred to the material on record has come to the conclusion

that "ABE" wall is a common wall. There is a categorical

finding by the trial Court that "ABE" wall is in single line

alignment. Plaintiff's claim that only "BE" portion of the wall is

common and while "AB" wall is his exclusive property. To

substantiate his claim, no documentary evidence is produced.

By way of rebuttal evidence, defendants have produced a copy

of the sale deed at Ex.D5 executed by D.W.2 who is none

other than the brother of plaintiff. The trial Court has referred

to the boundaries mentioned in Ex.D5-sale deed and having

gone through the recitals the trial Court has found that the

boundaries to the defendants' property towards northern side

is shown as a common wall.

8. If the plaintiff has admitted in cross-examination

that "ABE" wall is in single line alignment and when the said

fact is further corroborated by the recitals in the sale deed

executed by the brother of the plaintiff as per Ex.D5, the first

appellate Court being a final fact finding authority was

required to independently assess the ocular and documentary

evidence and also the pleadings. The first appellate Court was

also required to examine the sketch which is placed on record,

which is not in dispute. If the sketch is meticulously

examined and thereafter if the controversy between the

parties is looked into, it was bounden duty of appellate Court

to record its finding on the title of plaintiff over "AB" wall. On

meticulous examination of the reasons recorded by the first

appellate Court, this Court would find that the first appellate

Court has not at all reversed the findings of the trial Court

recorded on issue Nos.1 and 2. The question as to whether

"AB" wall is a common wall or is exclusively owned by the

plaintiff needs to be adjudicated first and thereafter, the

question as to whether the construction carried out by the

defendants by erecting a beam in his side of the common wall

would infringe the rights of the plaintiff would need further

adjudication. The first appellate Court's judgment is

absolutely silent insofar as the findings of the trial Court

recorded on Issue Nos.1 and 2.

9. If the reasons assigned and conclusions arrived at

by the first appellate Court are examined, I am of the view

that though the suit was contested on various issues and

parties were afforded full opportunity to lead evidence and

thereafte the trial Court has arrived at a conclusion having

referred to the evidence lead in by the plaintiff and rebuttal

evidence lead in by the defendants, the first appellate Court

has not assigned any reasons while setting aside the judgment

and decree of the trial Court. The first appellate Court's

judgment does not even mention as to on what grounds he

thought it fit to reverse the decree of the trial Court and

therefore, I am of the view that the remand order passed in

the present case on hand is illegal. The reversal is not a

matter of formality but of substance. The decree of trial Court

has to be set aside under each issue, since that is not done,

the order of the first appellate Court in setting aside the

decree and remanding the matter is liable to be set aside.

10. The first appellate Court without any sufficient

cause has ordered for re-trial and this could have been

possibly avoided. Remand is possible only when first appellate

court arrives at a finding that judgment of trial court is

erroneous and is liable to be reversed or set aside. To consider

remand, there has to be plea by appellant and then make out

a case of remand on facts. Section 107(2) of CPC does invest

the Appellate Court with some powers that are conferred on

Court on original jurisdiction. It is a trite law that it is a

bounden duty of the Appellate Court to see whether the

evidence taken as a whole can reasonably justify the

conclusion which the Trial Court arrived at or whether there is

an element of improbability arising through a number of

circumstances which in the opinion of the Court outweighs

such finding.

11. The first appellate Court has got carried away by

going into the controversy of deviation in regard to

construction done by the defendants. In a suit for mandatory

injunction, the Court is required to examine whether there is a

illegal construction by encroaching upon the plaintiff's

property. Therefore, the primary issue which was required to

be re-examined by the first appellate Court was whether 'AB'

wall is a common wall, when admittedly the substantial

portion of that wall which is referred as "BE" wall is admitted

by plaintiff that it is a common wall. If 'BE" portion of the wall

is a common wall then the burden is on the plaintiff to

establish that the same portion of the wall which is referred as

"AB" portion is his exclusive wall. The controversy in regard to

deviation in construction and violation of building plan falls

within the domain of the authorities under the Karnataka

Municipal Corporations Act. The violation of the building plan

has to be examined by the authority and the same cannot be

examined by a civil Court. The appellate Court has directed

the plaintiff to implead the local authorities to ascertain the

deviation. It is on this ground that the appellate Court has

ventured into setting aside the judgment and decree of the

trial Court.

12. This Court is of the view that the officials of the

Karnataka Municipal Authorities and Town Planning Authorities

are not at all necessary parties and their presence is not at all

required to effectively adjudicate the claim of plaintiff and

defendants over the common wall. The plaintiff is required to

establish his exclusive right over the "AB" wall. In the present

case on hand, the plaintiff is alleging that "AB" wall is his

exclusive wall and therefore, he is alleging that construction is

by encroaching upon his property. Secondly, it is also

contended that construction put up by the

appellants/defendants towards front portion of his property

facing road. Both the properties are facing road. As rightly

contended by the counsel for the appellants/defendants, the

authorities vested with power to examine any construction in

violation of the building bye-laws and there is a remedy under

Section 187(7)((b)(i)(ii) of the Karnataka Municipalities Act,

1964 and it is the Municipal Commissioner who is vested with

power, on satisfaction, to take any action against any

construction or erection of a building in contravention of

building bye-laws and this remedy available under Section

187(9)(a) of the Karnataka Municipalities Act, 1964. This

remedy is independent remedy and the same is available

under the provisions of Karnataka Municipalities Act, 1964.

The first appellate court by directing the respondent/plaintiff

to implead the officials of Karnataka Municipality authorities

and Town Planning authorities has virtually usurped over the

jurisdiction of authorities under the provisions of Karnataka

Municipalities Act, 1964. The issue relating to deviation of

construction and building in contravention of bye-laws has to

be independently examined by the officials and not by civil

court.

13. Section 9 of CPC provides that courts shall (subject

to the provisions contained therein), has jurisdiction to try all

suits of civil nature except suits in respect of which taking of

cognizance is expressly or impliedly barred. Thus, the

jurisdictional of civil courts embraces all disputes except to the

extent it is excluded by express provision of law or by clear

and unambiguous intendment arising from such law. Section

187 of Karnataka Municipalities Act, 1964 clearly amounts to

ouster of jurisdiction of civil court. The said Act is self-

contained code and provides an independent mechanism. In

Lalaram Swarup and Ors. Vs. Shikar Chand and Anr.1, a

1966 SC 893

Constitution Bench of Apex Court has formulated following

tests:

"The two tests, which are often considered relevant in dealing with the question about the exclusion of civil courts' jurisdiction are (a) whether the special statute which excludes such jurisdiction has used clear and unambiguous words indicating that intention, and (b) does not statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions. Applying these tests the inference is inescapable that the jurisdiction of the civil courts is intended to be excluded.

The bar excluding the jurisdiction of civil courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity."

14. The first appellate court by remand intends to find

out as to whether the appellant/defendant has violated

building bye-laws and as to whether there is any deviation.

Construction in violation of building bye-laws, any frontal

projection to the building are squarely covered under Section

187 of the Karnataka Municipalities Act, 1964. Therefore, the

finding of the first appellate court that the matter requires de

novo trial and the plaintiff has to implead Chief Officer, TMC,

Jamakhandi and Secretary of Town Planning Authority on the

ground that they are necessary parties to the suit and further

finding that the trial court has to appoint a technical person to

secure an report are squarely covered under the above said

section. The statutory right of an authority to deal with

constructions either in excess of permissible floor area or

violation in regard to setback are issues which are totally

vested with the authorities under the provisions of Karnataka

Municipalities Act, 1964. Therefore, aforesaid finding recorded

by the first appellate court is palpably erroneous, perverse and

the said observation made by the first appellate court are hit

by Section 9 of CPC.

15. It is in this background, I am of the view that

directions of the first appellate court to implead the officials of

local authorities is one without jurisdiction and the said finding

is palpably erroneous and suffers from perversity. By directing

to implead the officials of local authorities, the first appellate

court has virtually expanded the scope of enquiry which was

unwarranted.

16. The plaintiff has already let in evidence and it is not

his case that sufficient opportunity was not given to lead his

evidence. No additional evidence is also sought to be

produced before the appellate Court. It is in this background,

this Court would find that the appellate Court was not justified

in adopting the course of action of remand. What is lost sight

of by the appellate Court is that remand has to be resorted to

only in special circumstances as indicated in the Rules. The

Apex Court in catena of judgments has deprecated the

practice of remand. Remand has got the tendency of delaying

the final decision unduly and that may often lead to

harassment and undue loss to the parties. What the appellate

Court has not taken note of is that unwarrant remand gives

litigants an undeserved lease of life and therefore, must be

avoided. The appellate Court suo-motu has raised a new plea

in regard to deviation and has proceeded to remand the order.

There cannot be an order of remand for retrial on fresh

evidence excepting in rare circumstances where there has

been no proper or regular trial and prejudice has bee caused.

The permission of the courts for retrial has to be resorted to

by the appellate court only in a situation where either party

specifically prays for it. If a party seeks leave to lead further

evidence, in such situation, the appellate court has to examine

whether case on hand would warrant fresh evidence to be led

in. Therefore, the order of remand is contrary to Rule 23A to

25 of Order XLI of CPC and judgment rendered by this court in

Shanthaveerappa vs K.N. Janardhanachari2.

17. The first appellate court has not independently

assessed the actual lis between the parties and has not

independently considered the evidence on record in the

background of the dispute between plaintiffs and defendants

who are adjoining owners. What the appellate court lost sight

ILR 2007 KAR 1127

of is that supplementing of appreciation is contemplated at the

appellate stage under Order XLI Rule 1 of CPC and

independent appraisal of the evidence is the duty of the

appellate court. Failure to do and discharge duty is an

abdication of appellate power. It is the appellant court's duty

not to find out whether there is perversity in the trial court's

judgment but whether it is wrong. There is wide difference

between a wrong conclusion and a perverse conclusion. The

conclusion arrived at by the first appellate court is also

contrary to the principles laid down by the Hon'ble Apex Court

in the case of Shasidhar and Ors. v. Smt.Ashwini Uma

Mathad and Anr3 and also judgment rendered by in the case

of Madhukar and Others Vs. Sangram and Others4. The

Apex Court in Madhukar (supra) held that, while examining

the judgment of trial court, the appellate court has to render

its finding only after dealing with all the issues of law as well

as of fact and with the oral as well as documentary evidence,

AIR 2015 SC 1139

(2001) 4 SCC 756

led by the parties. The court must give reasons in support of

its findings and the reasons of the trial court are to be dealt on

all the issues and cogent reasons are to be assigned. I am of

the view that the first appellate Court has acted in excess of

its powers and has totally mis-appreciated the true

controversy between the parties. The appellate Court has also

not complied the mandatory provisions of Order XLI Rules 30

and 31 of CPC.

18. For the foregoing reasons, I am of the view that the

remand order passed by the lower appellate Court is not at all

sustainable.

Hence, I pass the following:

ORDER

The miscellaneous second appeal is allowed.

The judgment and decree passed by the first appellate

Court is set aside.

The appellate Court shall formulate appropriate points

which would arise for consideration in the context of issues

framed by the trial Court and shall independently assess the

ocular and documentary evidence lead in by the parties and

decide the case by strictly following the mandatory provisions

contemplated under Order XLI Rules 30 and 31 of CPC.

Sd/-

JUDGE

*alb/-