Shri U G Sreenivasa Rao S/O Shri ... vs Shri N Malathesh S/O Rudrappa
2022 Latest Caselaw 3316 Kant

                           1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25th DAY OF FEBRUARY, 2022

                         BEFORE

           THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                 R.S.A.NO.2513 OF 2006

BETWEEN:

1.     SHRI U.G. SREENIVASA RAO
       S/O SHRI GANAPATHI SHET,
       MAJOR
       OWNER OF MYSORE CAFE
       SPM ROAD,
       SAGAR TOWN - 577 401.

2.     SHRI GANAPATHY S. NAYAK
       S/O LATE SARVOTHAN NAYAK
       MAJOR,
       SRI. RAMANATHA NILAYA
       S.N. NAGAR,
       SAGAR - 577 401.
                                   ... APPELLANTS
(BY SRI.B.N. SHETTY, ADVOCATE FOR
    SRI. ASHOK HARANAHALLI, ASSTS.,)

AND:

SHRI. N. MALATHESH
S/O RUDRAPPA
AGED ABOUT 59 YEARS
MERCHANT, MARKET ROAD
SAGAR - 577 401.
                                   ... RESPONDENT

(BY SRI. VISHWANATH R. HEGDE, ADVOCATE FOR C/R)
                                      2


     THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND
DECREE DATED 08.03.2006 PASSED IN R.A. NO. 74/1997 ON
THE FILE OF THE CIVIL JUDGE (SR.DN), SAGAR, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND
DECREE DATED 12.08.1997 PASSED IN O.S. NO. 85/1997 ON
THE FILE OF THE PRL. MUNSIFF, SAGAR.

    THIS APPEAL BEING HEARD AND RESERVED, COMING
ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                              JUDGMENT

Present appeal is by the appellant/defendant

aggrieved by the judgment and decree dated 08.03.2006

passed by The Civil Judge (Sr.Dn), Sagar in

R.A.No.74/1997 (hereinafter referred to as the 'first

appellate court'), in and by which, the first appellate

court while allowing the appeal of the plaintiff, has set

aside the Judgment and Decree dated 12.08.1997 passed

by the Principal Munsiff (Jn.Dn.), Sagar in

O.S.No.85/1997 (hereinafter referred to as the 'trial

court').

2. Parties are referred to by their original ranking

before trial Court.

3. The aforesaid suit in O.S.No.85/1997 was filed

by the plaintiff for relief of mandatory injunction and

possession on the premise that the suit schedule

properties are ancestral properties. That the plaint 'A'

schedule property being the property bearing

Assessment No.251, IDN Khatha No.228, SPM Road,

Sagara Town, measuring East to West 28.8 + 27 + 2 x

54.6 was sold by the plaintiff in favour of the defendant

No.1 in terms of deed of sale dated 17.11.1983, retaining

a lane measuring 4 and 1/2 feet on the western side of

the 'A' schedule property to be used by the plaintiff to

reach backyard of his residential house. That earlier

plaintiff had mortgaged the property in favour of the

defendant No.1 which was redeemed by selling the same

to the defendant in terms of the aforesaid deed of sale.

That there was a specific condition in the said deed of

sale to the effect that the defendant No.1 shall not put up

window or door on the wall facing the aforesaid lane

except a ventilation for the purpose of air and light at the

top of the wall. That the defendant No.1 in breach of the

said condition, constructed building on the Schedule 'A'

property. While constructing the building, the defendant

has encroached upon about 1 and 1/2 feet out of 4 and

1/2 feet of the lane by constructing a wall thereon and

has further put up of a cement window and ventilators

towards the said lane. The encroached portion of the

lane and the windows and ventilators are described as

plaint 'B' schedule property. The aforesaid illegal acts of

the defendant constrained the plaintiff to file the above

suit seeking relief of recovery of possession and

mandatory injunction.

4. The defendant filed written statement

contending interalia that he neither encroached any

portion of the 'B' schedule property of the plaintiff nor

has violated the terms and conditions imposed in the

deed of sale. That he has constructed the building after

obtaining the licence from the Town Municipal

Corporation and with a consent and knowledge of the

plaintiff. That the plaintiff had affixed his signature to the

mahazar. Without the consent of the plaintiff, he has only

put up sajja and the window. That during 1958, plaintiff

had leased the entire property in favour of the defendant

and thereafter, during 1972, mortgaged the same in his

favour. Thus, the defendant has been in possession of

the entire property and plaintiff has lost the right even to

redeem the mortgage. That having given consent for

construction, plaintiff remained silent until completion of

the building and only thereafter has filed the suit for

wrongful gain and to cause wrongful loss to the

defendant. If there was violation of the condition of the

licence, the Town Municipal Corporation would take

action and the suit of the plaintiff was thus not

maintainable. Hence, sought for dismissal of the suit.

5. The Trial Court based on the pleadings framed

the following issues;

"1. ªÁ¢AiÀÄÄ vÀ£Àß ªÁzÀ¥ÀvÀæzÀ°è ºÉýzÀ zÁªÉzÀ '©' ±É, ¸ÉÆwÛ£À Nt HfðvÀzÀ°èvÀÄÛ, ªÀÄvÀÄÛ EzÀgÀ PÁ£ÀÆ£ÀħzÀݪÁzÀ ¸Áé¢Ã£ÀªÀ£ÀÄß FvÀ zÁªÉ zÁR® vÁjÃT¤AzÁ ºÉÆA¢zÀÝ CAvÀ ªÁ¢ ¹zÀÝUÉƽ¸ÀĪÀ£ÉÃ?

2. ªÁ¢ vÀ£Àß ªÁzÀ¥ÀvÀæzÀ°è «ªÀj¹zÀAvÉ ¸ÀzÀj '©' ±É.

¸ÉÆwÛ£À NtÂAiÀÄ°è ¥ÀæwªÁ¢AiÀÄÄ CPÀæªÀĪÁV CwPÀæ«Ä¹ UÉÆÃqÉ PÀnÖgÀĪÀ£ÀÄ, ºÁUÀÆ F UÉÆÃqÉAiÀÄ ¥À²ÑªÀÄzÀ PÀqÉ '©' ¸ÉÆwÛ£À°è ZÁagÀĪÀ ¸ÀeÁÓ F NtÂAiÀÄ°è §gÀÄvÀÛzÉ CAvÀ ªÁ¢ ¹zÀÝUÉƽ¸ÀĪÀ£ÉÃ?

3. ¥ÀæwªÁ¢AiÀÄÄ ¥À²ÑªÀÄzÀ UÉÆÃqÉAiÀÄ°è AiÀiÁªÀÅzÀÆ QlQ ¨ÁV®ÄUÀ¼À£ÀÄß PÀÆræ¸ÀĪÀ ºÀPÀÄÌ ºÉÆA¢gÀ°®èªÉAzÀÄ ªÁzÀ ¹zÀÝUÉƽ¸ÀĪÀ£ÉÃ?

4. ¥ÀæwªÁ¢AiÀÄÄ vÀ£Àß «ªÁzÀ¥ÀvÀæzÀ°è «ªÀj¹zÀAvÉ vÁ£ÀÄ PÁAiÉÄݧzÀݪÁV ªÀÄÆgÀÄ CAvÀ¹Û£À ©°ØAUï PÀnÖzÀÄÝ EzÀgÀ ¸ÀeÁÓªÀ£ÀÄß Qý¸À®Ä PÉÆÃnð¤AzÀ ºÀÄPÀÄÌA ªÀiÁrzÉÝà CzÀgÀ°è vÀ£Àß PÀlÖqÀªÉà PÀĹzÀÄ vÀÄA§¯ÁgÀzÀ ºÁ¤ DUÀĪÀÅzÉAzÀÄ ¥ÀæwªÁ¢ ¹zÀÝUÉƽ¸ÀĪÀ£ÉÃ?

5. ªÁ¢AiÀÄÄ vÀ£Àß ªÁzÀ¥ÀvÀæzÀ°è ¨ÉÃrzÀAvÉ ªÀiÁåAqÉÃlj EAdPÀë£ï §UÉÎ rQæ ¥ÀqÉAiÀÄ®Ä CºÀð¤gÀĪÀ£ÉÃ?

6. AiÀiÁªÀ rQæ, E®èªÉà ºÀÄPÀÄA?"

and recorded evidence.

6. Plaintiff examined himself as P.W.1 and

exhibited 6 documents marked as Ex.P1 to Ex.P6.

Defendant examined himself as D.W.1 and exhibited 4

documents marked as Ex.D1 to Ex.D4.

7. On appreciation of evidence, the Trial Court

dismissed the suit of the plaintiff. Aggrieved by the same,

the plaintiff preferred the regular appeal in

R.A.No.74/1997 before the First Appellate Court.

8. Considering the grounds urged in the appeal

memo, the First Appellate Court framed the following

points for its consideration.

"1. Whether the appellant proves that the judgment and Decree of the trial- court is not sustainable, perversive and needs to be interfered?

2. What order?"

and on re-appreciation of evidence and pleadings, the

First Appellate Court allowed the appeal setting aside the

judgment and decree passed in O.S. No.85/1997 and

decreed the suit of the plaintiff with specific directions as

follows:

" The appeal filed by the appellant is allowed with costs.

The judgment and decree passed in O.S.No.84/1997 is set aside.

The plaintiff is entitled the mandatory injunction in respect of removal of windows and sajja put up on 1st and 2nd floor and sajja, except ventilators on western wall constructed by the defendant.

The defendant is directed that he shall demolish within 6 months for cement sajja measuring 1 1/2' and 3 windows wherein no frame put on 1st floor as mentioned in para 10 of the Commissioner's report and also window measuring 7X4 feet and 4 inch and also 2 windows measuring 5 feet and 1 inch X 4 feet X 4 inch and also 1 feet 6 inches slab of 2nd upstair as mentioned in para 11 of Commissioner's report.

Further, the plaintiff is entitled, the recovery of possession of his property situated towards western side up to western wall of the defendant.

Further, the suit for the plaintiff is dismissed in respect of prayer for demolishing the ventilators and western wall of the defendant."

Aggrieved by the same, appellant/defendant filed

the present regular second appeal.

9. It is relevant to note at this juncture that the

original defendant has apparently sold the property in

favour of one Sri.Ganapathi S. Nayak, who has been

brought on record as appellant No.2 in terms of order

dated 03.06.2010 of this Court. This Court by its order

dated 10.12.2007 admitted the appeal for consideration

for the following substantial questions of law;

"1. Whether the learned appellate judge was justified in reversing the judgment and decree of the learned trial judge ignoring the evidence on record?

2. Whether the judgment and decree of the appellate court is vitiated for granting a decree for mandatory injunction in favour of the plaintiff when the construction has come about two years prior to the institution of the suit, thereby acquiescing his right?"

10. Learned counsel for the appellant reiterating

the grounds urged in the memorandum of appeal

submitted;

(a) that the First Appellate Court in the absence of

any evidence contrary to the finding of the Trial Court

ought not to have set aside the judgment and decree.

(b) that the First Appellate Court has not

appreciated the fact that the plaintiff having waited till

completion of construction by the defendant has

acquiesced himself and is estopped from raising the issue

of breach of the terms of the deed of sale. Thus, the

defendant is entitled for equitable consideration of this

case.

(c) that the projection of the sajja and installation

of window would not cause any inconvenience to the

plaintiff, which fact has not been taken to consideration

by the First Appellate Court. Hence, submits that the

substantial questions of law raised are required to be

answered in his favour.

11. On the other hand, learned counsel for the

respondent/plaintiff submits;

(a) that the plaintiff has approached the Court

seeking the relief at the earliest point in time and there is

no acquiescence on the part of the plaintiff at any time in

any manner whatsoever. Therefore, the defendant is not

entitled for any equitable relief of estoppel on the said

ground.

(b) referring to the report of the Court

Commissioner dated 23.09.1989, wherein at paragraph

10 the Court Commissioner has reported that the

defendant had fixed three wooden frames measuring 7 ft.

X 4ft. and 4 inch tied with a chain without installation of

door and making of provisions for two windows and

ventilators without fixing any frame thereof, learned

counsel submits that even as on the date when the Court

Commissioner visited the site of the building the process

of construction was underway and the construction was

not completed. Thus, he submits that the defendant

despite having complete knowledge of the pendency of

the suit has proceeded to install the windows and

ventilator into the schedule 'B' property. As such, he is

not entitled for any equitable relief and he submits that

there is clear violation of terms of the deed of sale and

same has not been condoned by the plaintiff.

12. Heard learned counsel for the parties and

perused the records.

13. The Ex.P1 is the deed of sale in terms of

which the defendant had purchased the property from

the plaintiff and his family members. A specific condition

in the said deed of sale is imposed on the defendant to

the effect that;

"F UÉÆÃqÉAiÀÄ°è £ÀªÀÄä Nt ¢QÌUÉ QlQ CxÀªÁ ¨ÁV®Ä EqÀ®Ä CªÀPÁ±À EgÀĪÀÅ¢®è. UÁ½ ªÀÄvÀÄÛ ¨É¼ÀQ£À UÉÆÃqÉAiÀÄ ªÉÄïÁãUÀzÀ°è ªÉAn¯ÉÃlgï EqÀĪÀ ºÀQÌgÀÄvÀÛzÉ".

In terms of the aforesaid condition in the deed of sale,

defendant was entitled only for installation of ventilator

on the top of the wall facing the lane and was prohibited

from installing any window or the door. The said

condition in the aforesaid deed of sale is not disputed.

The lane referred to in the said deed of sale leads to

backyard of the plaintiff. The first appellate court has

taken note of the fact that even prior to executing the

mortgage infavour of the defendant by the plaintiff , the

plaintiff was using the said lane to reach to the said

backyard of the house of the plaintiff. The contention of

the defendant of he being in possession of the 'B'

schedule property has been considered and negated by

the first appellate court at paragraph 14 of its judgment.

Thus, the first appellate court has taken note of the fact

that the aforesaid condition imposed in the deed of sale

prohibiting the plaintiff from putting up any window or

door is justifiable as the plaintiff had retained the said

bye- lane to reach to his backyard from the main road.

Therefore, construction by the defendant by installing the

window on the southern side of the wall and sajjas facing

the bye lane described in 'B' schedule property amounts

to breach of aforesaid condition of the deed of sale, even

as rightly taken note of by the First Appellate Court.

14. Though the plaintiff by amending the plaint

had sought for relief of possession as an alternate relief

in view of specific contention taken by the defendant of

he being in possession of the entire property in terms of

the mortgage, the first appellate court as noted above in

paragraph 14 of its judgment has addressed the issue of

'B' schedule property being in possession of plaintiff and

has held plaintiff having proved his possession over the 4

1/2 feet of bye lane.

15. As regards the contention of the appellant of

plaintiff consenting for construction by affixing his

signature on the mahazar and thereby acquiescing

himself, the trial Court has taken note of the fact at

paragraphs 21 and 22 of its judgment that the said

mahazar as per Ex.D.2 drawn on 18.11.1987 though

mentioned about construction of building by the

defendant on the property measuring east to west 23 ft.

and north to south 45 ft., did not however contain any

information regarding plaintiff and his family members

giving consent to put up sajja or windows on the

western wall. Therefore, the first appellate court has

rightly concluding merely affixing signature on mahazar

as above would not dilute the condition imposed on the

defendant interms of the deed of sale prohibiting him

from installing doors and windows facing the 'B' schedule

property.

16. The Commissioner's report dated 23.09.1989

categorically points out the stage of construction of the

building by the defendant more particularly the

installation of three wooden frames measuring 7 ft.X4 ft.

+ 4 inch and position of windows in an unfinished

condition even during the pendency of the suit. The

defendant thus proceeded to construct during the

pendency of the suit. As noted above, the original

defendant has sold the property in favour of the second

appellant herein. The second appellant has been brought

on record in terms of the order dated 03.06.2010. The

first defendant himself having constructed the wall and

installed the windows during the pendency of the suit,

cannot claim any equity.

17. All factual and legal aspect of the matter

having been rightly considered by the first appellate

Court. No infirmity or illegality can be found with the

finding and conclusion arrived at by the First Appellate

Court. The substantial questions of law raised above are

answered accordingly infavour of the plaintiff. Appeal is

therefore dismissed and judgment and order dated

08.03.2006 passed by The Civil Judge (Sr.Dn), Sagar in

R.A.No.74/1997 is confirmed.

Sd/-

JUDGE

RU