Sri B Srikantaiah vs Sri Naganna
2022 Latest Caselaw 232 Kant

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 IN THE HIGH COURT OF KARNATAKA BENGALURU


       DATED THIS THE 06TH DAY OF JANUARY, 2022

                       BEFORE

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

            RSA No.32 OF 2009 (DEC/INJ)
BETWEEN:

SRI. B. SRIKANTAIAH
S/O LATE BORE GOWDA
AGED ABOUT 67 YEARS
R/AT DEVERASANAHALLI VILLAGE
KASABA HOBLI
NANJANAGUD TALUK
MYSORE DISTRICT.
                                          ... APPELLANT
(BY SRI.D.R. RAJASHEKHARAPPA, ADVOCATE)
(THROUGH VIDEO CONFERENCE)

AND:

SRI. NAGANNA
S/O LATE GADI HALE GOWDA
AGED ABOUT 60 YEARS
R/AT DEVERASANAHALLI VILLAGE
KASABA HOBLI
NANJANAGUD TALUK
MYSORE DISTRICT.
                                          ...RESPONDENT
(BY SRI. SHIVARUDRAPPA SHETKAR, ADVOCATE FOR
 RESPONDENT)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED: 11.09.2008 PASSED IN R.A. NO. 33/2003 ON THE
FILE OF THE CIVIL JUDGE, (SR. DN.) & JMFC, NANJANGUD,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
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AND DECREE DATED: 16.06.2003 PASSED IN O.S.
NO.101/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
NANJANGUD.

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


                         JUDGMENT

RSA No.32/2009 is filed by the plaintiff aggrieved

by the Judgment and Decree dated 11.09.2008 passed in

R.A.No.33/2003 on the file of Civil Judge (Sr.Dn.) and

JMFC at Nanjangud, (hereinafter referred to as 'First

Appellate Court') filed by the plaintiff aggrieved by the

Judgment and Decree dated 16.06.2003 passed in

O.S.No.101/2002 on the file of Principal Judge (Jr.Dn.),

Nanjangud, (hereinafter referred to as 'Trial Court')

dismissing the suit of the plaintiff.

2. Case of the plaintiff in brief is that he is the

owner in possession of the suit schedule property being a

passage measuring east to west 40', north to south 4½

feet situated on the southern side of his house property.

That the said passage exists between the property of the

plaintiff and the property of the defendant. That when

the plaintiff desired to put up a window on the southern

wall of his house property, the defendant illegally

obstructed for the same. Defendant thereafter

constructed a residential house on his property without

leaving any set-back and has fixed a window on the

northern wall of his property, i.e., towards southern side

of the plaintiff's property. Plaintiff further contended that

the said passage/vacant space existing on the southern

side of his house belonged to him and the defendant had

no right over the said space. Thus, the plaintiff sought

for a decree of declaration declaring him to be the owner

of the suit schedule property being the passage

measuring 40' x 4½' and also for a consequential relief of

permanent injunction restraining defendant from fixing

any window on the wall of his house abutting the

southern passage to the suit schedule property.

3. Defendant in his written statement denied the

case of the plaintiff including the claim of the plaintiff with

regard to his ownership over the suit schedule property.

The defendant further claimed that the said passage

belongs to him. The obstruction as alleged by the

plaintiff is also denied. The defendant further pleaded

that if the plaintiff wants to open a window on the

southern wall of his house, he can do so by demolishing

the existing wall and constructing a new wall by leaving 3'

of set-back. The defendant further specifically claimed

that he purchased the house property measuring East to

West 22.5', north to south 22.5' from one Sri.Ramappa

through a registered sale deed dated 01.02.1985 and

subsequently, purchased old country-tiled house with

vacant site in terms of a registered sale deed dated

16.03.1989 from one Ramakrishna which measures east

to west 20', north to south 22'. Thus, according to him

these two houses are adjacent to each other bounded on

the north by house of the plaintiff (formerly house of one

Siddamma). It is the further case of the defendant that

subsequent to the purchase, he had given up his right

over the area measuring east to west 30' and north to

south 6.5' in favour of the plaintiff abutting plaintiff's

house on the northern side as per the decision of

Panchayath people in June 1985 and in turn, the plaintiff

had given up his right in respect of right to way through

the house of Ramakrishna. It is further contended by the

defendant that subsequently, plaintiff had constructed a

new house with zinc sheet roof by utilizing 30' x 6.5'

space and the said house has got gable roofing towards

eastern side. Similarly the defendant has also demolished

the old house and started construction of a new house by

leaving 5.5' space towards northern side of his house.

That when the construction had reached roof level,

plaintiff had filed the present suit by making false

allegations. Hence, sought for dismissal of the suit. The

trial court based on the pleadings, framed the following

issues for its consideration:

1) Whether the plaintiff proves the existence of the suit schedule passage?

2) Whether the plaintiff proves that he is the absolute owner of the suit schedule passage?

3) Whether the plaintiff proves the alleged interference by the defendant?

4) Whether the plaintiff is entitled for the relief of declaration as sought for?

      5)    Whether the plaintiff is entitled for the
            consequential  relief    of     permanent
            injunction?

      6)    What order?




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

produced six documents marked as Exs.P1 to P6(a).

Defendant examined himself as DW.1 and marked three

documents as Exs.D1 to D3. The trial court on

appreciation of evidence made available by the parties,

dismissed the suit of the plaintiff by its Judgment and

Decree dated 16.06.2003. Aggrieved by the same,

plaintiff preferred Regular Appeal No.23/2003 before the

first appellate court. Considering the grounds urged by

the plaintiff, the first appellate court framed following

points for its consideration:

1. Whether the Plaintiff/appellant proves that he is absolute owner of the suit schedule passage and it is part and parcel of property bearing No.51/A and khata No.93 and he is in lawful possession of the same?

2. Whether the appellant/plaintiff proves that he is to be permitted to lead additional evidence and the matter is to be remanded back to the trial court?

3. Whether the appellant/plaintiff proves that the judgment and decree of the trial court are illegal, perverse, unsustainable and interference of this Court is required?

4. What Order or decree?

5. On re-appreciation of the material evidence,

the first appellate court dismissed the appeal filed by the

plaintiff. Aggrieved by the same, the plaintiff is before

this Court by this regular second appeal. This Court,

while admitting the aforesaid appeal, had formulated the

following substantial questions of law by its order dated

16.09.2013:

" When the Courts below came to a conclusion that there is a passage in between the house of the plaintiff and the defendant and the plaintiff intended to put up a window on the southern wall of his house, whether the Courts below committed an illegality in rejecting the claim under misconception that suit is for injunction restraining defendant from opening a window in the wall of the house of the defendant?"

6. Sri.D.R.Rajashekharappa, learned counsel for

the appellant fairly concedes that the plaintiff would not

press his suit with regard to declaration of ownership over

the passage. Further, he submits that the plaintiff would

restrict his suit to the extent of his right to put up a

window on the southern wall of his house property facing

the passage.

7. In furtherance to the aforesaid submission,

learned counsel for the appellant drawing attention of this

Court to paragraph 8 of the Judgment of the trial court as

well as Paragraph 16 of the Judgment of the appellate

court, submits that on factual analysis and appreciation of

the material evidence and also on the basis of the

deposition of the parties, the trial court and the first

appellate court had decisively held the existence of the

suit schedule property being passage between the

plaintiff's property and the defendant's property. He

further submits that the ownership with regard to the

plaint schedule property has not been held either in

favour of the plaintiff or in favour of the defendant. Such

being the case, he submits that there was no impediment

on the part of the trial court and the first appellate court

in granting the equitable relief of injunction in favour of

the plaintiff restraining the defendant from obstructing

the plaintiff from putting up a window on the southern

wall of his property. He submits that this aspect of the

matter gave rise to the substantial question of law which

needs to be answered in favour of the plaintiff and

thereby allowing the appeal.

8. Per contra, Sri.Shivarudrappa Shetkar,

learned counsel for respondent submitted that the very

existence of the plaint schedule property is in dispute. He

further submitted that the plaintiff lately made an

attempt by filing an application to produce additional

document to establish existence of the passage which has

been rightly declined by the trial court and the first

appellate court. Drawing attention of this court to

Paragraph 19 of the Judgment and Decree of the first

appellate court, he submits that the first appellate court

has extensively dealt with the contents of the Will dated

21.07.1980 sought to be produced by the plaintiff

wherein there is no mention with regard to the existence

of any passage. He further submits the reality as of this

date is that there is no existence of passage. As such,

granting of equitable relief of injunction in favour of the

plaintiff does not arise. Alternatively, he submits even

assuming there is a passage existing between the

plaintiff's property and defendant's property that alone

would not give any right to the plaintiff to put up a

window without plaintiff establishing his right over the

same. Hence, he submits that there is no substantial

question of law arising in the matter worth consideration.

Consequently, seeks for dismissal of the appeal.

9. The suit filed by the plaintiff is for a

declaration and consequential relief of injunction in

respect of piece of land measuring east to west 40 feet,

north to south 4½ feet which is described as plaint

schedule property. That the plaintiff had initially made a

claim of ownership over the same, has now given up his

claim of ownership over the same as noted above.

Therefore, the only question which requires consideration

in the light of substantial question of law framed by this

court by its order dated 16.09.2013 is with regard to

entitlement of plaintiff for equitable relief of injunction.

10. As rightly pointed out by the learned counsel

for the appellant, the trial court at Paragraph 8 of its

Judgment and first appellate court at Paragraph 16 of the

Judgment have given following findings with regard to the

existence of the passage which is extracted hereunder:

Paragraph 8 of judgment in OS No.101/2012:

8. But, as could be seen from the averments made by the parties to the suit in their pleadings and in the course of their evidence, both of them are admitting the existence of vacant space measuring 4½ feet North-South and 40 feet East-West in between the residential houses in their respective possession. This makes it clear that the existence of the vacant space which is a subject matter of this suit is admitted by both parties. But the defendant is denying the ownership of the plaintiff over the said space. As the burden of proving the above two issues are on the plaintiff, invariably the plaintiff shall lead positive evidence to prove his claim, whereas, as discussed above, the plaintiff has not produced any document of title to prove his ownership over the suit schedule property or any document to show that 1/3 portion of the residential house as shown in the Assessment Register Extract- Ex.P1 is the southern 1/3 portion of the property bearing No.51/A. That being the case, although it can be held that the existence of the suit schedule passage is proved by the plaintiff, because of the admissions made by the defendant, it cannot be held that the plaintiff is the owner of the suit schedule passage".

      Paragraph 16        of   the   judgment     in   RA
      No.33/2013

"16. There is no dispute between the parties that the suit schedule house comprising in the property bearing No.51/A khata No.93, belongs to the plaintiff and there is property of the defendant towards southern side of the house of the plaintiff. So also, there is no dispute between the parties that there is open space measuring 4½ft X 40ft existing in between the houses of the plaintiff and the defendant. Though defendant has denied the existence of the said suit schedule passage, the defendant has clearly admitted during the course of his cross-examination that suit schedule passage is in existence and it measures East to West 40ft. The only question is as to whom the said suit schedule passage belongs. The plaintiff has filed the suit for declaration and permanent injunction and heavy burden is cast on the plaintiff to establish that the suit schedule passage belongs to him and it forms part and parcel of property No.51/A Khata No.93.

11. Thus, the aforesaid factual finding given by

the trial court as well as the first appellate court leaves

no room for any ambiguity with regard to the existence

of the plaint schedule property being the passage. The

plaintiff having given up his claim for the ownership of

the passage and the defendant not claiming ownership

over the said piece of land, as observed by the courts

below, the said property belongs to none. In that view of

the matter, the defendant may not be in any justification

in obstructing or threatening to obstruct the plaintiff from

opening the window on the southern wall of his property

as pleaded by the plaintiff. The defendant, who

constructed his residential house subsequently has

already opened a window on the northern wall of his

property facing the passage. The question, therefore, is

only with regard to requirement of a permission to the

plaintiff in he opening the window on the southern side of

his house property.

12. The courts below have apparently

misconceived this aspect of the matter in opining that the

plaintiff is obstructing the defendant from opening the

window on the northern side of his house which aspect is

factually incorrect and does not emanate from the

material on record. In that view of the matter, the

present appeal requires to be allowed answering the

substantial question of law in favour of the plaintiff,

however, with an observation that while the plaintiff

would be entitled to open the window on the southern

wall of his house property, he shall ensure that such

opening of the window would not invade into the privacy

of the defendant. In other words, while opening of such

window by the plaintiff on the southern wall of his house

property, the plaintiff shall ensure that same shall not

directly face the window of the defendant which is

already opened by the defendant on the northern wall of

his property. The plaintiff shall ensure the compliance of

this observation while opening the window.

13. In the result, the following;

ORDER

i) The appeal in RSA No.32/2009 is partly

allowed.

ii) Defendant is restrained from obstructing

the plaintiff in opening the window on

the southern wall of his property towards

the plaint schedule property being the

passage measuring east to west 40 feet

and north to south 4½ feet.

In the circumstances, parties to bear their own

costs.

Sd/-

JUDGE

bnv*