Narayanappa S/O. Balahanamappa ... vs Mahalingappa S/O. Hanamappa ...
2022 Latest Caselaw 569 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 13TH DAY OF JANUARY 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.S.A.NO.5913/2013 (POS&INJ)

BETWEEN

NARAYANAPPA
S/O BALAHANAMAPPA,
YEMMETTI, AGE : 55 YEARS,
OCC: AGRICULTURE,
R/O PCHAPUR, TQ: HUNAGUND,
DIST: BAGALKOT-587118.
                                            ... APPELLANT

(BY SRI VINAY S.KOUJALAGI & SMT.VIJAYALAXMI ADVTS.)

AND

MAHALINGAPPA
S/O HANAMAPPA KAMALADINNI,
AGE : 58 YEARS, OCC: AGRICULTURE,
R/O POCHAPUR, TQ: HUNAGUND.
                                         ... RESPONDENTS
(BY SRI V.G.BHAT FOR C/R)

     THIS APPEAL IS FILED UNDER SECTION 100 READ WITH
ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908,
PRAYING THIS COURT TO SET ASIDE THE JUDGMENT AND
DECREE DATED 24.07.2013 PASSED IN R.A.NO.29/2012 BY THE
SENIOR CIVIL JUDGE, HUNAGUND AT HUNAGUND AND IT IS
FURTHER PRAYED TO CONFIRM THE JUDGMENT AND DECREE
DATED 23.11.2011 PASSED BY THE ADDL.CIVIL JUDGE & JMFC,
HUNAGUND AT HUNAGUND IN O.S.NO.312/2001, IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                   2




                         : JUDGMENT :

Though this appeal is listed for admission, with

the consent of learned counsel appearing for both the

parties, the same is taken up for final disposal.

2. The captioned second appeal is filed by the

plaintiff questioning the divergent findings of the

Courts below.

3. Facts leading to the above said case are as

follows.

Appellant/plaintiff filed bare suit for injunction by

contending that he is the owner of house property

bearing Gram Panchayath No.73 situated at Pochapur

village. The appellant/plaintiff further contended that

'ABCD' portion shown in the hand sketch map is

dilapidated house of appellant/plaintiff. Further 'DECF'

portion shown in the hand sketch map is the plot

owned by respondent/defendant. The appellant/

plaintiff herein contended that point 'DC" depicted in

the hand sketch is a common wall owned by

appellant/plaintiff and as well as respondent/

defendant. The grievance of the appellant/plaintiff is

that since 'DC' point has a common wall

respondent/defendant is no right to put windows,

doors or water spout on the said common wall. Hence

filed bare suit for injunction at the first instance.

However, subsequently the appellant/plaintiff sought

amendment and incorporated the relief of mandatory

injunction. The appellant/plaintiff in support of his

contention led in oral evidence and documentary

evidence and examined four witnesses on his behalf.

Respondent/defendant by way of rebuttal evidence

examined two independent witnesses as DWs.2 and 3

and produced rebuttal documentary evidence vide

Exs.D.1 to D.8.

4. The Trial Court having assessed oral and

documentary evidence, held that the appellant/

plaintiff is the owner of the suit property and further

recorded a finding that the appellant/plaintiff is in

lawful possession over the 'ABCD' portion as shown in

the hand sketch map annexed to the plaint. The Trial

Court also held that the plaintiff has proved that the

respondent has illegally fixed windows and water

spout over 'DC' common wall and therefore decreed

the suit granting mandatory injunction and thereby

directing the respondent/defendant to remove the

windows and water spouts fixed over the 'DC'

common wall.

5. Respondent/defendant challenging the

judgment and decree of the Trial Court, preferred an

appeal in R.A.No.29/2012. The Appellate Court on re-

appreciation of oral and documentary evidence and

having meticulously examined the pleadings averred

in the Plaint was of the view that there is lot of

ambiguity in the pleadings. The Appellate Court was

also of the view that, the suit in the present form is

not at all maintainable. The Appellate Court held that

if the plaintiff is asserting joint ownership over the

'DC' wall by contending that, it is a common wall, then

it was incumbent on the part of the appellant/plaintiff

to seek a declaration to the effect that the disputed

common wall at point 'DC' in the hand sketch is a

common wall. The Appellate Court has also taken note

of the prayer sought in the Plaint and was of the view

that in the Plaint, only the relief of mandatory

injunction is sought and therefore held that, though

'DC' wall is shown to be a common wall in the hand

sketch, but however the appellant/plaintiff has not at

sought relief of declaration in respect of 'DC' common

wall, though appellant/plaintiff has specifically averred

at paragraph No.3 of the Plaint claiming that the wall

at point 'DC' is a common wall.

6. The First Appellate Court has also taken

note of the Commissioner's report and has recorded a

categorical finding that the suit property owned by

appellant/plaintiff which is situated on northern side of

respondent's plot bearing Sy.No.5 is a vacant site. The

Appellate Court has recorded a categorical finding that

the appellant/plaintiff has failed to establish that there

was a dilapidated house property owned by the

appellant/plaintiff in plot bearing No.73. On these set

of reasonings, the Appellate Court has come to

conclusion that the judgment and decree of the Trial

Court in declaring that the suit wall is a common wall

is perverse and in absence of prayer to that effect.

The Appellate Court was of the view that the

appellant/plaintiff has failed to establish that the

disputed wall is a common wall and in absence of

relief of declaration, the appellant/plaintiff is not

entitled for relief of mandatory injunction.

Consequently appeal is allowed and suit is dismissed.

7. Against the divergent findings of the Courts

below, the appellant/plaintiff is before this Court.

Perused the judgment under challenge.

8. I have given my anxious consideration to

the findings recorded by the Trial Court as well as the

Appellate Court. The dispute infact revolves around

narrow compass. The appellant/plaintiff is asserting

that he owns a house bearing No.73 which is in

dilapidated condition and to the south of his property,

respondent/defendant owns a property. It is specific

case of appellant/plaintiff that, both the properties are

divided by a common wall and therefore, the

appellant/plaintiff contends that respondent/

defendant has no right to fix windows and water

spouts on the common wall which is referred as 'DC'

point in the sketch annexed to the Plaint. To

substantiate his claim that he owns dilapidated house

to the North of defendant's property, there is

absolutely no documentary evidence produced. On the

contrary the Commissioner's report clearly indicates

that the property owned by the appellant/plaintiff is a

vacant site. If the property owned by

appellant/plaintiff is a vacant site, then this Court is of

the view that, the appellant/plaintiff cannot assert and

claim that the wall on the southern side is a common

wall. Even the Commissioner's report indicates that it

is a vacant site.

9. This Court would totally concur with the

findings recorded by the Appellate Court. If

appellant/plaintiff asserts that the northern wall of the

defendant's house is a common wall, then it was

incumbent on the part of appellant/plaintiff to seek

relief of declaration. Though the appellant/plaintiff has

pleaded in plaint that it is a common wall, however

has not chosen to seek a declaration to that effect.

Therefore, the Appellate Court was justified in holding

that the suit in the present form is not at all

maintainable. Even otherwise, the evidence on record

does not indicate that the appellant/plaintiff is the

owner of a residential house on the northern side of

respondent/defendant's house. On the contrary,

evidence on record reveals that property owned by

appellant/plaintiff is a vacant site.

10. The Appellate Court on re-appreciation of

oral and documentary evidence has come to

conclusion that it is a vacant site. This finding is

arrived at by referring to the Commissioner's report,

who has conducted spot inspection and the report

indicates that, it is a vacant site. Therefore, the

judgment and decree of the Appellate Court does not

suffer from any legal infirmities. No substantial

question of law arises. The appeal is devoid of merits

and accordingly stands dismissed.

SD/-

JUDGE

EM