Karnataka High Court
M Chennabasappa S/O Ishwarappa ... vs V Durgappa S/O Hanumanthappa on 21 July, 2022
Bench: M.G.S. Kamal
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 21st DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 3041 OF 2006 (INJ)
c/w
REGULAR SECOND APPEAL NO. 3042 OF 2006 (INJ)
In RSA No.3041/2006:
BETWEEN:
1. M CHENNABASAPPA S/O ISHWARAPPA MALAGI
SINCE DECEASED BY HIS LRS.
1(a) SRI.MANJUANTH M S/O CHANNABASAPPA M.,
AGE: 39 YEARS, OCC: BUSINESS,
R/O: LAXMI NIVAS, RAICHUR ROAD, JULAI NAGAR,
GANGAVATHI- 583227, TQ: GANGAVATHI,
KOPPAL DIST.
1(b) SRI.SRINIVAS M S/O CHANNABASAPPA M.,
AGE: 37 YEARS, OCC: BUSINESS,
R/O: LAXMI NIVAS, RAICHUR ROAD, JULAI NAGAR,
GANGAVATHI- 583227, TQ: GANGAVATHI,
KOPPAL DIST.
1(c) SRI.RAVISHANKDAR M S/O CHANNABASAPPA M.,
AGE: 26 YEARS, OCC: BUSINESS,
R/O: LAXMI NIVAS, RAICHUR ROAD, JULAI NAGAR,
GANGAVATHI- 583227, TQ: GANGAVATHI,
KOPPAL DIST.
...APPELLANTS
(BY SRI. B SHARANABASAWA, ADV.)
AND:
1. V DURGAPPA S/O HANUMANTHAPPA
AGE; 55 YRS, BUSINESSMAN,
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
R/O GANGAVATHI-583227, KOPPAL DIST.
2. V NARASAPPA S/O DURGAPPA
AGE: 40 YRS, BUSINESSMAN,
R/O GANGAVATHI-583227, KOPPAL DIST.
3. V VENKATESH S/O DURGAPPA
AGE: 32 YRS, BUSINESSMAN
R/O GANGAVATHI-583227, KOPPAL DIST.
...RESPONDENTS
(BY SRI. S.H.MITTALKOD, ADV. FOR
SRI.V M SHEELVANT, ADV.)
THIS RSA IS FILED U/S 100 R/W O 42 R 1 CPC AGAINST THE
JUDGMENT AND DECREE DATED: 19.8.2006 PASSED IN RA.NO.
39/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), GANGAVATHI,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED: 20.4.2006 PASSED IN OS.NO.117/2004 ON THE
FILE OF THE ADDL.CIVIL JUDGE (JR.DN.) & JMFC, GANGAVATHI.
In RSA NO.3042/2006:
BETWEEN:
1. M CHENNABASAPPA S/O ISHWARAPPA MALAGI
SINCE DECEASED BY HIS LRS.
1(a) SRI.MANJUANTH M S/O CHANNABASAPPA M.,
AGE: 39 YEARS, OCC: BUSINESS,
R/O: LAXMI NIVAS, RAICHUR ROAD, JULAI NAGAR,
GANGAVATHI- 583227, TQ: GANGAVATHI,
KOPPAL DIST.
1(b) SRI.SRINIVAS M S/O CHANNABASAPPA M.,
AGE: 37 YEARS, OCC: BUSINESS,
R/O: LAXMI NIVAS, RAICHUR ROAD, JULAI NAGAR,
GANGAVATHI- 583227, TQ: GANGAVATHI,
KOPPAL DIST.
1(c) SRI.RAVISHANKDAR M
S/O CHANNABASAPPA M.,
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
AGE: 26 YEARS, OCC: BUSINESS,
R/O: LAXMI NIVAS, RAICHUR ROAD,
JULAI NAGAR, GANGAVATHI- 583227, TQ: GANGAVATHI,
KOPPAL DIST.
...APPELLANTS
(BY SRI. B SHARANABASAWA, ADV.)
AND:
1. V DURGAPPA S/O HANUMANTHAPPA
AGE; 55 YRS, BUSINESSMAN,
R/O GANGAVATHI-583227, KOPPAL DIST.
2. V NARASAPPA S/O DURGAPPA
AGE: 40 YRS, BUSINESSMAN,
R/O GANGAVATHI-583227, KOPPAL DIST.
3. V VENKATESH S/O DURGAPPA
AGE: 32 YRS, BUSINESSMAN
R/O GANGAVATHI-583227, KOPPAL DIST.
...RESPONDENTS
(BY SRI. S.H.MITTALKOD, ADV. FOR
SRI.V M SHEELVANT, ADV.)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 19.8.2006 PASSED IN
R.A.NO.35/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
GANGAVATHI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGEMENT AND DECREE DATED: 20.4.2006 PASSED IN
OS.NO.130/2004 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.)
GANGAVATHI.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 17.06.2022, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
JUDGMENT
1. RSA Nos.3041/2006 and 3042/2006 are filed by
the appellant/plaintiff aggrieved by the judgment and
decree dated 19.08.2006 passed in R.A.Nos.39 and 35 of
2006 on the file of the Civil Judge (Sr.Dn.), Gangavathi
(hereinafter referred to as 'the first appellate Court').
2. The said R.A.Nos.39 and 35 of 2006 were filed
by the respondents herein against the judgment and
decree dated 20.04.2006 passed by the Additional Civil
Judge (Jr.Dn.) and JMFC, Gangavathi, (hereinafter referred
to as 'the trial Court') by which the suit in
O.S.No.117/2004 filed by the appellant/plaintiff was
decreed and suit in O.S.No.130/2004 filed by the
respondents herein was dismissed. By the impugned
judgment and decree, the first appellate Court has
dismissed the suit of the appellant/plaintiff in
O.S.No.117/2004 and decreed the suit in
O.S.No.130/2004 filed by the respondents herein.
RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
3. Brief facts of the case are that; the suit in
O.S.No.117/2004 filed by the appellant/plaintiff herein
against the respondents for relief of permanent injunction
restraining the respondents herein or their agents, their
servants from interfering with the peaceful possession and
enjoyment of the appellant/plaintiff over the suit schedule
property including Northern compound wall, which is
described as under:
SCHEDULE:
N.A. land consisting Rice and Oil Mill with open
space out of Sy.No.152 measuring 4 acres 5 guntas
being municipal No.3-2-186, situated at Gangavathi,
bounded by:
East : Rice mill of Bantia Industries and
Swastik Industries, and land of
plaintiff Sy.No.151/K
West : Road
North : Compound wall of plaintiff and
then the land of defendant No.1.
South : Kampli Road.
4. The suit in O.S.No.130/2004 is filed by the
respondents herein against the appellant/plaintiff for relief
of permanent injunction restraining the appellant/plaintiff
RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
from interfering in the peaceful possession and enjoyment
of the plaint schedule property described in the said suit
as under:
SCHEDULE:
M/s.Swastik Industries Rice Mill, Raichur Road,
Gangavathi being municipal No.3-2-175/1 : : 3-2-114/1 being
bounded by:
East : Bhantia Rice Mill
West : Raichur Gangavathi Main road
North : : Mahalakshmi Rice Mill and
South : Bhantia Industries and Vijayalakshmi
Rice Mill
5. Since the parties are same, subject matter of
the suits and the issues involved therein are common, the
trial Court clubbed both the suits and recorded common
evidence and disposed of the suits by its common
judgment and decree. Therefore, for the purpose of
convenience, the appellants who are the plaintiffs in
O.S.No.117/2004 and who are the defendants in
O.S.No.130/2004 are referred to as the plaintiffs and the
respondents who are the defendants in O.S.No.117/2004
RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
and the plaintiffs in O.S.No.130/2004 are referred to as
the defendants in the present appeals.
6. The case of the plaintiffs is that; originally the
land bearing Sy.No.152/A was owned and possessed by
one Smt.Renukavva wife of Urukundappa who in terms of
deed of sale dated 08.01.1962 sold the same in favour of
K.Veeranna and D.Krishnamraj. The said two persons
equally divided the said property in which Southern half
portion was allotted to K.Veeranna. K.Veeranna started
rice mill business on his portion of land on a partnership
consisting of himself and four other persons including the
plaintiff under the name and style of M/s.Vijaya Laxmi Rice
Mill on 12.12.1966. That the said partnership firm was
reconstituted on 31.03.1977, in which one of the partners
by name N.Ayyappa retired from the firm and the
remaining partners continued. On 07.07.1978, the
partnership firm was dissolved in terms of which, except
the plaintiff herein, all other partners retired from the firm
and the plaintiff remained and continued to conduct the
RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
business of the firm as proprietor thereof. Thus, the
plaintiff has been in possession and has been carrying on
the business of Vijaya Laxmi Rice Mill on the suit schedule
property. All the revenue records have been changed in
the name of the plaintiff and the plaintiff has been paying
the tax thereof.
That the defendant No.1, who is the father of defendant
Nos.2 and 3 is carrying on the business of rice mill under
the name of style of M/s.Swastik Industries Rice Mill, in
the land situated towards Northern side of the suit
schedule property. That the suit schedule property has
been enclosed by a compound wall which had been
constructed by the plaintiff's Firm in the year 1966. The
defendants who are carrying on the Rice Mill business on
the land situated towards Northern side of the suit
schedule property, without having any right over the
compound wall situated on the suit schedule property,
with an intention to knock of the property of the plaintiff,
RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
attempted to demolish the said compound wall,
constraining the plaintiff to file the suit.
7. The defendants in their written statement
admitted the averments in the plaint with regard to the
land in Sy.No.152/A originally belonging to
Smt.Renukavva purchased by K.Veeranna and
D.Krishnamraj but however denied the constitution of the
Partnership Firm, dissolution of the same and the plaintiff
becoming the absolute owner thereof. The defendants
denied that the compound wall belong to the plaintiff. It is
specifically contended that the compound wall was never
constructed in the year 1966. That they have been running
the business of rice mill under the name and style of
M/s.Swastik Industries for the last 20 years on their land
measuring 5 acres bearing Sy.No.151/A and the land in
Sy.No.151/A/1 to the extent of 3 acres and these two
strips combined together are renumbered as Sy.No.151/2.
That they have constructed the rice mill along with the
compound wall on the said property. The compound wall in
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RSA No. 3041 of 2006 connected with
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dispute belongs to the defendants. That the said
compound wall was in dilapidated condition which the
defendants intended to renovate by obtaining permission
from the Municipal Authority, Gangavathi on 25.09.2004
and were in the process of renovating the compound wall.
Thus, they deny the allegation of demolition of the
compound wall and also deny the claim and right of the
plaintiff over the compound wall. Hence, sought for
dismissal of the suit.
8. The averments of the plaintiff in
O.S.No.130/2004 and the written statement are identical
and similar to the one extracted herein above. Based on
the pleadings, the trial Court framed the following issues:
ISSUE IN O.S.NO.117/2004
1) Whether the plaintiff proves that he has been in
possession and enjoyment of the suit schedule
property including the Northern compound wall as
on the date of the suit?
2) Further whether the plaintiff proves that the
defendants has interfered with his peaceful
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
possession and enjoyment of the suit schedule
property?
3) Whether the plaintiff proves that the defendant has
demolished the Northern compound wall of the suit
schedule property?
4) Whether the plaintiff is entitled to the reliefs
claimed in the suit?
5) What order or decree?
ISSUE IN O.S.NO.130/2004
1) Whether the plaintiffs prove that they are in lawful
possession of the suit schedule property including
the compound wall on the date of the suit?
2) Further, whether the plaintiffs prove that the
defendants tried to interfere with their peaceful
possession and enjoyment over the suit schedule
property?
3) Whether the plaintiffs are entitled to the relief of
permanent injunction against the defendants as
claimed inn the suit?
4) Whether the suit is not maintainable in view of the
provision of Partnership Act?
5) What order or decree?
9. The plaintiff examined himself as PW1 and one
Giridhar Singh as PW2 and exhibited 17 documents as
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
Exs.P1 to P17. The defendants examined himself as DW1
and also examined K.Veeranna and Yamanoorappa as
DWs.2 and 3 and exhibited 16 documents as Exs.D1 to
D16. The trial Court on appreciation of evidence decreed
the suit of the plaintiff in O.S.No.117/2004 and dismissed
the suit of the defendants in O.S.No.130/2004 by the
judgment and decree dated 20.04.2006. Aggrieved by the
same, the defendants filed regular appeal in
R.A.Nos.39/2006 and 35/2006 respectively. The first
appellate Court based on the grounds urged in the
aforesaid regular appeal framed the following points for its
consideration:
POINTS IN R.A.NO.39/2006
1) Whether findings of the trial Court in
O.S.No.117/2004 is correct?
2) Whether the findings of the learned single
Judge in O.S.No.117/2004 calls for
interference?
3) What order?
POINTS IN R.A.NO.35/2006
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
1) Whether findings of the trial Court in
O.S.No.130/2004 is correct?
2) Whether the findings of the learned single
Judge in O.S.No.130/2004 calls for
interference?
3) What order?
10. By the impugned judgment and decree dated
19.08.2006, the first appellate Court allowed the said
appeals setting aside the judgment and decree of the trial
Court and dismissed the suit in O.S.No.117/2004 of the
plaintiff and decreed the suit in O.S.No.130/2004 of the
defendants. Being aggrieved by the same, the plaintiffs
are before this Court.
11. This Court by order dated 28.10.2009 admitted
the aforesaid appeals for considering the following
substantial questions of law:
a) Whether the Lower Appellate Court on the admitted
evidence on record was justified in concluding that the
plaintiff had not proved his title to the suit property and
possession of the same?
b) Whether the Lower Appellate Court is justified in
concluding that the admissions made by a witness
(DW.2) on behalf of the opposite party cannot be taken
as an admission of the said property?
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
c) Whether the Lower Appellate Court is justified in
holding that the plaintiffs case regarding dissolution of
the partnership firm of which he was a partner cannot be
believed since the plaintiff has failed to produce the
settlement of accounts between the parties?
d) Whether the Lower Appellate Court is justified in
reversing the decree for mandatory injunction granted by
the Trial Court in favour of the plaintiff on a erroneous
notion that the plaintiff had failed to given the
measurements?
12. Sri.B.Sharanabasawa, learned counsel for the
appellants reiterating the grounds urged in the
memorandum of appeal submitted that the first appellate
Court grossly erred in reversing the judgment and decree
of the trial Court which had been passed taking note of the
oral and documentary evidence more particularly Ex.P5-
deed of dissolution of partnership, which has been
admitted by DW2 and also admitted by defendant No.1
who is the signatory to the said document as a witness
thereof. That the approach of the first appellate Court is
erroneous as the suit is one for bare injunction in respect
of compound wall, therefore, question of title would not
arise. The first appellate Court erred in law in not taking
into consideration the admission made by DW2 with
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
regard to the Partnership Firm which was subsequently
dissolved and the plaintiff carrying on the business as the
exclusive owner of the firm and its entire property, on an
erroneous premise that admission by defendant No.2, was
not binding on them. Hence, sought for allowing of the
appeals.
13. Learned counsel for the respondents on the
other hand justifying the judgment and order passed by
the first appellate Court submitted that the plaintiff has
failed to establish independently the extent of compound
wall and his ownership thereof. He submits that in
between the property of the plaintiff and the defendants,
there is property belonging to the one Bhantia and without
making him party to the suit, the plaintiff could not have
filed the suit only against the defendants. That if at all the
plaintiff is aggrieved, the relief was only against Bhantia
being the adjoining owner and not against the defendants
whose property is situated thereafter. He submits that
though the suit is one for injunction, the plaintiff had to
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RSA No. 3041 of 2006 connected with
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prima facie establish its title and possession over the
property without which he is not entitled for the relief,
hence substantial questions of law needs to be answered
in favour of the defendants by dismissing the appeals of
the plaintiffs.
14. Heard the learned counsel for the parties.
Perused the records.
15. From the pleadings and the schedules
mentioned in both the plaints in O.S.Nos.117/2004 and
130/2004 and also on perusal of the reasoning of the trial
Court and the first appellate Court and from the
arguments advanced by the learned counsel for the
parties, it is clear that the dispute is only in respect of the
compound wall which is situated on the Northern side of
the property being claimed by the plaintiff in
O.S.No.117/2004 and on the Southern side of the property
claimed by the defendants in O.S.No.130/2004. It is also
clear that the issue is with regard to the demolition and
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RSA No. 3041 of 2006 connected with
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reconstruction of the said compound wall. Therefore, there
is no claim by either of the parties over any portion of the
suit schedule property, other than the compound wall in
the present lis. With this clarity in mind, the present
appeal needs to be adjudication.
16. It is an admitted fact that after the purchase of
the property from Smt.Renuakka under the deed of sale
dated 08.01.1961, K.Veeranna and D.Krishnamraj had
divided the same into two equal halves. The Southern half
portion was allotted to the share of K.Veeranna in which,
K.Veeranna started business of rice mill by constituting a
partnership firm on and from 12.12.1966 in the name and
style of M/s.Vijaya Laxmi Rice Mills. The said factum of
commencement of rice mill has not been disputed by the
defendants.
17. Infact defendant No.1 who examined as DW1 in
his deposition recorded on 16.02.2006 has admitted that
the firm M/s.Vijaya Laxmi Rice Mills was established prior
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RSA No. 3041 of 2006 connected with
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to the establishment of his partnership firm M/s.Swastik
Industries. That the said M/s.Vijaya Laxmi Rice Mills is
situated on the Southern side of the his property. That
there is a compound wall on the Southern side of his
property which goes towards South-West direction. He has
admitted that land in Sy.No.152 is on the Southern side of
the compound wall and his property is in Sy.No.151/A. He
has also admitted that for any rice mill business a
compound wall is a must. That the said M/s.Vijaya Laxmi
Rice Mills was established 15 years prior to establishment
of his firm. He admits that in the suit, the dispute is only
with regard to compound wall as the parties are claiming
their rights over the same.
18. From the aforesaid deposition, it is clear that
DW1 is completely aware of the fact that M/s. Vijaya
Laxmi Rice Mills was established 15 years prior to the
establishing of M/s.Swastik Industries and that this
probabalises existence of the compound wall without
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RSA No. 3041 of 2006 connected with
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which admittedly, the business of rice mill could not have
been carried on.
19. As rightly taken note of by the trial Court, Ex.P5
is the dissolution of firm by which all the partners of
M/s.Vijaya Laxmi Rice Mills retired from the firm and the
plaintiff continued the business. Defendant No.1-DW1 is
one of the witnesses to the said document at Ex.P5. He
has identified his signatures as witness to the said
documents and the same are marked through him as
Ex.P5(a) to P5(c). He has also deposed with regard to the
nature of the document being the division of the property
amongst the partners. He has admitted that the plaintiff
continued the business as per the said document and that
in terms of the division made therein, the property and the
business was allotted to the share of the plaintiff and that
the plaintiff has been carrying on the business ever since
the partition till date. He has further stated that M/s.Vijaya
Laxmi Rice Mills has been in existence prior to 1980 and at
least 15-20 years prior to his business. The aforesaid
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deposition of defendant No.1-DW1 further establishes the
case of the plaintiff that defendant No.1 was completely
aware of the business transaction, the division of property
of partnership firm, the plaintiff continuing the business of
rice mill.
20. Though K.Veeranna, the original owner of the
plaint schedule property and erstwhile partners of the
partnership firm has been examined as DW2 on behalf of
defendants, in the cross examination, the said witness has
admitted that the compound wall is existing since 20
years. Towards the Northern side of the said compound
wall is the property of defendants. The business of
M/s.Vijaya Laxmi Rice Mills was started in the year 1966
and that the business of defendants was started
subsequently. He has also admitted that as per Ex.P5, all
the partners except the plaintiff retired from the
partnership firm. He has admitted that a suit had been
filed in O.S.No.79/80 by the plaintiff against him and other
partners of the erstwhile firm not to interfere with the suit
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schedule property in which the said witness K.Veeranna
and others had undertaken not to interfere with the suit
schedule property. He has also admitted against the
judgment and order passed in the said suit a regular
appeal in R.A.No.22/05 was filed and the same has been
dismissed. The witness has identified the certified copy of
the said order at Ex.P17. The said witness has stated that
there is a dispute with regard to the property rights
between him and the plaintiff and that he has not filed any
suit. From the tenor of the aforesaid deposition of DW2, it
is clear that though he admits that the plaintiff being in
possession and enjoyment of the suit schedule property in
terms of Ex.P5 and there has been a prohibitory order
against him and in favour of the plaintiff as per Ex.P17,
the said witness has deliberately deposed that the
compound wall was constructed by DW1. The evidence of
DW2 would therefore come to the aid of the plaintiff than
that of the defendants.
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21. That the plaintiff has produced certified copy of
the decree passed in O.S.No.79/80 as per Ex.P16 in terms
of which the aforesaid K.Veeranna, K.Basanna, K.Ayyappa,
N.Ayyappa, K.Gundappa have been restrained from
interfering with the possession and enjoyment of the
plaintiff over the suit schedule property and as noted
above, the said judgment has been confirmed by the
judgment passed in R.A.No.22/05 at Ex.P17.
22. Another aspect of the matter as per Ex.D12, the
plan sanctioned by the Town Planning Authority,
Gangavathi, it is seen that there is a drainage 'NALA'
situated on the Southern side of the defendants' property.
As rightly appreciated by the trial Court, the property of
the defendants ends at the drainage on its Southern side
and the disputed compound wall, which is beyond the said
drainage is situated at the Northern end of the property of
the plaintiff. It cannot therefore be contended by the
defendants that his property extends up to the compound
wall including the drainage.
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23. From the aforesaid facts and circumstances of
the case and on the deposition of the parties, it is clear
that the compound wall was in existence much prior to the
incorporation and commencement of the business by the
defendants which probabalises the case of the plaintiff
regarding the compound wall having been constructed at
the time of commencement of business of firm M/s. Vijaya
Laxmi Rice Mill in the year 1966 which after its dissolution
came to the share of plaintiff who is in possession and
enjoyment of the same.
24. The trial Court has taken note of these factual
aspects of the matter and material evidence and
deposition of parties, has rightly decreed the suit of the
plaintiff. The first appellate Court however dismissed the
suit of the plaintiff by holding that the plaintiff herein has
not produced any document to show that there was
construction of compound wall. Similar is the situation with
the defendants who have also not produced the
documents with regard to their claim over compound wall.
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In the absence of these documents, the trial Court had
taken into consideration Ex.P5 and the deposition of
DWs.1 and 2 with regard to the existence of compound
wall and held preponderance of probability in favour of the
plaintiff. The first appellate Court ought not to have
reversed the said finding in the absence of any better
evidence. The first appellate Court referring to the
admission made by DW2 with regard to the existence of
compound wall since 20 years, has observed that the
admission of DW2 was not binding on the defendant. It is
to be noticed that DW2 has been produced and examined
by defendants. Any answer or evidence given by the said
witness will have to be taken into consideration in
determining the lis between the parties. That DW2 has
stated that the disputed wall was in existence since 20
years which admission first appellate Court declines to
accept. DW1 himself in his deposition as noted above has
admitted regarding commencement of M/s.Vijaya Laxmi
Rice Mills 10-15 years prior to the commencement of his
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business M/s.Swastik industries. Deposition of DW1 read
in the light of the deposition of DW2 and in the context of
execution of Ex.P5 to which DW1 is admittedly the
signatory or a witness to the established factum of
existence of compound wall, the first appellate Court has
thus erred in not taking these aspects of the matter into
consideration.
25. The only document produced by the defendants
is purported permission obtained by the defendants for the
purpose of renovation of the dilapidated compound wall on
25.09.2004, except this no other document is produced by
the defendants to substantiate their claim over the
compound wall.
26. The first appellate Court in paragraph 14 of the
impugned judgment referring to judgment reported in AIR
1974 Rajasthan 144 wherein it is observed that when
constructions were not proved, demolition of such
impugned constructions should not be granted. Relying
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upon the same, the first appellate Court has held that
since the plaintiff has not produced any document
regarding construction of compound wall and also PW2
not knowing the area on which the oil mill and rice mill
were constructed and also the length of the compound
wall, has come to the conclusion that the trial Court should
not have given relief of mandatory injunction. The said
decision is dealt with in respect a dispute with regard to
construction of a structure requiring demolition thereof. In
the instant case, there is no dispute between the parties
with regard to existence of compound wall. The only
dispute as already noted above is whom does it belong to.
Defendants have admitted that they were attempting to
renovate the wall by obtaining permission from the
municipal authorities as per Ex.D16. Since it has been
brought on record that the said compound wall was in
existence much prior to the commencement of business by
the defendants, the issuance of mandatory injunction by
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RSA No.3042 of 2006
the trial Court for restoration of the demolished Northern
compound wall, cannot be found fault with.
27. For the aforesaid reasons and analysis, this
Court is of the considered view that the first appellate
Court was not justified in concluding that the plaintiff has
not proved his title and possession to the suit schedule
property and was not justified in concluding the admission
made by DW2 could not be taken as admission of the
party. The finding of the first appellate Court regarding not
considering the case of the plaintiff for want of records
regarding dissolution of partnership firm was unwarranted.
28. In the circumstance, the judgment and decree
passed by the trial Court is justified and requires to be
confirmed. The substantial questions of law are thus
answered accordingly in favour of the plaintiff.
29. In the result, appeals are allowed and the
judgment & order dated 19.08.2006 passed in R.A.Nos.39
and 35 of 2006 by the Civil Judge (Sr.Dn.), Gangavathi is
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RSA No. 3041 of 2006 connected with
RSA No.3042 of 2006
set aside. The judgment and decree dated 20.04.2006
passed in O.S.Nos.117 and 130 of 2004 on the file of the
Additional Civil Judge (Jr.Dn.) and JMFC, Gangavathi is
confirmed.
Sd/-
JUDGE
KGK
