Sri. Narayan S/O Sankus ... vs Sri Girish S/O Balakrishna Pai
2022 Latest Caselaw 8512 Kant

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                                                      RSA No. 100515 of 2021


                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 10TH DAY OF JUNE, 2022

                                            BEFORE
                              THE HON'BLE MR JUSTICE E.S.INDIRESH
                         REGULAR SECOND APPEAL NO. 100515 OF 2021 (INJ-)
                   BETWEEN:

                   SRI. NARAYAN S/O SANKUS HARIKANTRA
                   AGE. 63 YEARS, OCC. FISHERMAN
                   R/O. BALALE, TQ. ANKOLA-581344
                   DIST. UTTARA KANNADA

                                                                 ...APPELLANT
                   (BY SRI. RAJASHEKAR GUNJALLI, ADVOCATE)
                   AND:
                   1.    SRI GIRISH S/O BALAKRISHNA PAI
                         AGE. 41 YEARS,
                         OCC. AGRICULTURIST AND TEA SHOP OWNER
                         R/O. BALALE, TQ. ANKOLA-581344
                         DIST. UTTARA KANNADA
                   2.    GANESH S/O BALAKRISHNA PAI
                         AGE. 35 YEARS,
                         OCC. AGRICULTURIST AND TEA SHOP OWNER
SHIVAKUMAR
                         R/O. BALALE, TQ. ANKOLA-581344
HIREMATH
                         DIST. UTTARA KANNADA
Digitally signed
by SHIVAKUMAR
HIREMATH
Date: 2022.06.14
11:49:58 -0700
                                                           ...RESPONDENTS

                   (BY SRI. RAVI HEGDE, ADVOCATE)

                         THIS RSA IS FILED UNDER SECTION 100 OF CPC,
                   AGAINST THE JUDGMENT AND DECREE DATED 22.09.2021
                   PASSED IN R.A.NO.3/2018 ON THE FILE OF THE SENIOR CIVIL
                   JUDGE,     ANKOLA,   DISMISSING    THE    APPEAL    AND
                   CONFIRMING THE JUDGMENT AND DECREE DATED
                   28.02.2018 PASSED IN O.S. NO.75/2013 ON THE FILE OF THE
                   CIVIL JUDGE, ANKOLA, DECREEING THE SUIT FILED FOR
                   PERMANENT AND MANDATORY INJUNCTION.
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                                            RSA No. 100515 of 2021


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

                             JUDGMENT

This Regular Second Appeal is preferred by the defendant,

challenging the judgment and decree dated 22.09.2021 passed in

R.A.No.3/2018 on the file of the Senior Civil Judge at Ankola

(hereinafter referred to as 'the First Appellate Court', for brevity),

confirming the judgment and decree dated 28.02.2018, passed in

OS No.75/2013 on the file of the Civil Judge at Ankola (hereinafter

referred to as 'the trial Court', for brevity), decreeing the suit of the

plaintiffs.

2. For the sake of convenience, the parties are referred to

as per their ranking before the trial Court.

3. It is the case of the plaintiffs that, the plaintiffs have

succeeded to the property by inheritance from their father -

Balakrishna Pai. It is further averred in the plaint that, the schedule

property in Sy.No.207A/1 and 207A/2 was purchased by the father

of the plaintiffs from one Sri.Thundiyam Kulito Kunjaman George to

an extent to 6 guntas, out of 9 guntas. These two survey numbers

are abutting the land of the plaintiffs on the eastern side.

RSA No. 100515 of 2021

Thereafter, there were certain dispute between the father of the

plaintiffs and the erstwhile owner of the land -Thundiyam Kulito

Kunjaman George, with regard to the boundary and in this regard,

the said Thundiyam has filed O.S.No.56/1995 claiming the relief of

possession of the encroached area against the father of the

plaintiffs. In the said suit, a compromise was entered into between

the parties on 30.08.2002 and the same has reached finality. It is

stated in the said compromise petition about that existence of the

compound wall situated at a distance of 3½ feet from the plaintiffs'

building on the western side and it was declared the land of the

plaintiff in that suit to an extent of 3½ feet from the western wall of

their building bearing No.184 and it is also declared that the land

that lies on western side belongs to the defendant therein, who was

the father of the plaintiffs in OS No.75/2013. Accordingly, the

plaintiffs have filed a suit against the defendant seeking relief of

permanent and mandatory injunction against the defendants

alleging encroachment.

4. On service of notice, defendant entered appearance

and filed detailed written statement denying the averments made in

the plaint.

RSA No. 100515 of 2021

5. It is the specific defence of the defendant that the

identification of the suit property in question is in dispute and

therefore, the judgment and decree in O.S.No.56/1995 is not

binding on the defendant as the said suit was filed seeking

possession and questioning of the encroachment made therein.

Accordingly defendant sought for dismissal of the suit.

6. In order to establish their case, plaintiff No.1 was

examined as PW1 and produced 49 documents and the same were

marked as Exs.P1 to P49. On the other hand, defendant was

examined as DW1 and got marked two documents as Exs.D1 and

D2. The trial Court after considering the material on record, by

judgment and decree dated 28.02.2018, decreed the suit and as

such, restrained the defendant from carrying out construction work

on the eastern boundary of land bearing survey No.230B/2 and

accordingly, directed the defendant to demolish the new compound

wall by issuing the mandatory injunction.

7. Feeling aggrieved by the same, defendant has

presented R.A.No.3/2018 on the file of the First Appellate Court

and the said appeal was resisted by the plaintiffs. The First

Appellate Court after re-appreciating the material on record,

RSA No. 100515 of 2021

dismissed the appeal, consequently, judgment and decree dated

28.02.2018 passed in O.S.No.75/2013 was confirmed. Feeling

aggrieved by the same, the defendant has presented this appeal.

8. Learned counsel appearing for the petitioner,

contended that, the finding recorded by the trial Court based on the

oral and documentary evidence is far from truth and therefore, he

argued that the interference is called for in this appeal. He further

contended that, both the Courts below have not properly

appreciated the compromise decree in OS No.56/1995, which is

not binding on the appellant and therefore, he argued that the

interference is called for in this appeal.

9. Per contra, learned counsel appearing for the

respondent, supports that judgment and decree passed by both the

Courts below and submitted that the father of the plaintiff had

purchased the suit schedule property from its owner Thundiyam

Kulito Kunjaman George and the existence of 3 ½ feet was proved

in the said suit. In that view of the matter, he argued that impugned

judgment and decree passed by the Courts below requires to be

confirmed in this appeal.

RSA No. 100515 of 2021

10. In the light of the submissions made by the learned

counsel appearing for the parties, I have carefully considered the

finding recorded by the trial Court. Perusal of the same would

indicate that, plaintiffs have the filed a suit for permanent and

mandatory injunction against the defendants. It is the case of the

plaintiffs that, the father of the plaintiff has purchased part of the

schedule property from its erstwhile owner, one Sri.Thundiyam

Kulito Kunjaman George. Thereafter, certain dispute arouse

between the father of the plaintiffs and his vendor in

O.S.No.56/1995 and the said suit came to be compromised

between the parties on 30.08.2002 and the same has reached

finality.

11. Perusal of the finding recorded and looking into the

settlement arrived at in the said suit would indicate that, the

plaintiffs are in possession of the schedule property and in the said

suit, relief was granted to the defendant therein (father of the

plaintiffs) with regard to an extent of 3½ feet from the Western side.

In that view of the matter, the trial Court taking into consideration of

the factual aspects on record as well as the report of the

Commissioner, produced at Ex.D1, it could be concluded that there

RSA No. 100515 of 2021

was compound wall during the passing of the decree in

O.S.No.56/1995 and same is considered therein. However,

perusal of the evidence of the parties, particularly the evidence of

DW1 and on perusal of Exs.D1 and D2, would indicate that the

defendant in the present suit failed to show that there was no

compound wall earlier to the purchase of the said property by the

father of the plaintiffs. Therefore, the trial Court rightly answered

issue No.1 in favour of the plaintiffs holding that the plaintiffs have

proved that their father and the vendor of their father erected a

compound wall at a distance of 3½ feet from the western wall of the

defendant's building and therefore, the trial Court after appreciating

the entire material on record rightly decreed the suit.

12. Insofar as the finding recorded by the First Appellate

Court, wherein the First Appellate Court after re-appreciating the

entire material on record had come to a conclusion that DW1 has

admitted the Commissioner's report, which fortifies the existence of

the wall and in that view of the matter, the First Appellate Court

taking into account the Commissioner's report along with the

sketch prepared by the Commissioner and same would

RSA No. 100515 of 2021

corroborate the existence of the earlier compound wall as well as

the interference made by the defendants.

13. Therefore, I am of the view that both the Courts below

have appreciated the entire material on record taking into account

the oral and documentary evidence produced by the parties and

the same is in accordance with law and as such, I do not find any

merit in this appeal. It is also stated that, as the appellant herein

has not made out a case for framing of substantial question of law

as required under Section 100 of CPC, and further both the Courts

below have concurrently held against the appellant herein that the

compound wall existing prior to the compromise decree in

O.S.No.56/1995 and therefore the arguments advanced by the

learned counsel appearing for the appellant cannot be accepted.

In the result, appeal fails.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

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