Karnataka High Court
Sri M.A Vijayendra Murthy vs Sri T R Nagendra on 12 December, 2023
-1-
NC: 2023:KHC:45098
RSA No. 913 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 913 OF 2016 (DEC/INJ)
BETWEEN:
1. SRI. M.A VIJAYENDRA MURTHY
S/O OF LATE M. ANNAPPA SHETTY
SINCE DAED BY HIS LRS
1(A). SMT. NIRMALA VIJAYENDRA MURTHY,
W/O LATE M.A VIJAYENDRA MURTHY,
C/O SRI. M.V. SAGAR,
15TH MAIN, 24TH CROSS,
NEAR BMMIT COLLEGE, BSK 2ND STAGE,
VIC COLLEGE, BANGALORE,
BANASHANKARI 2ND STAGE,
BANGALORE - 70.
Digitally signed 2. SRI. M.V. SAGAR,
by SUCHITRA AGED 28 YEARS,
MJ
Location: HIGH S/O OF SRI.M.A. VIJAYENDRA MURTHY,
COURT OF RESIDING AT M.G.ROAD
KARNATAKA
CHIKMAGALUR - 577 101.
...APPELLANTS
(BY SRI. C.N. KAMATH, ADVOCATE)
AND:
SRI. T.R. NAGENDRA,
AGED 72 YEARS,
S/O OF LATE T.K. RAMAIAH SHETTY,
RESIDING AT BELT ROAD,
-2-
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RSA No. 913 of 2016
PROP: LAVANYA SHOW ROOM,
M.G. ROAD, CHIKMAGALUR - 577 101.
...RESPONDENT
(BY SRI. GIRISH B. BALADARE, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DATED 8.2.2016 PASSED IN
R.A.NO.7/2012 ON THE FILE OF THE I ADDL. SESSIONS
JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 2.12.2011
PASSED IN O.S.NO.48/2005 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE & JMFC, CHIKMAGALORE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful plaintiffs, who have questioned the
concurrent judgments of the Courts below, wherein
plaintiffs suit seeking relief of declaration to declare that
the suit schedule wall is exclusive wall of the plaintiffs and
for consequential relief of injunction to restrain defendant
from demolishing and reconstructing the suit schedule wall
is dismissed by both the Courts.
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2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. Facts leading to the case are as under:
The present suit is filed by contending that the suit
wall, measuring 2 feet north-south and 110 feet east-
west, is their exclusive wall. Plaintiffs claimed that they
are the owners in possession and enjoyment over the suit
schedule property and it was allotted to their share under
a registered partition deed dated 13.12.2004. Plaintiffs are
asserting that to the north of the residential house owned
by the plaintiffs there is a passage that is exclusively
owned by them and to the further north of the passage,
there is a suit schedule wall that is exclusively owned by
the plaintiffs. Hence, the present suit is filed, alleging that
defendant is intending to demolish the northern wall, i.e.,
suit wall and he is trying to encroach over the passage
exclusively owned by the plaintiffs.
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4. Defendant, on receipt of summons, tendered
appearance, filed written statement and stoutly denied the
claim made by the plaintiffs in regard to the suit wall.
Defendant, on the contrary, claimed that his father has
purchased the property measuring 16 x 175 feet bearing
Municipal assessment No.3302/3302/2305 under a
registered sale deed dated 03.11.1935. The defendant
further contended that there was a partition in the family
between the father of defendant and his brothers and as
per the partition deed dated 16.06.1966, the above-suit
property is allotted to his share. The defendant further
contended that the southern suit wall is exclusively owned
by him and that there is a common passage that divides
plaintiffs property and defendant property. The defendant
further contended that plaintiffs have no exclusive right
over the common passage and hence, prayed for dismissal
of the suit.
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5. Plaintiffs and defendant to substantiate their
respective claim have let in oral and documentary
evidence.
6. The Trial Court, having meticulously examined
the pleadings and oral and documentary evidence coupled
with admissions elicited in cross-examination of plaintiff
No.1, answered issue No.1 in the negative and issue No.3
in the affirmative. While answering issue No.1 in the
negative and issue No.3 in the affirmative, the Trial Court
held that plaintiffs have failed to prove that the suit wall
and the passage situated towards the north exclusively
belong to the plaintiffs. While answering issue No.3 in the
affirmative, the Trial Court held that defendant has
succeeded in proving that the suit schedule wall is
exclusively owned by him. The Trial Court has also culled
out the admissions elicited in cross-examination of plaintiff
No.1, who has admitted that defendant's residential house
and shop are bounded by a northern wall. He has also
admitted that the entire residential house and shop of
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defendant, have a roof over this suit wall. P.W.1 has
further admitted that this wall is in existence since the
beginning. He has further admitted that if the said suit
wall is removed, then the entire structure of the property
owned by the defendant would collapse. The Trial Court,
while referring to the pleadings and oral and documentary
evidence, also found that it is not the case of the plaintiffs
that the property owned by them is supported by the suit
wall. Referring to all the significant details, the Trial Court
proceeded to decree the suit by recording a categorical
finding that the suit wall is the exclusive wall of defendant.
7. Plaintiffs, feeling aggrieved by the judgment
and decree of the Trial Court, preferred an appeal before
the Appellate Court. The Appellate Court, as a final fact
finding authority, has re-assessed the entire material on
record. On re-appreciation of pleadings and oral and
documentary evidence, the Appellate Court was also of the
view that the suit wall, which is admittedly the southern
wall of defendant's property, is his exclusive wall and
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plaintiffs cannot lay a claim. Consequently, appeal is
dismissed.
8. Heard learned counsel appearing for the
plaintiffs. Perused the concurrent findings of the Courts
below.
9. It is quite interesting to note that plaintiffs are
asserting that the suit wall is exclusively owned by them.
From the pleadings and oral and documentary evidence, it
is clearly evident that plaintiffs and defendant's property is
divided by a passage. Therefore, plaintiffs property has an
independent wall on the northern side and to the north of
plaintiffs property there is a passage and to the further
north of the passage, defendant's property is situated.
The alleged claim of plaintiffs over the suit wall, which is
the southern wall of defendant's property, is divided by a
passage between plaintiffs and defendant's property.
Plaintiffs have admitted that the entire roof of defendant's
property on the southern side is over the suit wall.
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Plaintiffs have further admitted that this wall is in
existence since time immemorial. If there is an open space
between plaintiffs and defendant's property, this Court
enable to understand as to how plaintiffs can lay a claim
over the wall of defendant's property. Both the Courts,
referring to the evidence on record coupled with
admissions elicited in cross-examination of plaintiffs, have
rightly come to the conclusion that the suit wall, which is
part and parcel of defendant's property, is the exclusive
wall of defendant. If there is an open space dividing
plaintiffs and defendant's property, plaintiffs cannot claim
that the northern wall of defendant's property is their
exclusive wall. It seems that pursuant to the dismissal of
the suit filed by defendant who has asserted right over the
passage by contending that it is a common passage,
plaintiffs have filed the present suit by virtually laying a
claim over one of the walls, which is part and parcel of
defendant's property.
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10. Both the Courts, referring to evidence let in by
the plaintiffs and defendant are justified in recording a
finding that the suit wall is part and parcel of defendant's
property and plaintiffs cannot assert right over the suit
wall. If the findings and conclusions recorded by both the
do not suffer from any infirmities, no substantial question
of law would arise for consideration. The regular second
appeal is devoid of merits and accordingly stands
dismissed.
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
CT: BHK
