Smt Saraswathi W/O Jayadevappa vs K N Thirumala Raj Urs
2023 Latest Caselaw 41 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF JANUARY, 2023

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A NO. 3055 OF 2006(INJ)

BETWEEN:

SMT SARASWATHI
SINCE DECEASED BY LRs

A. M.J.KUMAR,
S/O SRI.M.J.JAYADEVAPPA
AGED ABOUT 57 YEARS,
RESIDING AT SPENCER ROAD,
NEAR LIC OFFICE,
CHIKMAGALUR-577101.

B. SMT. MAMATHA,
W/O SRI.T.V.DHANANJAYA (BABU),
AGED ABOUT 46 YEARS,
RESIDING AT HANUMALAPURA,
TAVAREKERE POST,
CHENNAGIRI TALUK,
DAVANAGERE DISTRICT-577213.

C. SMT.M.J.MADHUMATHI,
W/O SRI.M.N.KARISIDDAPPA,
AGED ABOUT 53 YEARS,
RESIDING AT NO.1A, SUBRAMANYA NILAYA,
BRINDAVAN LAYOUT,
SUBRAMANYAPURA POST,
BANGALORE-560061.
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D. SMT.M.J.LEELAVATHI,
W/O SRI.SHANKARAPPA, C.S.
AGED ABOUT 55 YEARS,
RESIDING AT NO.28/1, NEW POLICE STATION ROAD,
K.V.MUNIYAPPA LAYOUT, K.R.PURAM,
NEAR M.M.CHOULTRY,
BANGALORE-560036.

                                             ...APPELLANTS

(BY SRI.N SHANKARANARAYANA BHAT, ADVOCATE)

AND:

1. K N THIRUMALA RAJ URS
MAJOR, S/O LATE MARIRAJA URS
R/A AGRAHARA ROAD, CHICKMAGALUR

2. H R RAJASHEKHAR
MAJOR, S/O M.RAMALINGAIAH
R/A AGRAHARA ROAD, CHIKCMAGALUR

3. KARTHIKERE PUTTARAJ URS
MAJOR, R/A HOSAMANE ROAD, CHICKMAGALUR CITY

4. CHANDRASHEKHAR
MAJOR, R/A HOSAMANE ROAD, CHICKMAGALUR CITY

                                            ...RESPONDENTS

(BY SRI.K N THIRUMALA RAJ URS(PARTY-IN-PERSON) FOR R1;
R2 SERVED & UNREPRESENTED;
V/O DTD 27-08-2009 APPEAL ABATED AGAINST R3;
V/O DTD 18.03.2016 APPEAL ABATED AGAINST R4)

     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT    &   DECREE    DATED    4.8.2006  PASSED    IN
R.A.NO.267/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-II, CHIKMAGALUR, ALLOWING THE APPEAL AND
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SETTING THE JUDGEMENT AND DECREE DATED 17.11.2001
PASSED IN OS.NO. 427/1996 ON THE FILE OF THE ADDL.CIVIL
JUDGE (JR.DN.), CHIKMAGALUR.

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

                            JUDGMENT

The captioned second appeal is filed by the plaintiff

feeling aggrieved by the divergent findings of the Courts below

wherein Appellate Court has allowed the appeal filed by the

defendants and the plaintiff's suit for injunction simplicitor is

dismissed. These divergent findings are under challenge by

the plaintiff.

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

as per their rank before the Trial Court.

3. The plaintiff has instituted the present suit for

injunction simplicitor seeking perpetual injunction against the

defendants. The plaintiff has alleged that on 06.11.1996, the

defendants tried to encroach over the plaintiff's property by

damaging the existing compound wall. The present suit is

filed alleging that defendants are rich, influential and backed

by anti social elements and there is every possibility that they

would demolish the existing compound wall and hence, the

present suit.

4. The defendant No.1 tendered appearance and filed

written statement and stoutly denied the entire averments

made in the plaint. The defendant No.1 disputed the plaintiff's

title over the suit schedule property and also disputed its

measurements. The defendant No.1 contended that plaintiff

has encroached 10 feet passage belonging to the municipality

and therefore, has put up a compound wall by encroaching

over the municipality property and inspite of there being

serious protest by defendant Nos.1 and 2, the plaintiff has

raised the height of the compound wall to 10 feet. The

defendants alleged that plaintiff by encroaching has left only

1½ feet vacant space and therefore, the highhandedness of

plaintiff has affected the easementary rights of defendants and

hence, sought for dismissal of the suit.

5. The plaintiff and defendants to substantiate their

respective claim, have led in oral and documentary evidence.

6. The Trial Court having examined the material on

record, answered issue Nos.1 to 3 in the affirmative. The Trial

Court held that plaintiff has succeeded in proving her lawful

possession over the suit schedule property. The Trial Court

also held that plaintiff has succeeded in proving the alleged

interference by the defendants and proceeded to decree the

suit.

7. The defendants feeling aggrieved by the judgment

and decree passed in O.S.No.427/1996 preferred appeal in

R.A.No.267/2006 while defendants preferred appeal in

R.A.No.315/2006 questioning the judgment and decree passed

in O.S.No.426/1996 which was also for bare injunction filed by

the defendants. The said suit was also dismissed. Both the

appeals were clubbed and the Appellate Court having assessed

oral and documentary evidence on record, however, took a

divergent view in regard to the controversy between the

parties. The Appellate Court while examining Ex.D-2 which is

a commissioner's report tendered in bare suit for injunction

filed by the defendants has come to conclusion that properties

held by plaintiff and defendants is divided by a common

passage measuring 10 feet. Therefore, referring to these

rebuttal evidence, Appellate Court was of the view that

plaintiff is not entitled for injunction. The Appellate Court has

also held that the present suit filed by plaintiff is bad for non-

joinder of necessary party. The Appellate Court was of the

view that municipality is a necessary party and therefore, held

that the present suit for injunction without impleading the

municipality is not maintainable. Having drawn adverse

inference against the plaintiff, the Appellate Court proceeded

to hold that defendants have not encroached over the

plaintiff's property and therefore, proceeded to hold that

plaintiff is not entitled for perpetual injunction against the

defendants. Consequently, the appeal filed by the defendants

in R.A.No.267/2006 was allowed. Consequently, suit filed by

the plaintiff was dismissed. However, the decree passed in

the connected suit filed by defendant in O.S.No.426/1996 was

confirmed by the Appellate Court. The appeal filed by the

defendants questioning the judgment and decree passed in

O.S.No.426/1996 was also dismissed.

8. The present captioned appeal is filed by the plaintiff

questioning the findings of the Courts below arising out of

R.A.No.267/2006.

9. This Court vide order dated 29.02.2008 was

pleased to admit the appeal on the following substantial

question of law:

"Whether the lower Appellate Court was justified in holding that though the grievance of the plaintiff was his compound wall is being damaged by the defendant still holding the encroachment alleged is not proved?"

10. Heard learned counsel appearing for the

appellant/plaintiff. The defendants have not chosen to contest

the appeal.

11. The short point that needs consideration at the

hands of this Court is, as to whether the Appellate Court erred

in dismissing the suit without examining the actual

controversy between the parties. The present suit for bare

injunction is filed by the plaintiff under an apprehension that

defendants are likely to cause damage to the existing

compound wall put up by plaintiff. While defendants'

grievance is that plaintiff has highhandedly increased the

height of compound wall which was in existence from 6 feet to

10 feet.

12. Now para 6 of the written statement would clinch

the entire controversy between the parties. The existence of

compound wall over the plaintiff's property is not in dispute.

The defendants are alleging that on account of increase of

height of the compound wall, his easementary rights are being

affected. So what probably presupposes is that defendants

are not happy with the plaintiff's act of increasing the height of

compound wall. The defendants are feeling aggrieved by the

increase of height of compound wall and probably it appears

that there was some exchange of words between plaintiff and

defendants who are adjoining owners. Therefore, plaintiff

apprehending that there is likelihood of defendants taking law

in their hands has come up with this bare suit for injunction

seeking protection against the defendants from demolishing

the compound wall. It is in this background, this Court is of

the view that para 6 of the written statement would be

relevant and the same is culled out as under:

"6. That the act of the plaintiff is highly arbitrary and his act is the arrogant character of the plaintiff. The plaintiff has no right whatsoever to exceed her measurements shown in the schedule property. Even otherwise the schedule shown by the plaintiff is defective. That the plaintiff being influenced by the local politicians and also the

Municipal authorities she is over riding the mandatory provisions to be followed in putting a compound has clearly violated the terms of the license. Though the license discloses that she can erect the compound to a height of six feet she has erected compound wall to a height a more than 8 feet, virtually blocking the air, light and using the passage which they were using from the time immemorial and from the days of their predecessors in title."

13. On plain reading of the averments made at para 6

of the written statement, the existence of compound wall is

not at all in dispute. Now whether this compound wall is put

up by plaintiff by encroaching over the common passage is not

the subject matter of the suit. The plaintiff is seeking

perpetual injunction to restrain the defendants from

encroaching over the suit schedule property by damaging the

existing compound wall. If defendants have admitted in

unequivocal terms at para 6 of the written statement in regard

to existence of the compound wall, then I am of the view that

the entire approach adopted by the Appellate Court is found to

be patently erroneous. Appellate Court has missed out the

actual controversy between the parties. It has proceeded on

some insignificant and irrelevant incidents which in fact had no

relevancy to the dispute between plaintiff and defendants.

The plaintiff apprehends that the defendants may demolish the

existing compound wall while defendants are asserting that

plaintiff had no right to increase the height of the compound

wall. If the compound wall put up by plaintiff is in

contravention to rules and bye-laws of local Act, then

defendants can have recourse and seek remedy in the manner

provided under law and therefore, cannot take law in their

hands. Therefore, this Court is of the view that the Trial Court

was justified in granting perpetual injunction. The findings

and conclusions recorded by the Trial Court are very casually

reversed by the Appellate Court. The findings of the Appellate

Court that there is a passage measuring 10 feet between

plaintiff's property and defendants' property was totally

unwarranted. The existence of compound wall surrounding

the plaintiff's property is not in dispute. Therefore, any

encroachment made by the plaintiff was not the actual

controversy between the parties. Therefore, the substantial

question of law is answered in the negative. The Appellate

Court erred in reversing the decree for perpetual injunction

granted in favour of the plaintiff. If defendants admit the very

existence of compound wall, then plaintiff is entitled to

protection unless the construction of compound wall is held to

be in violation of rules and regulations of local act.

14. For the foregoing reasons, I pass the following:

ORDER

(i) The second appeal is allowed;

(ii) The judgment and decree of the Appellate Court passed in R.A.No.267/2006 is set aside. Consequently, the judgment and decree passed by the Trial Court in O.S.No.427/1996 stands restored.

Sd/-

JUDGE CA