Karnataka High Court

Fakirappa, S/O.Neelappa Anavatti vs Guddappa, S/O.Neelappa Anavatti on 28 November, 2023

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

                                             -1-
                                                   NC: 2023:KHC-D:13938
                                                       RSA No. 5357 of 2009




                         IN THE HIGH COURT OF KARNATAKA,
                                 DHARWAD BENCH

                    DATED THIS THE 28TH DAY OF NOVEMBER, 2023

                                        BEFORE

                 THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

                      REGULAR SECOND APPEAL NO.5357/2009

            BETWEEN:

            1.   FAKIRAPPA,
                 S/O.NEELAPPA ANAVATTI,
                 AGED ABOUT: 62 YEARS,
                 OCC:AGRICULTURE,
                 R/O: HAVERI, PIN: 580 12.

            2.   SRIDHAR
                 S/O. FAKKIRAPPA ANAVATTI,
                 AGE: ABOUT 36 YEARS,
                 OCC:BUSINES,
                 R/O: HAVERI, PIN: 580 12.
                                                               ...APPELLANTS
            (BY SRI SADIQ N. GOODWALA, ADVOCATE)

            AND:

Digitally   GUDDAPPA
signed by
SUJATA      S/O.NEELAPPA ANAVATTI,
SUBHASH     AGED : ABOUT 79 YEARS,
PAMMAR
            OCC:RETD.TEACHER AND AGRICULTURE,
            R/O: HAVERI.
                                                              ...RESPONDENT
            (BY SRI B. M. PATIL, ADVOCATE)

                  THIS RSA IS FILED UNDER SECTION 100 OF CIVIL
            PROCEDURE CODE, 1908 AGAINST THE JUDGEMENT & DECREE DTD:
            20/02/2009 PASSED IN R.A.NO. 8/2006 ON THE FILE OF THE ADDL
            CIVIL JUDGE (SR.DN.) & JMFC, HAVERI, DISMISSING THE APPEAL,
            FILED AGAINST THE JUDGEMENT AND DECREE DTD: 05/12/2005
            PASSED IN O.S.NO:150/1997 ON THE FILE OF THE CIVIL JUDGE
            (JR.DN)& J.M.F.C.HAVERI, DECREEING THE SUIT FILED FOR
            MANDATORY INJUNCTION AND CONSEQUENTIAL RELIEF OF
            PERMANENT INJUNCTION.
                                 -2-
                                      NC: 2023:KHC-D:13938
                                            RSA No. 5357 of 2009




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

                          JUDGMENT

This regular second appeal is filed by the defendants

challenging the judgment and decree dated 20.02.2009

passed in R.A.No.8/2006, by the Addl. Civil Judge (Sr.Dn.)

& JMFC, Haveri,(hereinafter referred to as the First

Appellate Court), confirming the judgment and decree in

O.S.No.150/1997, dated 05.12.2005 passed by the Civil

Judge (Jr.Dn.) and JMFC, Haveri, (hereinafter referred to

as the trial Court).

2. For the purpose of convenience, ranking of the

parties is referred to as per their status before the trial

Court.

3. The plaintiff had filed the suit for mandatory

injunction and consequently for permanent injunction.

4. The plaintiff and defendant No.1 are brothers. The

deceased father of plaintiff and defendant No.1 namely

Neelappa Anavatti has executed a Will in favour of his four

NC: 2023:KHC-D:13938

male children on 05.12.1983 and died on 26.12.1983. On

the basis of the said Will, their names were entered in the

records. It is stated that by virtue of the said Will, the

plaintiff has become the owner of suit schedule 'A'

property and defendant No.1 has become the owner of suit

schedule 'B' property. There is a compound wall in

between the properties of plaintiff and defendant No.1. It

is the case of the plaintiff that in the said Will, a condition

is put that the plaintiff and defendant No.1 shall construct

a common wall in between the properties. But defendant

No.1 had not come forward to construct common wall

along with plaintiff, but rather tried to encroach the

property of the plaintiff. Therefore, without any

alternative, the plaintiff was constrained to file a suit for

mandatory injunction.

5. It is the case of the plaintiff that the Will relying upon

by the plaintiff is not the Will executed by his father

Neelappa. Therefore, submitted that the said Will is

concocted one. Hence, he registed the suit.

NC: 2023:KHC-D:13938

6. It is the pleading of the defendants that the wall in

question belongs to defendant No.1. Therefore, submitted

that the plaintiff has filed a false suit.

7. The trial court has decreed the suit and mandatory

injunction is granted against the defendants to construct

"AGB" portion. The stone wall has to be constructed by the

plaintiff and defendant No.1 equally and make vahivat of

the same as a joint owners within six months. Further, it is

directed that the if, defendant No.1 has failed to construct

his portion of common wall, the plaintiff is at liberty to get

it constructed by appointing the Court Commissioner

through the court and construct the compound wall and

the expenses incurred thereon, plaintiff can recover half of

the expenses from the defendants. Further, the trial court

has ordered that the defendants are permanently

restrained from interfering with the peaceful possession

and enjoyment of the 'GB' wall or 'GBCK' portion without

the consent of the plaintiff, he should not demolish the

'GB' compound common wall and also not to obstruct

NC: 2023:KHC-D:13938

'GBCK' portion of the plaintiff. Against this judgment, the

defendants have preferred appeal before the First

Appellate Court and the appeal is also dismissed.

8. Against the concurrent findings of both the courts

below, the defendants have filed Regular Second Appeal.

9. Heard the learned counsel for the parties and

perused the material on records.

10. This Court while admitting the appeal on 27.09.2012

has framed the following substantial questions of law:

i. Whether the courts below were justified in decreeing the bare injunction suit without seeking relief of declaration?

ii. Whether the courts below are justified in believing the unregistered will without proving it as Evidence Act?

11. The following are the admitted facts emerged.

1. The Plaintiff and defendant No.1 are brothers. Defendant No.2 is son of defendant No.1.

NC: 2023:KHC-D:13938

2. Plaintiffs are contending that their father Neelappa has executed Will-Ex.P.6 dated 05.12.1983 thereby both plaintiffs and defendant No.1 are to construct the compound wall.

12. But, the defendants are contending that this is not

the Will what plaintiffs are produced as per Ex.P6. The

plaintiffs have produced the Will which is executed by their

father Neelappa. But, the defendants have not produced

any Will. Admittedly, both attesting witnesses and scribe

of the Will were no more at the time of testing the Will.

But, defendants have not produced any Will. The

defendants are saying that the wall is not a common wall.

But, it is the property of the defendants. But, it is the

contention of the plaintiffs that on the basis of the Will

Ex.P.6, the wall is a common wall and directed both

plaintiffs and defendant No.1 to enjoy the said wall as

common wall. Based on the Ex.P6-Will entries were made

in the revenue records and CTS extracts.

13. The defendant No.1 admitted in the cross

examination that his father Neelappa has executed Will

NC: 2023:KHC-D:13938

but, Ex.P6 is not the Will. But, the defendants have not

produced what is the Will executed by Neelappa. Plaintiffs

have produced Ex.P6-Will to the Court. Therefore, this

probabalizes that father Neelappa has executed will-Ex.P6

and the plaintiffs are not claiming exclusive ownership

over the common wall but their pleading is that their

father Neelappa has commanded both plaintiffs and

defendants to use the wall as common wall. Therefore,

this proves the facts on all it's preponderance of

probability that father Neelappa had executed Will and the

wall is common wall to be used by both plaintiffs and

defendants.

14. The defendants have not pleaded that there are

suspicious circumstances over execution of Ex.P6-Will and

when the defendants have stated that their father

Neelappa has executed different will other than Ex.P6,

defendant No.1 would have produced another Will, but has

not produced. Therefore, this proves that there is common

wall between the properties of plaintiffs and defendant

NC: 2023:KHC-D:13938

No.1. Therefore, the trial court has correctly appreciated

the evidence on record and by well reasoned order

decreed the suit and the same is confirmed by the First

Appellate Court is correct and needs to be confirmed.

Therefore, there is no perversity in appreciating the

evidence on record by both the courts below and

therefore, both the courts below have justified in

decreeing the suit and both courts are justified in believing

the Ex.P6-Will. Accordingly, substantial question of law are

answered in favour of plaintiffs. Therefore, the appeal filed

by the defendants is liable to be dismissed.

15. Hence, I proceed to pass the following:

ORDER

i) Appeal is dismissed.

ii) Judgment and decree dated 20.02.2009

passed in R.A.No.8/2006 by the Addl. Civil Judge

(Sr.Dn.) & JMFC, Haveri, which has confirmed the

judgment and decree passed in O.S.No.150/1997,

NC: 2023:KHC-D:13938

dated 05.12.2005 by the Civil Judge (Jr.Dn.) and

JMFC, Haveri, is hereby affirmed.