Karnataka High Court
Veerabhadraiah vs Makbul Unnisa on 12 October, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:37674
RSA No. 1277 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1277 OF 2021 (INJ)
BETWEEN:
1. VEERABHADRAIAH
S/O MAHADEVAIAH
AGED ABOUT 41 YEARS
2. JAYAKUMAR
S/O MAHADEVAIAH
AGED ABOUT 38 YEARS
BOTH ARE R/AT
MAYASANDRA VILLAGE
MAYASANDRA HOBALI,
TURUVEKERE TALUK,
TUMKUR DISTRICT - 572227
...APPELLANTS
Digitally signed
by SHARANYA T (BY SRI B.G. VIJAYAKUMARA SWAMY, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
MAKBUL UNNISA
W/O ABDUL JABBAR
DEAD BY HER LRS
1. FAZALUDDIN
AGED ABOUT 68 YEARS
2. SHAMSHUDDIN
AGED ABOUT 66 YEARS
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NC: 2023:KHC:37674
RSA No. 1277 of 2021
3. NAZEERUDDIN
AGED ABOUT 64 YEARS
4. MUNVARA PASHA
AGED ABOUT 62 YEARS
5. FARIDA BEGUM
AGED ABOUT 58 YEARS
6. MAHAMAD GHOUSE
AGED ABOUT 56 YEARS
7. SHABIDA BEGUM
AGED ABOUT 54 YEARS
8. HAMRADRAAJ @ HAMRAD PASHA
AGED ABOUT 50 YEARS
9. BARKATH UNNISA
AGED ABOUT 48 YEARS
ALL ARE R/AT
MAYASANDRA VILLAGE
MAYASANDRA HOBALI,
TURUVEKERE TALUK,
TUMKUR DISTRICT- 572227
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 13.01.2020 PASSED IN
RA.NO.61/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, TUTUVEKERE AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:37674
RSA No. 1277 of 2021
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellants.
2. The counsel appearing for the appellant would
submits that the property as per Ex.P14 under which the
property was purchased in the year 1944 not mentioned
that the galli is in existence and in the sale deed of year
1982 marked at Ex.D1 also not mentioned that no
existence of galli, these are the aspects which have not
been considered by the Trial Court as well as the First
Appellate Court and committed an error in comes to the
conclusion that this appellant has constructed a wall and
erroneously decreed the suit and directed to remove the
structure and the very approach of both the Courts is
erroneous.
3. Having heard the learned counsel for the
appellant and also on perusal of reasons assigned in the
Trial Court as well as the First Appellate Court, both the
Courts have taken note of admission given by DW1 in his
cross-examination that in between the property between
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RSA No. 1277 of 2021
the plaintiff and defendant there is 4 feet galli which is in
existence and also photographs are also produced before
the Trial Court and commissioner was also appointed and
also commissioner inspected the property and given the
report for having constructed the wall and the very
contention of the appellants' counsel that in the earlier
title deeds of the sale deeds, not mentioned that there
was a galli and the same has not been considered cannot
be accepted when there is clear admission on the part of
the DW1 i.e., existence of galli in between the both
properties and the same was taken note of by the Trial
Court and also First Appellate Court while re-appreciating
the evidence in paragraph Nos.21 as well as in paragraph
No.23 of the judgment. The Court taken note of DW1 has
clearly admitted about the existence of galli as stated by
the plaintiff in which they have constructed the compound
wall by stone culvert and lavatory rooms and also taken
note of the commissioner report and the commissioner has
issued notice to both parties and visited the spot and
conducted the mahazar and prepared the sketch in
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RSA No. 1277 of 2021
presence of both plaintiff and defendants and also taken
note of that there is galli towards southern side of suit
schedule property and towards the northern side of the
property of defendant and also there exists 3 windows and
southern side wall of the plaintiff, there is door on the
same wall. Further he submitted the report that the
defendants have constructed the lavatory room in the
open space and stone culvert as pleaded by the plaintiff.
4. Taking into note of the admission as well as the
commissioner report as well as the photographs both the
Courts have comes to the conclusion that the appellant
herein put up structure causing obstruction to the plaintiff.
Hence, I do not find any error committed by the Trial
Court as well as the First Appellate Court in considering
the both oral and documentary evidence available on
record, when the commissioner is also visited, prepared
the sketch and that to giving notice to both the parties and
material available on record is very clear that the appellant
caused obstruction to the plaintiff hence, the question of
framing any substantial questions of law does not arise by
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RSA No. 1277 of 2021
invoking Section 100 of CPC. This Court only invoke
Section 100 of CPC, if any perversity is found in reasoning
of the Trial Court as well as the First Appellate Court. Both
the Courts have taken note of material available on record
and particularly the admission given by the DW1 and also
the commissioner report and hence no grounds are made
out to admit and frame any substantial questions of law.
5. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
RHS
