Karnataka High Court
Smt Kotrawwa W/O Yamanappa Koyyar vs Shri Gangappa S/O Dodda Fakerappa ... on 28 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RSA No. 5258 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 5258 OF 2009 (MON)
BETWEEN:
SMT. KOTRAWWA
W/O YAMANAPPA KOYYAR,
AGED ABOUT 43 YEARS,
OCC: HOUSEHOLD WORK,
R/O. KINNAL, TQ: & DIST: KOPPAL
...APPELLANT
(BY SRI B SHARANABASAWA, ADVOCATE)
AND:
SHRI GANGAPPA
S/O DODDA FAKERAPPA SARAGAD,
AGE:45 YEARS, OCC: BANK EMPLOYEE,
R/O. KINNAL, TQ: & DIST: KOPPAL
...RESPONDENT
(BY SRI RAJASHEKHAR BURJI, ADVOCATE)
SUJATA
SUBHASH THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
PAMMAR OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET-ASIDE
Digitally signed by
SUJATA SUBHASH THE JUDGMENT AND DECREE DATED 22.01.2009 PASSED BY THE
PAMMAR
Date: 2024.03.12
22:37:02 -0700 COURT OF THE CIVIL JUDGE (SR.DN), AT KOPPAL, IN
R.A.NO.23/2008 BY CONFIRMING THE JUDGMENT AND DECREE
DATED 10.07.2008, PASSED BY THE COURT OF THE CIVIL JUDGE
(JR.DN) & JMFC, AT KOPPAL, IN O.S. NO.103/2006, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5258 of 2009
JUDGMENT
This Regular Second Appeal is filed by the defendant
challenging the judgment and decree dated 22.01.2009,
passed in R.A.No.23/2008, by the Civil Judge (Sr.Dn.),
Koppal (first appellate Court), revering the judgment and
decree dated 10.07.2008, passed in O.S.No.103/2006, by
the Civil Judge (Jr.Dn.), and JMFC, Koppal (trial Court).
2. For the purpose of convenience, the ranking of
the parties is referred to as per their status before the trial
Court.
3. The plaintiff has filed a suit for mandatory
injunction against the defendant to remove the roof put on
the wall of the house of plaintiff by encroaching the wall of
the plaintiff. But the said suit was dismissed on the reason
that the said roof was existed at the time of purchase of the
house by the defendant and the plaintiff has failed to prove
that the defendant has put roof on the wall of the plaintiff.
Therefore, dismissed the suit. Being aggrieved by it, the
plaintiff has preferred Regular Appeal before the first
appellate Court and the first appellate Court on
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re-appreciating the evidence on record, by considering
Ex.P.1 and P.2, held that the defendant has failed to prove
that the suit wall is the common wall and the wall belongs to
the plaintiff and roof top was constructed on the wall of the
plaintiff. Therefore, set aside the judgment and decree
passed by the trial Court and decreed the suit of the plaintiff
as prayed for by directing the defendant to remove the roof
put on the wall of the plaintiff's house. Challenging this, the
defendant has preferred the instant second appeal.
4. While admitting the appeal on 04.03.2014, this
Court has framed the following substantial questions of law.
i) Whether the first appellate Court has
committed a serious error in accepting the report
of the Commissioner without examining the
Commissioner?
ii) Whether the first appellate Court has
committed a serious error in not coming to the
conclusion that the suit wall is the exclusive
property of the plaintiff-respondent by ignoring
the judgment and decree passed in
O.S.No.30/1996?
5. The learned counsel for the defendant/appellant
submitted that the wall is common wall and defendant is
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having right over the wall but the defendant has not
constructed any roof on the wall of the plaintiff and
therefore, the allegation of the plaintiff is false. He further
submitted that the plaintiff has not produced any evidence to
prove that the defendant has constructed roof on the wall of
the plaintiff. It is further submitted that accepting the Court
Commissioner's report by the first appellate Court, in
O.S.No.30/1996 and in R.A.No.69/2004 without getting
examination of the Court Commissioner is not correct
approach by the first appellate Court and has erroneously
came to conclusion that the suit wall is the exclusive
property of the plaintiff. Therefore submitted that the
defendant has not put up any roof on the wall of the plaintiff,
but the said wall is a common wall. Hence prays to set aside
the judgment and decree of the first appellate Court by
confirming the judgment and decree of the trial Court.
6. On the other hand, learned counsel for
respondent/plaintiff submitted that in previous suit filed by
defendant herein in O.S.No.30/1996 it is proved that the suit
wall is not a common wall and that is confirmed in
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R.A.No.69/2004. Therefore, the said wall is not a common
wall and when this being the fact proved, the defendant has
put up roof on the wall of the plaintiff and it is rightly
considered by both the first appellate Court and the trial
Court and accordingly decreed the suit of the plaintiff and
issued mandatory injunction, which requires no interference
by this Court. Hence, prays to dismiss the appeal.
7. Learned counsel for the defendant places reliance
on the judgment of this Court reported in ILR 1995 KAR
3286 in the case of Vokkaligara Sannappa Vs
Vokkaligara Annaiah and the learned counsel for the
respondent/plaintiff places reliance on the judgment of this
Court reported in 2008 3 KCCR 1374 in the case of
Parappa and Others and Bhimappa and others. Both the
above said decisions are not applicable in the present case
for the reason that in those cases principles of law laid down
is on the question whether the Court Commissioner's report
can be accepted without examining the Commissioner. Here
in the present case, the question is different. The Courts
below have appreciated the judgment and decree passed in
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O.S.No.30/1986 and R.A.No.69/2004, but not Court
Commissioner's report alone. Court Commissioner's report
may be one of the factors in deciding the issue in
O.S.No.30/1996. Therefore, having difference in factual
matrix between the cases and as cited supra and in the
present case, the said two decisions are not applicable in the
present case.
8. In O.S.No.30/1996 filed by the defendant herein
for permanent injunction against the plaintiff herein, it is
proved and decreed that the suit wall is not a common wall.
The suit property in O.S.No.30/1996 and in the present suit,
are one and the same. In the previous suit in
O.S.No.30/1996, the defendant has failed to prove that the
suit wall is a common wall. This finding of fact is confirmed in
R.A.No.69/2004 and subsequently in Regular Second Appeal
also. The trial Court in O.S.No.30/1996 based on the Court
Commissioner's report gave the finding that the suit wall is
not a common wall. Therefore, whatever the finding given in
O.S.No.30/1996 and R.A.No.69/2004 is based on the Court
Commissioner's report and this Court Commissioner's report
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may be considered as an evidence in coming to the
conclusion in the said suit and regular appeal. Therefore, the
First Appellate Court in this case has observed that in
previous suit O.S.No.30/1996 and R.A.No.69/2004, it is
proved that the suit wall is not a common wall. The First
Appellate Court in this case has considered the finding given
in the previous suit and regular appeal, but not solely based
on the Court Commissioner's report in the previous suit.
Therefore, it is not correct in the contention of the learned
counsel for the appellant/defendant that the First Appellate
Court has committed error in accepting Court
Commissioner's report without examining the Commissioner.
The Court Commissioner's report may be one of the factors
in previous suit in coming to the conclusion that the suit wall
is not a common wall. The First Appellate Court has
considered and accepted the judgment and decree passed in
O.S.No.30/1996 and R.A.No.69/2004 and based on it, it was
held by the First Appellate Court in this case that the suit
wall is not a common wall, but not on the reason accepting
Court Commissioner's report. Therefore, substantial question
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of law No.1 may not be necessary. However, it is answered
in the negative. In the background of the discussions made
above, if in the present case, the First Appellate Court has
considered the Court Commissioner's report alone without
the judgment and decree in O.S.No.30/1996 and
R.A.No.69/2004, then the First Appellate Court would have
been in error, but that is not in the present case. The First
Appellate Court in the present case has not independently
considered the report but the judgment and decree passed in
O.S.No.30/1996 and R.A.No.69/2004 as above are
appreciated in coming to the conclusion that the suit wall is
not common wall.
9. When the entire case is considered on its
preponderance of probability based on the evidence adduced
by both the parties, the evidence of plaintiff is corroborated
by the evidence of PW2 that the defendant has put up roof
on the wall of the plaintiff. Therefore, the plaintiff has not
only relied on his own evidence but is corroborated by PW2.
Considering the cross examination of PW1 and PW2, there is
nothing revealed that the defendant has not put up roof on
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the wall belonging to the plaintiff. It is the case of the
plaintiff that the defendant has put up roof on the wall of the
plaintiff but the wall is not a common wall and it is even seen
through photographs the projection of roof towards the
property of the plaintiff that is amounting to encroachment
by the defendant. The suit wall is on the Eastern side of the
house of the plaintiff. After a gap of 3 feet from the Eastern
wall, the wall of defendant is situated. Therefore, there is an
open space of 3 feet between the wall of plaintiff and
defendant and that is why the plaintiff has shown in the
boundaries towards East, there is open space. The defendant
cross examined PW1 and at the most, it is an attempt to
show that he has not put up roof wall of the plaintiff.
Moreover, the defendant while being examined as DW1 has
admitted in the cross examination that his roof was projected
about 2 feet towards the wall of the plaintiff. This admission
proves that either the defendant has put up new roof or
there was earlier roof encroaching open space of plaintiff.
This projection of the roof can be seen by the photographs
produced at Exs.P5 to P8. Therefore, after considering the
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evidence on theory of preponderance of probabilities in the
background of the facts and circumstances of the case,
plaintiff has more probability in his case in proving that the
suit wall is not common wall and defendant has encroached
portion of the wall put up roof on the wall by the evidence of
PW1 and PW2 and the admission is given by the defendant in
his cross examination. But the evidence of defendant does
not have any corroboration and moreover, he has admitted
that there may be projection of roof about 2 feet towards the
Eastern wall of the plaintiff's house. This proves that the
plaintiff has made out a case for removal of roof constructed
on the wall of the plaintiff and it is rightly considered by both
the Courts below and directed to remove the roof put up on
the wall of the plaintiff. In substantial question of law No.ii,
in the second line, the word 'not' has appeared due to
typographical mistake but the said question is without using
the word 'not'. Therefore, it is corrected and read as follows:
"ii. Whether the first Appellate Court has
committed a serious error in coming to the
conclusion that the suit wall is the exclusive
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property of the plaintiff-respondent by ignoring the
judgment and decree passed in O.S.30/1996?"
10. Accordingly, the First Appellate Court is justified
in coming to the conclusion that the suit wall is exclusive
property of the plaintiff. Hence, the substantial question of
law No.2 is answered in the negative. Thus, the regular
second appeal filed by the defendant is liable to be
dismissed. Hence, I proceed to pass the following:
ORDER
Appeal is dismissed. The judgment and decree dated
22.01.2009, passed in R.A.No.23/2008, by the Civil Judge
(Sr.Dn.), Koppal is confirmed.
Sd/-
JUDGE
MRK-para 1 to 6,
KGK-para 7 to end.
CT:ANB
