Karnataka High Court
Fakruddin Sab vs Abdul Hamid on 30 July, 2024
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RSA No. 999 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.999 OF 2015 (INJ)
BETWEEN:
FAKRUDDIN SAB
S/O RAJA SAB,
AGED ABOUT 81 YEARS,
OCC:BUSINESS, R/O SHIMOGA ROAD,
HARIHARA TALUK, HARIHARA,
DAVANAGERE DISTRICT - 577 601.
...APPELLANT
(BY SRI. KALEEMULLAH SHARIFF, ADVOCATE)
AND:
ABDUL HAMID
S/O RAJA SAB,
AGED 75 YEARS,
Digitally OCC:BUSINESS, SHIMOGA ROAD,
signed by R HARIHAR TALUK, HARIHARA,
DEEPA DAVANAGERE DISTRICT - 577 601
Location: ...RESPONDENT
HIGH
COURT OF THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
KARNATAKA THE JUDGMENT AND DECREE DATED 28.02.2015 PASSED IN
RA.NO.2/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AT
HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.12.2009 PASSED IN
OS.NO.48/2007 ON THE FILE OF THE PRL.CIVIL JUDGE
(JR.DN.) J.M.F.C HARIHARA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 999 of 2015
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant
challenging the judgment and decree dated 28.02.2015
passed in R.A.No.02/2010 by the Senior Civil Judge at
Harihar, confirming the judgment and decree dated
15.12.2009 passed in O.S.No.48/2006 by the Civil Judge
(Jr. Dn.) and JMFC at Harihara.
2. The parties are referred to as per their ranking
before the trial Court. The appellant is the plaintiff and
respondent is the defendant. The plaintiff filed a suit for
permanent injunction and also mandatory injunction
directing the defendant to remove sajja which is attached
to the north wall of the defendant.
3. Brief facts of the case are as under:
It is the case of the plaintiff that, the plaintiff and the
defendant are the brothers. The suit schedule property
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was fallen to the share of the plaintiff by way of partition
which took place between the plaintiff and the defendant.
The residential property bearing No.23/24/25/26 situated
in 'B' Division Harihara. The plaintiff is the owner of
property at ABCDEFGH and the defendant is the owner of
southern side abutting the suit property. Both the plaintiff
and the defendant are in possession and enjoyment of
their respective portion as owners. The plaintiff
constructed a tiled roof house and with the mutual consent
of the Gooleppa has constructed a common wall on the
northern side. The plaintiff has also left 4 feet space
passage shown by the letters STRU for ingress and egress
between the property of himself and the defendant. It is
contended that, the defendant had constructed a sajja on
2 feet on north south direction of the property which come
above the plaintiff's property. As such is causing damage
and nuisance to the plaintiff. Hence, the sajja of the
defendant's building was filled with water and developed
cracks and because of the water falling, there is a
imminent danger of it falling down and also the rain water
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falls on the plaintiff's property. Hence, the plaintiff
requested the defendant to remove the sajja which is
attached to the northern wall of the defendant runs east
west and also to close the water outlets erected on the
northern side wall of the defendant. The defendant did not
give any heed to the request of the plaintiff. Hence, cause
of action arose for the plaintiff to file the suit for
permanent and mandatory injunction.
4. The defendant filed the written statement
contending that the plaintiff prior to filing of instant suit
filed a suit for declaration and injunction in O.S. 127/1989.
The said suit came to be dismissed and the plaintiff
aggrieved by the judgment and decree passed in
O.S.No.127/1989, preferred an appeal in
R.A.No.307/2002. During the pendency of the said appeal,
the plaintiff filed an application for withdrawal of the said
appeal with a liberty to file a fresh suit. The first Appellate
Court permitted the plaintiff to withdraw the said appeal.
The defendant aggrieved by the order passed by the first
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Appellate Court withdrawing the appeal filed the writ
petition in W.P.No.10787/2005 before this Court. The said
writ petition came to be allowed and the appeal was
restored. It is contended that, there is no existence of
property as shown in the plaint sketch and the description
of the property is not correct. Hence, prayed to dismiss
the suit.
5. The trial Court, on the basis of the pleadings of
the parties, framed the issues.
6. The plaintiff in order to substantiate his case
examined himself as PW.1 and also examined two
witnesses as PWs.2 and 3 and got marked documents as
Exs.P1 to P4. The defendant has filed his affidavit in the
form of examination-in-chief, but he did not appeared
before the Court for cross-examination. Hence, his
evidence was taken as closed. The trial Court after
recording the evidence of the parties, after hearing on both
sides and on assessment of oral and documentary
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evidence, answered issue Nos.1 to 3 in the negative and
issue No.4 as per the final order. The suit of the plaintiff
was dismissed with cost. The plaintiff aggrieved by the
judgment and decree passed in O.S.No.48/2007 preferred
an appeal in R.A.No.02/2010 on the file of Senior Civil
Judge at Harihar.
7. The First Appellate Court, after hearing the
parties, framed the points for consideration.
8. The First Appellate Court, on re-appreciating
the oral and documentary evidence, answered point Nos.1,
2 and 4 in the negative, point No.3 in the affirmative and
point No.5 as per the final order. Consequently, dismissed
the appeal vide judgment dated 28.02.2015 confirming
the judgment and decree passed by the trial Court.
9. The plaintiff aggrieved by the impugned
judgments and decree passed by the Courts below, filed
this regular second appeal.
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10. Heard the learned counsel for the plaintiff.
11. Learned counsel for the plaintiff submits that the
cause of action arose for the plaintiff to file the present
suit and judgment passed in O.S.No.127/1989 has no
impact on the present suit. The courts below have
committed an error in dismissing the suit solely on the
ground that the plaintiff has filed a suit for declaration and
injunction. Hence, on these grounds, he prays to allow the
appeal.
12. Heard and perused the records and considered
the submissions of the learned counsel for the plaintiff.
13. It is not in dispute that the plaintiff has filed a
comprehensive suit for relief of declaration and injunction
in O.S.No.127/1989. The suit filed by the plaintiff was
dismissed. The plaintiff aggrieved by the judgment and
decree passed in O.S.No.127/1989, preferred an appeal in
R.A.No.307/2002. Admittedly, during the pendency of the
said appeal, the plaintiff has filed the present suit. The
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defendant has produced the decree passed in
O.S.No.127/1989 marked as Ex.D1. From the perusal of
Ex.D1, the trial Court held that the plaintiff is not the
owner of the vacant portion as shown by the letters ABCD
and declined to grant a relief of permanent injunction and
also mandatory injunction. The plaintiff has already
suffered a decree in O.S.No.127/1989 and during the
pendency of the appeal, the plaintiff filed the present suit.
If at all the plaintiff has any grievance, he ought to have
filed an application in R.A.No.307/2002. But, on the
contrary, he has filed a separate suit. Hence, the suit filed
by the plaintiff is not maintainable during the pendency of
R.A.No.307/2002. The trial court, considering the
judgment passed in O.S. No. 127/1989, has rightly
dismissed the suit. The first Appellate Court on re-
appreciation of the evidence on record was justified in
confirming the judgment and decree passed by the trial
Court. Hence, I do not find any substantial question of law
that arises for consideration in this appeal. This Court
declined to admit the appeal.
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14. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is dismissed
The judgments and decree passed by the
Courts below are hereby confirmed.
No order as to the costs.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SSB
