Karnataka High Court
Ashok S/O Devappa Suppannavar vs Devendra S/O Annappa Suppannavar on 6 November, 2024
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NC: 2024:KHC-D:16189
RSA No. 100811 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100811 OF 2014 (DEC/INJ)
BETWEEN:
ASHOK S/O. DEVAPPA SUPPANNAVAR,
AGE: 64 YEARS, OCC: SERVICE,
R/O. 207, KALAMESHWAR GALLI,
ANAGOL-BELGAUM,
DIST. BELGAUM-590001.
... APPELLANT
(BY SRI. AKSHAY A. KATTI, SRI. ABHISHEK PATIL AND
SRI. ANAND ASHTEKAR, ADVOCATES)
AND:
DEVENDRA S/O. ANNAPPA SUPPANNAVAR,
Digitally
signed by
VISHAL
AGE: 81 YEARS, OCC. AGRICULTURE,
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
R/O. H.NO/205, KALAMESHWAR GALLI,
2024.11.27
10:36:25 ANAGOL, BELGAUM, DIST. BELGAUM-590001.
+0530
... RESPONDENT
(BY SRI. VITTHAL S. TELI, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 25.07.2014 PASSED IN
R.A.NO.1025/2009 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-I AND ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELGAUM, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 07.03.2007
AND THE DECREE PASSED IN O.S.NO.679/2003 ON THE FILE OF
THE II ADDITIONAL CIVIL JUDGE (JR.DN.), BELGAUM
DISMISSING THE SUIT FILED FOR DECLARATION AND
MANDATORY INJUNCTION.
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NC: 2024:KHC-D:16189
RSA No. 100811 of 2014
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
Assailing the legality and correctness of the
concurrent findings of fact recorded by the Courts below,
the plaintiff is before this Court in this regular second
appeal.
2. Suit for declaration that plaintiff is the owner
and for mandatory injunction to remove the
encroachment.
3. Suit property is a part of House No.207 marked
by letters 'ABCD' in the sketch annexed to the plaint
(hereinafter referred to as 'suit property' for short).
4. House bearing No.205 situated towards the
east, there is a wall between the two houses. It is the case
of the plaintiff that the defendant while putting up
construction, demolished the said wall and put up
NC: 2024:KHC-D:16189
construction in the said place by encroaching an area to
the extent of 86 square feet.
5. The defendant though appeared did not file any
written statement. The plaintiff examined himself as PW.1
and marked documents at Ex.P.1 to Ex.P.5. The trial
Court, based on the pleadings, framed the necessary
issues.
6. On consideration of the oral and documentary
evidence, the trial Court arrived at a conclusion that the
plaintiff has failed to establish his ownership over the suit
property and by the judgment and decree dismissed the
suit. Aggrieved the plaintiff preferred an appeal before the
First Appellate Court. The First Appellate Court while
appreciating the entire oral and documentary evidence,
affirmed the judgment and decree of the trial Court
against which, the plaintiff is before this Court in the
regular second appeal.
NC: 2024:KHC-D:16189
7. According to the learned counsel for the
appellant, the defendant who has not chosen to file written
statement, the Courts below erred in not accepting the
case of the appellant/ plaintiff in the absence of any
rebuttal evidence by the defendant and the same warrants
interference by this Court.
8. The case of the plaintiff cannot depend upon
the weakness of the defendant, plaintiff must prove his
own case and discharge the burden of proof, if he failed to
do so, the suit has to be dismissed. In the instant case,
the wall between the house No.205 owned by the
defendant and house No.207 owned by plaintiff is part of
house No.207. That, defendant while putting up
construction, caused damage to the wall of house No.207
owned by the plaintiff and unauthorizedly demolished the
said wall and defendant encroached the area to an extent
of 86 sq feet. Even in absence of contest by the defendant,
the plaintiff has to establish his case, by leading
corroborative evidence about the exclusive ownership over
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the wall and any encroachment by the defendant. In the
cross-examination of PW.1, he clearly admitted that
plaintiff and defendant contributed to the construction of
wall which establishes about common wall, other than
mere assertion about encroachment, no materials are
forthcoming. Perusal of the judgment and decree of the
Courts below clearly indicates that the suit of the plaintiff
was dismissed as the plaintiff failed to establish by leading
cogent evidence that the wall is in exclusive ownership and
any encroachment of defendant did not depend upon the
defendant's weakness.
9. The manner in which the Courts below have
re-assessed the entire oral and documentary evidence,
this Court is of the considered view that the same does not
warrant any interference under Section 100 of CPC.
Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
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(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
PJ
