Karnataka High Court
Sri.Kalakappa S/O Malleshappa Shettar vs Sri.Rajashekar S/O Gadigeppa Turmandi on 14 November, 2024
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RSA No. 100231 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100231 OF 2018 (DEC/INJ)
BETWEEN:
1. SRI. KALAKAPPA
S/O. MALLESHAPPA SHETTAR,
AGE: 50 YEARS, OCC: ADVOCATE,
R/O: BAGALKOTE,
TQ AND DIST: BAGALKOTE.
2. SMT. DRAXAYANI
W/O. AVVANNEPPA BELLAD,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR VASVI TALKIES, BAGALKOTE,
TQ AND DIST: BAGALKOTE.
Digitally
signed by
...APPELLANTS
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
(BY SRI. M. C. HUKKERI, ADVOCATE)
2024.11.25
10:38:45
+0530
AND:
1. SRI. RAJASHEKAR
S/O. GADIGEPPA TURMANDI,
AGE: 52 YEARS, OCC: BUISNESS,
R/O: C.T.S. NO.L132/B,
WARD NO.10 BAGALKOTE,
TQ AND DIST: BAGALKOTE.
2. SRI. MALLIKARJUN
S/O. GADIGEPPA TURMANDI
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RSA No. 100231 of 2018
AGE: 60 YEARS, OCC: BUISNESS,
R/O: C.T.S. NO.L132/B,
WARD NO.10 BAGALKOTE,
TQ AND DIST: BAGALKOTE.
3. THE CITY MUNICIPAL COUNCIL
BY ITS COMMISSIONER,
NAVANAGAR, BAGALKOTE.
... RESPONDENTS
(BY SRI. P.S.TADAPATRI, ADVOCATE FOR
SRI. K.L.PATIL, ADVOCATE FOR R1 AND R2;
NOTICE TO R3 IS SERVED)
THIS RSA IS FILED U/SEC.100 OF CPC, 1908,
AGAINST THE JUDGEMENT & DECREE DATED 22.02.2018
PASSED IN R.A.NO.04/2016 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, BAGALKOTE ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 11.12.2015, PASSED IN O.S.
NO.286/2012 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
BAGALKOTE, PARTLY DECREEING THE SUIT FILED FOR
DECLARATION AND INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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RSA No. 100231 of 2018
ORAL JUDGMENT
The plaintiffs are before the Court in this regular
second appeal assailing the judgment and decree in RA
No.4/2016 dated 22.02.2018 on the file of I Additional
Senior Civil Judge and JMFC, Bagalkot, (hereinafter
referred to as 'First Appellate Court' for short) reversing
the judgment and decree in OS No.286/2012 dated
11.12.2015 on the file of Additional Civil Judge and JMFC,
Bagalkot, (hereinafter referred to as 'trial Court' for short),
wherein, the First Appellate Court dismissed the suit of the
plaintiffs.
2. The parties herein are referred to as per their
rank before the trial Court for the sake of convenience.
3. Plaintiffs instituted a suit for declaration and
consequential relief of mandatory injunction to declare
that the compound wall between the house of the plaintiffs
bearing CTS No.133B/2 and the house of defendant Nos.1
and 2 house bearing CTS Nos.132A/1 and 132A/2, there is
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a common wall shown in the red ink marked in the hand
sketch annexed to the plaint and to hold that the
construction made by the defendant Nos.1 and 2 on the
compound wall and in the set back is illegal and
unauthorized construction and further directing to issue a
mandatory injunction to remove the construction
constructed by defendant Nos.1 and 2. The case of the
plaintiffs is that there is a compound situated between the
properties of plaintiffs and defendants and the plaintiffs
are enjoying the air and light for many years. According to
the plaintiffs, the defendants without the consent of the
plaintiffs and without obtaining any license are putting up
construction on the compound wall, which is a common
compound wall of the plaintiffs and the defendants.
4. On notice, the defendants appeared and filed
their written statement inter alia denied that the
compound which is situated between the properties of
plaintiffs and defendants, is not a common compound wall
and specifically denied the averments made in the plaint
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and contended that between the properties of the plaintiffs
and the defendants, there is a private road to an extent of
6 feets i.e., 'AHRE', which is shown in the plaint sketch
and the defendants in order to protect their property, has
constructed a common compound wall i.e., shown as 'AB'
in the plaint sketch and the compound wall has been
constructed about 30 to 35 years ago.
5. In order to substantiate their claim, plaintiff
No.1 examined himself as PW.1 and 4 witnesses as PW.2
to PW.5 and marked documents at Ex.P.1 to Ex.P.22. On
the other hand, the defendant No.2 examined himself as
DW.1 and 1 witness as DW.2.
6. The trial Court arrived at a conclusion that;
1) The plaintiffs have established that the wall
shown by the red ink in the hand sketch map is a
common wall between the house of the plaintiffs and
defendant Nos.1 and 2.
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2) That the plaintiffs have proved that the
defendants have put up an illegal construction on a
compound wall over a set back area.
7. By the judgment and decree, the trial Court
decreed the suit in OS No.286/2012 with cost and
declared that the compound wall between the house of the
plaintiffs and the house of the defendants is a common
compound wall and the plaintiffs and defendants are the
owners and held that the plaintiffs are entitled for
Rs.40,000/- damages to be paid by the defendants. It is
relevant to state here that the plaintiffs had filed OS
No.155/2009 for a bare injunction restraining the
defendants from putting up construction in the set back
area of defendants property as well as on the compound
wall of the plaintiffs and defendants. The said suit was
connected with OS No.286/2012 against which the present
appeal arose, OS No.155/2009 came to be dismissed, no
appeal is preferred by the plaintiffs against the judgment
and decree in OS No.155/2009, the same has attained
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finality. Aggrieved, by the decretal of suit in OS
No.155/2009, the defendants preferred appeal before the
First Appellate Court. The First Appellate Court while re-
appreciating and re-considering the entire oral and
documentary evidence, framed the following points for
consideration which reads as under;
"1. Whether the trial court has erred while
passing the judgment in O.S. No.286/2012 without
appreciating the evidence of P.W.2 to 5 and the
documents produced by the plaintiff and passed the
erroneous and capricious judgment?
2. Whether the interference of this court is
necessary in this appeal ?
3. What order or decree?"
8. The First Appellate Court while appreciating the
evidence, being the last fact finding Court arrived at a
conclusion that the plaintiffs have failed to establish that
the compound wall situated between the property of the
plaintiffs and defendants is a common compound wall and
dismissed the suit of the plaintiffs. Aggrieved, the plaintiffs
are before this Court in this regular second appeal.
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9. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the
respondents and perused the materials available on
record.
10. It is an un-disputed fact that the plaintiffs and
defendants are the owners of their respective properties.
The plaintiffs have produced the hand sketch map along
with the plaint to indicate the location of the property of
the plaintiffs and the defendants. The situation of the
property of the defendants is to the eastern side and the
property of the plaintiffs is to the western side. Between
the properties of the plaintiffs and defendants, there is a
gap which is indicated in the hand sketch map and the
compound wall, which is marked is adjoining to the
property of the defendants.
11. The plaintiffs contended that under the
registered sale deed executed by the common vendor in
favor of the plaintiffs under Ex.P.2, it is clearly mentioned
that there exist a common compound wall between the
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properties of plaintiffs and defendants and to prove their
contention, Ex.P.2 is marked in the evidence. It is relevant
to state here that Ex.P.2 is not an original document, but a
photostat copy.
12. The First Appellate Court while appreciating
Ex.P.2 arrived at a conclusion that there is an handwritten
insertion in the sale deed and there is no explanation
offered by the plaintiffs to that effect. The plaintiffs have
not produced the original sale deed, which is a primary
document to prove about the compound wall being
common between the plaintiffs and defendants property.
The First Appellate Court arrived at a conclusion that non-
production of the original sale deed draws an adverse
inference against the plaintiffs and the insertion portion
regarding the compound wall being common between the
plaintiffs and defendants property cannot be believed.
13. It is relevant to state here that PW.1 in his
cross-examination categorically in un-equivocal terms has
admitted that between the property of the plaintiffs and
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defendants there is a 6 feet wall. The relevant portion of
the cross-examination of PW.1 is extracted as under;
"£ÀªÀÄä zÁªÁ D¹Û £ÁªÀÅ RjÃj¹zÀ D¹ÛAiÀiÁVzÉ C£ÀÄßvÁÛgÉ. £Á£ÀÄ D¹Û
Rjâ¸ÀĪÀ ªÉÆzÀ¯Éà ¥ÀæwªÁ¢AiÀÄgÀÄ vÀªÀÄä D¹ÛAiÀÄ°è ¸Áé¢üãÀzÀ°èzÀÝgÀÄ CAzÀgÉ
¸Àj. £Á£ÀÄ £À£Àß D¹ÛAiÀÄ£ÀÄ 2007 gÀ°è Rjâ¹zÉÝãÉ. £À£Àß ªÀÄvÀÄÛ ¥ÀæwªÁ¢
C¹Û £ÀqÀÄªÉ LzÁgÀÄ Cr CUÀ®zÀ gÀ¸ÉÛ EzÉ CAzÀgÉ ¸ÁQë FUÀ CzÀ£ÀÄß £Á£ÀÄ
gÀ¸ÉÛ CAvÁ G¥ÀAiÉÆÃV¸ÀÄwÛgÀÄªÉ ªÀÄÄAzÉ CzÀgÀ°è £Á£ÀÄ PÀlÖqÀ PÀlÖ§ºÀÄzÀÄ
C£ÀÄßvÁÛgÉ. £À£ÀߪÀÄ£ÉAiÀÄ ¥ÀƪÀðPÉÌ ¸ÀĪÀiÁgÀÄ LzÁgÀÄÀ Cr CUÀ®zÀ gÀ¸ÉÛ EzÀÄÝ
CzÁzÀ £ÀAvÀgÀ ¥ÀÄwªÁ¢AiÀÄ Jf PÀA¥ËAqÀ UÉÆÃqÉ EgÀÄvÀÛzÉ CAzÀÀgÉ - ¸ÁQë
¥ÀæwªÁ¢UÉ ¸ÉÃjzÀÄÝ K ¢AzÀ f vÀ£ÀPÀ EgÀĪÀ UÉÆÃqÉ ªÀiÁvÀæ C£ÀÄßvÁÛgÉ. £À£Àß
ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄ D¹Û £ÀqÀÄªÉ LzÁgÀÄ Cr CUÀ®zÀ gÀ¸ÉÛ EgÀĪÀÅzÀjAzÀ J
f PÀA¥ËAqÀ UÉÆÃqÉ ¥ÀæwªÁ¢AiÀÄ ¸ÁªÀÄÆ»PÀ UÉÆÃqÉ C®è CAzÀgÉ ¸ÀjC®è."
14. The hand sketch map produced by the plaintiffs
in corroboration with the cross-examination of PW.2, in
the absence of the original sale deed and handwritten
insertion about common compound wall in the photstat
copy produced by the plaintiffs at Ex.P.2, the First
Appellate Court arrived at a conclusion that the plaintiffs
have failed to establish that there is a common compound
wall between the property of the plaintiffs and defendants.
The First Appellate Court has rightly appreciated the entire
oral and documentary evidence and dismissed the suit of
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the plaintiffs and this Court finds that the finding recorded
by the First Appellate Court does not suffer from any
illegality or perversity warranting any interference by this
Court under Section 100 CPC and no substantial question
of law arises for consideration in the regular second
appeal. Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the First
Appellate Court stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
PJ / Ct-PA
