IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE MOHAN SHANTANAGOUDAR. REGULAR SECOND APPEAL No.

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 12 th DAY OF SEPTEMBER 2012 BEFORE THE HON BLE MR. JUSTICE MOHAN SHANTANAGOUDAR REGULAR SECOND APPEAL No.2140/2006 BETWEEN: Ahmed Ali Saheb S/o late Ameersab Aged 70 years R/o Kattepura Village Konanur Hobli Arakalagud Taluk...Appellant (By Sri. S.N. Keshavamurthy, Adv.,) AND : Thammanna Gowda S/o Dyavegowda Aged 74 years R/o Kattepura Village Konanur Hobli Arakalagud Taluk...Respondent (By Sri K.R. Nanjundaiah, Adv., absent) This RSA is filed under Section 100 of CPC., against the judgment and decree dated passed in R.A.No.53/1995 on the file of the Civil Judge (Sr.Dn.), Holenarasipura, dismissing the appeal and confirming the

2 2 judgment and decree dated passed in O.S.No.28/1986 on the file of the Munsiff and JMFC., Arkalgud. This RSA coming on for hearing this day, the Court delivered the following : J U D G M E N T This is the defendant s Second Appeal against the concurrent findings of facts arrived at by the Courts below. The respondent herein filed suit for declaration that he is the owner of the area BCKL shown in the plaint sketch. He has also sought for declaration that the wall BC is a common wall of both the plaintiff and defendant. The Perpetual Injunction is also sought for restraining the defendant/appellant from interfering with the peaceful possession and enjoyment of the passage/area BCKL for ever. The trial Court as well as the first appellate Court decreed the suit.

3 3 2. The case of the plaintiff is that he is the owner of the house shown in the plaint sketch marked as HBCG. The plaintiff originally owning a house shown as AFGH in the rough sketch. Subsequently, he purchased the old house shown as ABCF in the rough sketch from its earlier owner on The wall shown as BC is the common wall to the houses ABCF and BCJI i.e. houses of the plaintiff and the defendant. Thereafter the plaintiff demolished the old house and constructed the new house on the very area leaving passage BCKL having width of 3 feet space to go to backyard FCDE shown in the plaint sketch. Thus according to the plaintiff, the defendant has no manner of right, title and interest of possession whatsoever over the suit schedule passage BCKL and the same belongs to the plaintiff exclusively. The case of the defendant is that the grand-father of the defendant and Mr. Alijan (vendor of the plaintiff)

4 4 purchased 3 ankanas house from one Mohammed Akbar Sab on ; one ankana house means 8 feet in width; that the defendant s father and the said Alijan s father Khasin Sab were brothers inter se; that the defendant s father was given 2 ankanas house i.e. 16 feet in width and Mr. Alijan s father was given one ankana house i.e. 8 feet in width. To the east of Alijan s house and to the west of AFGH i.e. the house purchased by the plaintiff from Peersab on there existed a passage measuring 6 feet for the use of access to the backyard of Alijan and defendant; that right from 1923, the defendant s ancestors had no separate access to backyard other than the one mentioned in the sale deed of 1974; that when the plaintiff is intended to demolish the house which was purchased from Mr. Alijan, he has requested the defendant that he would make use of the space lying between Alijan s house and the house he purchased from Mr. Peersab to construct a new house and he would leave 3 feet space shown as BCKL for his use as

5 5 well as for the use of the defendant to approach the backyard for which the defendant agreed; thus the space BCKL has been left for the use of the plaintiff and the defendant; that the documents produced by the plaintiff do not tally with the sale deed dated ; that the rough sketch produced alongwith the plaint does not speak of the reality. The sum and substance of the case of the defendant is that 3 feet width passage lying between the house of the plaintiff and the defendant is a common passage for the plaintiff and the defendant and the plaintiff cannot claim ownership over the said property. 3. Based on the above pleadings, the trial Court raised the following six issues: 1) záªá C ÀÄ ÀÆa ÀévÀÄÛ ¹PÉJ ï JAzÀÄ véæãj¹zàäý ªÁ AiÀÄ ªÀiÁ PÀvÀéªÉA ÄzÀ ÀÄß ªÁ gàädäªávàä Àr ÀĪÀgÉÃ? 2) záªá ºÀÆqÀĪÀ PÁ PÉÌ záªá C ÀÄ ÀÆa eáuà ªÁ AiÀÄ ÀævÉåÃPÀ Áé üã Á ÀÄ ÀsªÀzÀ èvéûazàä ªÁ gàädäªávàä Àr ÀĪÀgÉÃ?

6 6 3) záªá C ÀÄ ÀÆa ÀéwÛ À ªÁ AiÀÄ ªÀ»ªÁnUÉ ÀæwªÁ AiÀÄgÀÄ CrØ DvÀAPÀ Àr ÀÄwÛzÁÝgÉA ÄzÀÄ ªÁ gàädäªávàä Àr ÀĪÀgÉÃ? 4) ÁAPÀ gàazàä ªÀĺÀªÀÄäzï CPÀâgï ÁºÉà jazà ªÁ UÉ ªÀiÁgÁl ªÀiÁrzÀªÀgÀÄ, Rjà ¹zÀ ªÀÄ É JAlÄ Cr CUÀ zà ªÀÄÆgÀÄ CAPÀtzÉÝAzÀÄ ªÀÄvÀÄÛ G½zÀ JgÀqÀÄ CAPÀt ÀæwªÁ AiÀÄgÀ vàazé Rjà ¹zÀÝgÀÄ JA ÄzÀ ÀÄß ÀæwªÁ AiÀÄgÀÄ gàädäªávàä Àr ÀĪÀgÉÃ? 5) ÀæwªÁ AiÀÄgÀÄ»vÀÛ UÉ ºÉÆÃUÀ Ä DgÀÄ Cr CUÀ zà záj EvÉÛAzÀÄ ÀæwªÁ AiÀÄgÀÄ gàädäªávàä Àr ÀĪÀgÉÃ? 6) K ÀÄ rqæ CxÀªÁ DzÉñÀªÁUÀ ÉÃPÀÄ? 4. During the course of trial, the plaintiff examined himself as PW-1 and got marked six Exhibits. On behalf of the defendant, two witnesses were examined including the defendant and no document is marked. The Commissioner was appointed and the report of the Commissioner is marked at Ex.C1, sketch prepared by the Commissioner is marked at Ex.C2 and the Mahazar is marked at Ex.C3. As aforementioned, the trial Court decreed the suit. The first appellate Court confirmed the same.

7 7 5. At the outset, it has to be mentioned that the appeal fully rests on appreciation of the facts. No question of law muchless substantial question of law arises. The only question is as to whether the space in question is a common passage or is an exclusive space of the plaintiff for his ingress and egress to the backyard. 6. The rough sketch produced by the plaintiff alongwith the plaint is marked at Ex.P6. Apart from that, the Commissioner was also appointed by the trial Court for local investigation and the Commissioner has submitted the report alongwith the detailed sketch of the disputed area. The sketch prepared by the Commissioner is marked at Ex.C2. The defendant did not raise any objection while marking Commissioner s report - Ex.C1 and the sketch prepared by the Commissioner Ex.C2. The said sketch is on par with the sketch Ex.P6.

8 8 7. It is not in dispute that the house belonging to Mr. Alijan, who happens to be the cousin of defendant was in existence where a disputed BCKL passage is now in existence. It is also not in dispute that the said house is belonging to Mr. Alijan. The very house was purchased by the plaintiff through the sale deed dated The area purchased by the plaintiff from Mr. Alijan is marked as ABCF. Earlier thereto, the plaintiff has purchased another house from Mr. Peersab on It is also not in dispute that the house of Mr. Alijan and the house of the defendant are abutting each other and the BC wall is common for both the houses. The case of the plaintiff is that he demolished the house purchased from Mr. Alijan as well as Peersab and constructed a new house in that place by leaving the disputed BCKL passage for his exclusive use in order to have access to the backyard. However, according to the defendant the said disputed BCKL passage is for common use of the plaintiff and the defendant.

9 9 8. BCKL passage was not in existence prior to the plaintiff purchasing the property from Mr. Alijan and prior to its demolition and construction of the house and the said passage came into existence only when the plaintiff has left the space of 3 feet for his use exclusively. The defendant has clearly admitted in his cross-examination that the wall BC is a common wall. If it is so, there could not have been any space in between the house of the plaintiff and the defendant. However, the passage BCKL is on the eastern side of the said BC wall abutting the plaintiff s house. 9. The case of the defendant that the plaintiff has encroached 6 feet of the open area which was lying on the eastern portion of Mr. Alijan s house is negatived by both the Courts below. No material is produced by the defendant to show that such space is existing at any point of time on the eastern side of Mr. Alijan s house. Undisputedly the defendant s house is situated on the

10 10 western side of Mr. Alijan s house and the said Mr.Alijan s house was purchased by the plaintiff in the year Since there is nothing on record to show that six feet width passage is a common passage and the same is to the eastern portion of the house of Alijan and the said passage is encroached by the plaintiff, the oral say of the defendant is not rightly believed by the Courts below. 10. The sale deed executed in favour of the plaintiff is marked as Ex.P1. The said sale deed nowhere reveals that passage is lying on the western side of the plaintiff s property. The said sale deed also does not reveal that 6 feet width passage is available to the eastern portion of Mr. Alijan s house as contended by the defendant. The sale deed of the plaintiff Ex.P1 describes eastern boundary as his house and western side as his uncle s house. Thus the eastern and western boundary of the property which is purchased by the plaintiff from Mr. Alijan does not have the common passage.

11 DW-2 has admitted that the defendant has got a passage on the western side of his property. Therefore it cannot be said that the defendant has no alternative access to his backyard except the disputed BCKL passage. The defendant has encroached upon the passage lying on the western side and constructed his house. This means that the defendant himself has encroached the common passage lying on the western side of his property and constructed his building. 12. Both the Courts below on evaluation of the material on record have concluded that the suit schedule BCKL passage is exclusively belonging to the plaintiff and it is not a common passage. As aforementioned, no question of law muchless substantial question of law arises in this appeal. Even at the time of admission, no question of law was framed. Even otherwise, upon hearing this Court does not find any question of law.

12 12 Hence the appeal stands dismissed. Sd/- JUDGE Gss/