B. Lingamma vs Hampinakatti Hnumanthappa

A.V. Chandrashekara, J.—Plaintiff of an original suit bearing O.S. No. 288/2006 which was pending on the file of the Court of Prl. Civil Judge (Jr. Dn.) & JMFC, Hospet, is before this Court by filing an appeal u/s 100 of CPC.

The suit filed for the relief of permanent injunction and for mandatory injunction has been dismissed after contest. Appeal filed u/s 96 of CPC in R.A. No. 23/2008 before the Court of Addl. Senior Civil Judge, Hospet, has been dismissed. Hence the plaintiff is before this Court. Respondent before this Court is the defendant in the said suit. Parties will be referred to as plaintiff and defendant as per their ranking given in the trial Court.

Claiming himself to be in lawful possession and enjoyment of the suit schedule property as described in the schedule appended to the plaint, the plaintiff had filed a suit for the relief of permanent injunction in respect of the open space situated towards southern side of the plaintiffs house as shown in the sketch and indicated in the letters ''DEFGHIBC and also for mandatory injunction directing the defendant to remove the hut or shed put up in the portion of the road earmarked in the house of the plaintiff to reach the railway station as shown in the rough sketch with letters ''DEFG''.

Case of the plaintiff is that she is the absolute owner of house property bearing D No. 406, Old No. 257 in Ward No. 4. According to the plaintiff, the western side of the main road runs towards the Railway station and eastern side road is a small road which runs North to South and being used by the residents living on the southern side in order to reach the main road i.e., Railway Station. Plaintiff wants this road. The open space is being used by the plaintiff and her son who is a medical practitioner to bring carts and other vehicles to reach the western side of the house. Since the defendant had put up a temporary hut in a portion of the road which is used by the plaintiffs son and plaintiff to reach the Railway Station road, relief of mandatory injunction has been sought.

The defendant has denied the authenticity of the sketch and the boundaries mentioned in the schedule. Defendant has admitted the house property of the plaintiff, which has its door towards the east. But the defendant has denied that the plaintiff has a door towards the western side in order to reach the railway station. The defendant has specifically denied the averment of the plaintiff that he has been using the western side road to reach the railway station. Eastern side road is 40 ft. in width which runs North South which connects to Hopset H.B. Halli Road and also Railway station road. Therefore there is no road on the western side of the property of the plaintiff. The alleged encroachment has been specifically denied.

On the basis of the above pleadings, following issues came to be framed:

Whether plaintiff proves she is in lawful possession over the open space situated towards western and southern side of plaint schedule house as shown in rough sketch mentioned with letters DEFGHIBC?

Whether Plaintiff proves Defendant put up the hut or shed as shown in the rough sketch with letters DEFG?

Whether Plaintiff proves alleged interference of Defendant over suit schedule property?

Whether Plaintiff is entitled for the relief of Permanent Injunction as sought for?

Whether Plaintiff is entitled for the relief of mandatory injunction as sought for?

What decree or order?

One Dr. Ambanna, power of attorney of the plaintiff has been examined as PW1 and 12 exhibits have been got marked. One Sri Anjinappa, is examined as DW. 1 and four exhibits have been got marked. Ultimately all the issues have been answered in the negative and suit is dismissed. As against which an appeal filed u/s 96 of CPC in R.A. No. 23/2008 has also been dismissed. Concurrent findings are called in question.

Learned Counsel for the appellant has submitted his arguments in regard to admission. It is his case that I.A. IV filed under Order 41 Rule 27 of CPC before the First Appellate Court has been dismissed without assigning any reasons and therefore, it is an error apparent on the record and the First Appellate Court could not have dismissed the same without assigning any reasons. It is further held that the First Appellate Court should have passed an order on I.A. No. 4.

Admittedly suit filed was for the relief of permanent injunction only. The schedule appended to the plaint does not disclose the measurement at all. What exactly is the extent of open space existing in the schedule property is also not forthcoming. What exactly is the extent of the shed put up by the plaintiff is also not forthcoming. In a case like this, it was incumbent upon the plaintiff to have got a Commissioner appointed at the instance of the Court to visit the spot in order to submit the report, after measuring the entire extent of land. Initial burden cast upon the plaintiff has not been effectively discharged and therefore, the onus does not shift on the other side.

PW1 himself has admitted that though in Ex. P9 the rough sketch, measurements are shown, he has deposed that the said measurements are shown on an imaginary basis. It is his case that he has got measured the property. But no document is forthcoming about the exact measurement of the suit schedule property. Admittedly, plaintiff is not claiming that she is the absolute owner of the said open space. It is her case that she and her son have had been using the said road for several years. Mere using of the same for several years does not confer any right in favour of the plaintiff, Unless a specific case of easement of necessity by way of prescription is sought for. Taking all these into consideration the trial Court has chosen to dismiss the suit.

In an appeal filed against the judgment and decree arising out of permanent injunction, the question of taking additional evidence does not arise. What is held by the Hon''ble Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, , is, whenever the title of an open space is specifically denied, a mere injunction suit will not lie. On the other hand, in such an event, a comprehensive suit for the relief of declaration of title and consequential relief of injunction or possession, as the case may be, will have to be filed. Taking all this into consideration, the trial Court has dismissed the suit. No infirmity or illegality is found in the approach adopted by the trial Court.

The First Appellate Court being the final Court of facts has reassessed the entire evidence by formulating the proper points for consideration. The First Appellate Court has also adopted right approach to the real state of affairs, more particularly, keeping in mind the principles reiterated in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., . Suffice to state that no good grounds are made out to interfere with the well considered findings or fact given by the trial Court which are affirmed by the First Appellate Court.

The substantial questions of law as proposed in the appeal memo are not substantial questions of law in the present case within the purview of Section 100 of CPC and even on perusal of the records no substantial questions of law arise. Hence the appeal is liable to be dismissed as unfit for admission.

ORDER

Appeal is dismissed as unfit for admission. The judgments of the trial Court and the First Appellate Court are confirmed. No order as to costs.

Notwithstanding the dismissal of the suit, the plaintiff will be at liberty to file a comprehensive suit for the relief of declaration and consequential relief of injunction or mandatory injunction, as the case may be, and in such an event, the defendant will have the liberty to take suitable steps, as may be available under law. There is no order as to costs.