D. Ramaiah vs Appajigowda

Ravi V. Malimath, J.—Aggrieved by the Judgment and decree passed by the first appellate Court decreeing the suit of the plaintiff and setting aside the Judgment and decree of the trial court dismissing the suit, the defendants have filed this appeal.

The parties will be referred to as per their rank before the trial court.

The case of the plaintiff is that the suit schedule house is the ancestral property which fell to his share in an oral partition and ever since then he is in lawful possession and enjoyment of the same. He has been paying the tax and the katha has also been made in his favour. That on 29-10-2008 at about 10.00 a.m. the defendants attempted to trespass into his property in order damage the northern wall. Hence, he filed the instant suit for a permanent injunction restraining him from interfering with the peaceful possession and enjoyment of the suit schedule property. The defendants entered appearance and denied the suit averments. In support of his case the plaintiff examined himself as P.W. 1 and another witness was examined as P.W. 2 while relying on 6 exhibits. The 1st defendant examined himself as D.W. 1 and another witness was examined as D.W. 2 and marked 15 exhibits in support of his case. The trial court framed 3 Issues and held all of them in the negative. The suit was dismissed. Aggrieved by the same, the plaintiff filed an appeal before the first appellate Court which was allowed. Hence, the present appeal by the defendants.

By the order dated 3-8-2011 the appeal was admitted to consider the following substantial question of law:-

Whether the first appellate Court is legally justified in decreeing the suit of plaintiff contrary to the right given to the defendants under the registered sale deed dated 19-5-1955? The learned counsel for the appellant contends that the order of the appellate Court is erroneous and is liable to be se aside. That the appellate Curt committed an error in dismissing the suit. That there is specific recital in Ex. D1 to the extent of granting right of easement to the defendants. The first appellate Court committed an error in decreeing the suit of the plaintiff. Hence he pleads that the recitals and the documents require to be given prominence.

On the other hand, the learned counsel for the plaintiff defends the impugned order.

Heard learned counsels. Ex. D-1 is the sale deed executed in favour of the defendants. Therein the recital as extracted by the trial court is to the extent of granting the easementary right to the defendants to go through the house of the plaintiff for various purposes. The recital is clear and cogent which does not call for any interpretation. Therefore in terms of the said recitals the defendants has been using the same for his day-today activities.

On the other hand, the plaint averments is with regard to the cause of action in filing the suit. In para-3 of the plaint the plaintiff has narrated that on 29-10-2009 at about 10.00 a.m. the defendants attempted to trespass and damage the northern wall. It is this act that brought the plaintiff to file the suit. Therefore even though the decree sought is for a permanent injunction restraining the defendants from interfering with the plaintiff''s peaceful possession and enjoyment of the suit schedule property, the same does not find favour with the plaint averments at para-3 and the cause of action as to preventing the defendants from damaging the northern wall of the suit schedule property. Beyond that, no decree could be granted. The defendants contends that they have no objection for a decree being granted to prevent them from damaging the wall since they never ever attempted to do so. Under these circumstances, I am of the considered view that the appellate Court exceeded its jurisdiction in granting the decree as sought for which runs contrary to the case of the plaintiff itself. Therefore, the substantial question law is answered by holding that the first appellate Court was not justified in decreeing the suit of the plaintiff. That the first appellate Court committed an error in decreeing the suit contrary to the right given to the defendants under registered sale deed dated 19-5-1955. Therefore at the most the decree could only be granted to what has been pleaded by the plaintiff namely to the extent of preventing the defendants from damaging the northern wall. The right of the defendants as narrated in Ex. D-1 with regard to the defendant''s right as extracted by the trial court in para-11 of its Judgment therefore would have to be sustained. Consequently, the substantial question law is answered accordingly. Therefore, the appeal is partly allowed. The suit of the plaintiff is decreed to the extent of directing the defendants not to damage the northern portion of the wall of the suit schedule property.

Ordered accordingly.