Dattappa Yamanappa Nagaral vs Laxmibai and Others

A.V. Chandrashekara, J—Plaintiff of an original suit in O.S. 53/97 which was pending on the file of Civil Judge (Junior Divn.), Basavana Bagewadi of Vijayapura, has filed this appeal under Section 100, C.P.C. since he is aggrieved by the divergent judgment passed by the Civil Judge (Senior Divn.), Basavana Bagewadi, in R.A. 180/03.

Several grounds have been urged in this appeal. Respondents 1 to 3 are the defendants 1 to 3 in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking in the trial court.

Plaintiff is the owner in possession of a house property bearing VPC. 263-264. Defendants 1 and 2 are owners in possession of house property bearing No. 260-261 respectively. The houses of the defendants are on the eastern side of the houses of the plaintiff and they have recently purchased the same. According to the plaintiff, the suit schedule wall ''AB'' indicated in the rough sketch appended to the plaint is a common wall of the plaintiff and defendants. A year prior to the filing of the suit, plaintiff and defendants reconstructed the said common wall from ''X'' to ''B'' to an extent of 25'' after demolition of the common wall. At the time when the common wall was demolished, there were water spouts in the wall. Since the 1st defendant intended to put up windows and water spouts, the same was objected to by the plaintiff.

The 1st defendant, taking advantage of the absence of the plaintiff, attempted to fix windows and water spouts and threatened the womenfolk of plaintiffs family. Therefore plaintiff was constrained to file a suit for the relief of declaration to the effect that ''AB'' wall is common to both plaintiff and defendants and for permanent injunction from either fixing windows or putting water spouts.

The 1st defendant has filed detailed written statement opposing the case of the plaintiff. He had questioned the very correctness of the hand sketch appended to the plaint. According to him, ''AB'' wall is not a common wall. The 1st defendant is stated to have purchased property No. 260 measuring 45'' east-west and 35'' north-south and adjacent open space measuring 36'' east-west and 31'' north-south in property bearing VPC. 261 through a registered sale deed dated 2.2.1984 for Rs. 10,000/- and is stated to have obtained a certificate and map from the Chairman, Yalawar Panchayat in 1983. According to him, there were two windows and water spouts on the western wall of property No. 260 and they had intended to restore the same while reconstructing their house. The 1st defendant had also produced a separate sketch of her claim by filing written statement. Defendants 2 and 3 have filed a memo adopting the written statement of the 1st defendant. All the defendants have emphatically denied the plaint averments and had requested the court to dismiss the suit.

On the basis of the above pleadings, the trial court framed the following issues:

Whether the plaintiff approves that the suit AB wall is the common wall of himself and defendants 1 and 2?

Whether the plaintiff proves that the defendants No. 1 and 2 are illegally trying to fix windows and waterspouts are in the said common wall?

Whether the plaintiffs alternatively entitled for the relief of mandatory injunction, as prayed;

Whether the plaintiff is entitled for the reliefs claimed?

What order or decree?

The plaintiff is examined as PW 1 and one Rajashekar Veereshwar Guttaragimath is examined as PW 2. In all 9 exhibits have been got marked. The 1st defendant is examined as DW 1 and 3 witnesses have been examined on their behalf including Basayya, vendor of the property who sold the same in favour of the 1st defendant. 3 exhibits have been got marked. Ultimately issue Nos. 1 to 4 were answered in the affirmative and the suit was decreed.

Against the said judgment and decree, an appeal came to be filed under Section 96, C.P.C. before the Civil Judge (Senior Divn.), Vijayapura and later on it was withdrawn and transferred to Civil Judge, Basavana Bagewadi, in R.A. 180/03. The said appeal came to be allowed on 6.7.2004. Being aggrieved by the said divergent finding, plaintiff has filed this appeal under Section 100, C.P.C.

The appeal has been admitted by this court on 19.8.2005 to consider the following substantial question of law:

Whether the findings of the first appellate court reversing the judgment and decree passed by the trial court and dismissing the suit of the plaintiff regarding existence of the common wall is contrary to law and material on record including the commissioner''s report?

Heard the learned counsel for the parties. Perused records.

REASONS

What exactly should be the approach of the first appellate court while upturning a well considered judgment of the trial court has been dealt with at length by a Bench consisting of three Hon''ble Judges of the apex court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 . Caution is given to the first appellate court which intends to upturn a well considered judgment to the effect that the appellate court should come to close quarters and assign its own reasons indicating where the trial court has gone wrong and what should have been the proper approach. The first appellate court, being the final court on facts, is required to re-appreciate the entire evidence on record. Evidence in a civil case will have to be assessed on the touchstone of intrinsic probabilities and a higher decree is proof as required in a criminal case, is not required. If the initial burden cast on the plaintiff is effectively discharged, the onus shifts on the other side.

Commissioner appointed by the court is examined as PW 2. In a case like this, the report of the commissioner and his evidence will have a great berating since necessary facts will be elucidated go a great way. Rajashekar, a practicing advocate of Basavana Bagewadi had been appointed by the court as commissioner. The fact that he visited the spot in the presence of parties and submitted his report is not seriously disputed. Ex. P7 is the sketch and Ex. P8 is the report submitted by him.

The common wall existing between the houses of the plaintiff and defendants is indicated by the letters ''AX'' in Ex. P7-sketch prepared by the commissioner. The existence of vacant space belonging to the plaintiff on the northern side and the house which was under construction on the eastern side of the wall is also shown. From ''X'' to ''B'' there is a well in between the houses of the 2nd defendant and plaintiff. Suggestion is put to him that he had prepared the report to help the plaintiff. It is specifically mentioned that the roof of the house of the defendants is higher by 3'' than the roof of the house of the plaintiff, and that in the wall mentioned as ''X'' x ''B'', there are two shelve. It is also mentioned that water falls on the vacant space belonging to the plaintiff. The approximate height of the common wall is 15''. While answering instruction No. 1 of the plaintiff, the commissioner has specifically mentioned that the wall indicated in ''AXB'' is a common wall and on the western side, there are four ''gootas'' and they are depicted in the sough sketch. It is also mentioned that the wall indicated in ''AX'' is the new common wall and ''XB'' is the old common wall and that there are two square shaped windows as indicated in ''C. Nothing has been elicited from the mouth of PW 2 to discredit the report and sketch submitted by him.

It was DW 2-Basayya who has sold the house to the 1st defendant about 17 years ago, i.e. in the year 1984. According to him, the western wall was the absolute wall belonging to him and plaintiff has no manner of any right or title over it and it is not a common wall. But in his cross-examination, DW 2 has specifically admitted that to the north of his house, a person by name Kondaguli lives and both these houses are attached to each other. He has admitted that the wall that existed between his house and the house of Kondaguli was a common wall and; the house he sold to DW 1 had the main door towards east.

In paragraph 5 of his cross-examination, DW 2 has specifically deposed that in the sale deed executed by him to DW 1, nothing is mentioned about the existence of open space to the west of his house. He has admitted that towards the east of the house sold by him, there were no doors. He has further specifically deposed that in Ex. D7-sale deed, he has not mentioned that the house to the north was the house of Kondaguli and that there were two doors. The relevant portion is marked as Ex. D9. The wall abutting the western side of the open space held by him and the plaintiffs house is the common wall. He has admitted that the wall extends upto Kondaguli''s house. He has feigned ignorance about the person from whom plaintiff purchased the property.

These important admissions elicited from the mouth of DW 2 have not been properly considered by the first appellate court while appreciating the evidence on record. On the other hand, the 1st defendant and DW 2 have specifically deposed that the wall runs south to north and extends upto house No. 261. DW 1 has further admitted that in the said wall, there are ''gootas'' on the side of plaintiffs house and that he had fixed the same with the permission of her father. She has admitted in paragraph 11 of her cross-examination that the said wall extends upto property No. 261 and that there were ''gootas'' and ''maadus'' on the wall facing plaintiff''s house. These important admissions elicited from the mouth of these two witnesses do support the realities noticed by the commissioner at the time of his visit. They have been noted ion Ex. P8-report and Ex. P7-sketch.

The finding given by the first appellate court is contrary to law and materials placed on record including the commissioner''s report. In fact the learned judge has not framed proper issues for consideration as required under Rule 31(a) of Order XLI, C.P.C. The points framed for consideration in paragraph 11 of the judgment of the first appellate court are as follows:

Whether the appellants prove that the affirmative findings recorded by lower court on Issue No. 1 and 2 are erroneous and legally not sustainable on the strength of material evidence placed on record?

Whether the appellants prove that the plaintiff is not entitled for declaration and mandatory injunction as prayed in the suit?

Whether the judgment and decree of the lower court requires any interference by this court?

What order?

The points so framed are not consistent with the grounds raised by the appellants in R.A. 180/03. Thus the judgment of the first appellate court did not focus on the vital issues involved and the learned judge has misdirected himself while evaluating the evidence on record. Suffice to state that the judgment of the first appellate court is incorrect and improper as the learned judge has ignored material evidence placed on record and thus great injustice is caused to the plaintiff. Thus the judgment of the first appellate court is perverse and illegal. Accordingly it is liable to be set aside.

In the result, the following order is passed:

ORDER

The appeal filed under Section 100, C.P.C. is allowed. The judgment of the first appellate court passed in R.A. 180/03 is set aside. The judgment of the trial court in O.S. 53/97 on the file of Civil Judge (Junior Divn.), Basavana Bagewadi, is restored. Parties to bear their own costs.