D.K. Hutchappa vs K.C. Venkatesh

Ravi V. Malimath, J.—Aggrieved by the concurrent findings recorded by both the courts below in dismissing the plaintiffs suit for injunction, the legal representatives of the plaintiff have filed this second appeal.

The parties will be referred to their ranking as referred before the trial Court.

The case of the plaintiff is that he is the absolute owner in possession of the suit schedule property by virtue of a registered partition deed dated 5.5.1942. Mutation has been effected in his name and he has been paying taxes. He is in peaceful possession and enjoyment without any interruption. The suit schedule property is presently in grama tana and he has been residing therein along with his family members. There is a passage to the Western side of his house as shown in the schedule. The defendants who are husband and wife having their house on the western side of the suit schedule property were attempting to put up a new construction without leaving set back, are trying to install windows and making provision for drain of rain water to pass through the passage left by the plaintiff and that the defendants have no right to use the same. The suit property consists of two portions. Southern portion is owned by plaintiffs'' father and northern portion was purchased by plaintiffs'' father from one Ramegowda and Dasegowda under a registered sale deed in the year 1937. The said purchased land is on the Western side of the land of Kemparamaiah to an extent of 48 x 12 years over which the defendants have no right or title. Both the portions were merged together for convenience of plaintiffs'' father and a Mangalore tiled roof house was built with a vacant space on the Northern side. The father of the plaintiffs used to grow vegetables in the said passage. The first defendant and his father lived in a small portion of mud roofed house and a hut situated on the back side of alleged property i.e., Southern side. The said house does not have windows on the Eastern side. But during the pendency of the suit, the defendants constructed a Mangalore tiled house and RCC roof in the place of the hut and installed windows in disobedience of the interim order passed by the Court. A complaint was filed by the plaintiffs son on the same day. The police directed the plaintiff to approach the Civil Court. Further the defendants managed to shift the telephone pole to the passage of the petitioner. Notice was also given to the Department to relocate the pole. But nothing has happened. Hence they filed the said suit seeking for a decree of permanent injunction restraining the defendants from putting up windows or leaving rain water and from interfering with peaceful possession of the plaintiffs and enjoyment of the suit schedule property and to grant mandatory injunction against the defendants by either demolishing or removing the water pipes and zinc sheet cover lying on the front portion of the Mangalore tiled house; to remove or close three windows and hole made on the Mangalore tiled roof house pertaining to the defendants'' property; to remove stone boulders, stone slabs and other materials placed by the defendants on the Northern side of the plaintiffs property, to shift and remove the telephone pole from the suit schedule property to its original/actual place where it was erected formerly by the defendants and for consequential reliefs.

In response to the summons, the defendants entered appearance and denied the plaint averments. It was contended that there was a galli towards the Western side of the suit schedule property and Eastern portion of the defendants property. They have left 6 feet galli for air and light and making use of said galli to reach the kitchen garden which is abutting the house on the Southern side and except this they have no other way. The said 6 feet galli is the absolute property of the defendants and the plaintiff has not left any passage as alleged; that by virtue of the temporary injunction granted by the Court, the plaintiff is attempting to encroach upon the galli for wrongful gain and to harass the defendants. Hence pleaded for dismissal of the suit.

On the basis of the pleadings, the trial Court framed the following issues for consideration:

Whether Plaintiff proves that he is the owner and in possession of the suit schedule property including the vacant space on the date of the suit?

Whether the plaintiff further proves that the defendants are putting up constructions towards the eastern side of their property without leaving any conservancy by installing windows and leaving rain water in the passage thereby causing interference with the suit schedule property?

Whether the Plaintiff proves that the defendants have put up windows to their old portion of their house and made a hole on the upper place of Mangalore tiled roof and also shifted telephone pole and put stone builders in the passage subsequent to the suit?

Whether Plaintiff is entitled to the relief sought for?

What Order or Decree?

In support of his claim, the plaintiff examined himself as PWs.4 and 3 more witnesses as PWs.1 to 3 and marked Exs.P.1 to P.31. The first defendant examined himself as DW.1 and marked Exs. D.1 to D.8.

All the issues were held in the negative and the suit was dismissed by the trial Court.

Aggrieved by the dismissal of the suit, the plaintiff filed an appeal before the Senior Civil Judge at Kunigal in R.A. No. 4/2009, which was also dismissed. Hence, the present second appeal by the Plaintiff.

The learned Counsel for the appellants contends that both the Courts below committed an error in rejecting the suit of the plaintiff; that there is substantial material to show that the suit requires to be decreed in terms of the partition deed; that the said property fell to his share and the defendants have no right, title or interest over the suit schedule property. Therefore the courts below committed an error in decreeing the suit.

The learned counsel for the respondents, on the other hand supports the impugned judgment and prays for dismissal of the appeal.

Reliance is placed by the appellants/plaintiffs on Ex.P.2 which is copy of the partition deed. I have examined the same. The partition deed would show the schedule of the property that has fallen to the share of the plaintiff wherein the schedule to the Western portion of the property is narrated as house of the defendants and a galli namely passage leading to the house of the plaintiff. Reading of the same would show that the galli does not form part and parcel of the property bequeathed to the plaintiff. It is situated outside the said property. Therefore, it is the contention of the plaintiff that the property is bequeathed to the plaintiff. However, averments made in the plaint runs contrary to Ex.P.2 itself. Therefore no injunction could be granted so far in the activity alleged against the defendants in the said galli. Even other wise, the case of the defendants is that he is seeking to put up windows of his house which is opening towards the galli. There is no material on record to show that the plaintiffs are aggrieved by opening of the windows. It cannot be said that there is any interference by the defendants in opening the windows. Therefore prayer No. 1 in respect to putting up of the windows is unacceptable and the same does not arise for consideration.

It is an admitted fact that the said galli is for the usage of both the plaintiff and the defendants. If the defendants are using the same for letting out the rain water, I do not find any merit in the contention of the plaintiffs that the plaintiffs would be aggrieved by such an action. Further directing removal of water pipes and windows also does not arise for consideration.

The last prayer of the plaintiffs was for a direction to remove the telephone pole from the suit schedule property. The telephone pole is neither the property of the plaintiffs nor the defendants. It belongs to the Telephone Department. The authorities of the Telephone Department have not been made parties to the proceedings. Without the Telephone Department being made as party to the suit, there cannot be a direction/decree seeking removal of the telephone pole. Hence, this prayer also is misconceived and has been rightly rejected by the trial court.

Under these circumstances, I am of the considered view that both the courts below have considered the evidence let in by both the parties and have rightly come to the conclusion that the plaintiff is not entitled for the reliefs as sought for. In fact, the finding recorded by the trial court is that there is no material produced by the plaintiff to show that he is the absolute owner of the galli which is situated to the Western side of the property. Even though the property has fallen to his share in view of the sale deed, the galli is not part and parcel of the sale deed.

Considering the facts and circumstances of the case, I am of the considered view that no substantial question of law arises for consideration in this appeal. The entire case of the plaintiffs revolves on facts. Hence, I do not find any ground to interfere with the impugned orders passed by the courts below. Consequently, the appeal being devoid of merit is dismissed.