Dnyaneshwar vs Partapsingh

A.V. Chandrashekara, J.—Present appeal is filed by the 1st defendant in O.S. No. 350/1997 which was pending on the file of the III Addl. Civil Judge, (Jr. Dn.), Belgaum.

1st respondent herein is the plaintiff and other respondents were defendant Nos. 2 and 3 in the said suit. Parties will be referred to as plaintiff and defendants 1 to 3 as per the ranking given in the trial Court.

Schedule space is the common space used by the plaintiff and defendants and that an order of permanent injunction has been granted since the defendant No. 1 was trying the obstruct the said common passage. Rough sketch appended to the plaint. The properties bearing Nos. 133 and 134 originally belonged to one Krishna Ramachandra Malavi and Sri. Ajit had purchased the property bearing No. 132 in the year 1979. Thereafter, defendant No. 1 purchased the same through Ajit Vasantrao Patnekar and in both sale deeds, it is specifically mentioned that suit property is a common space along with two latrines, wash stones, well etc., The original vendor Sri. Krishna Ramachandra Malavi sold the property bearing Nos. 132 and 133 to the plaintiff on 04.02.1996 through registered sale deed and property bearing No. 134 was purchased by defendant No. 3 on 30.07.1996. Defendant No. 2 is in occupation of the said property on behalf of defendant No. 3. In all the sale deeds there is specific mention regarding the common suit property with right to use latrines, well, washing stones etc., Since the defendant tried to erect a katta creating a obstruction in the common open space that too in front of his block measuring about 2 ft. in width, 2 ft. in height, and 7 ft. in length and since defendant No. 1 has erected two poles at the points ''B'' and ''I'' as shown in the hand sketch and put ACC sheets, plaintiff was forced to file a suit for permanent injunction.

Defendant No. 1 alone contested the suit by denying all the material averments. According to him plaintiff and defendant Nos. 2 and 3 did not spend any amount in respect of repairing the latrines as per the direction of Municipal Corporation and therefore, he has kept the latrine under his lock. He has denied the erection of poles at points ''BI'' and has averred that there were earlier wooden poles and he has removed them and in their place has fixed iron poles with ACC sheets after replacing the damages sheets. It is his case that he has in no way created obstruction to the common passage Hence, he prayed for dismissal of the suit.

On the basis of the above pleadings, following issues came to be framed by the trial Court.

Issues

Whether the plaintiff proves that plaintiff and defendants have common ownership over the passage between points BCDE latrine at point ''F'' washing stone and well?

Whether the plaintiff further proves that the defendant No. 1 erected poles at points B and I along with ACC sheets put there and put up a katta in front of the plaintiffs house flower plantation and washing stone and putting lock to the latrine at point ''F'' or ''G'' illegally?

Whether plaintiff proves that the defendant No. 1 is trying to obstruct the wahiwat and use of common passage, latrine, washing stone and well as alleged in para No. 4 of the plaint?

Whether the plaintiff is entitled for the reliefs of permanent injunction as well as mandatory injunction as prayed for?

What order or decree?

Plaintiff himself is examined as P.W. 1 and 3 witnesses are examined as PWs. 2 to 4. 12 exhibits have been got marked on his behalf. Defendant No. 1 is examined as D.W. 1 and 8 exhibits have been got marked on behalf of the defendants. After analysing the evidence and hearing the arguments, suit came to be decreed as prayed for by directing that defendant No. 1 not to cause any obstruction to the common passage and the washing stones, well and latrines. He has been directed to remove the poles by erecting at points ''B'' and ''I'' as shown in the rough sketch along with ACC sheets. He has been further directed to remove the flower plants which are blocking the common passage and further directed not to put lock to the latrines.

It is this judgment which was called in question by filing an appeal u/s 96 of C.P.C. before the Senior Civil Judge, Belgaum and which subsequently withdrawn and transferred to the Court of IV Addl. District Court, Belgaum and numbered as R.A. No. 170/2004. The said appeal has also been dismissed.

It is these concurrent findings which are called in question on various grounds as set out in this appeal memo. Following 6 points have been framed by the 1st Appellate Court as found in the paragraph 11 at page 9 of the impugned judgment.

Whether plaintiff proves that the defendant No. 1 is causing obstruction in using suit passage by erecting poles at ''BI'' points and by construction of katta and also by flower plantation as alleged?

Whether plaintiff further proves that the defendant No. 1 is trying to obstruct wahiwat and use of common passage, latrines, washing stone, well etc., as contended?

Whether plaintiff is entitle for permanent injunction as well as mandatory injunction as prayed?

Whether the judgment and decree under the appeal is contrary to law, equity, procedure and material evidence on record?

Whether the judgment and decree under the appeal calls for interference?

What order or decree?

Learned Counsel for the appellant has submitted his arguments in regard to admission. In all the sale deeds relied upon by the plaintiff, there is a specific mention about the existence of common passage, latrines, washing stones and the well. What is contended by the learned Counsel for the appellant is that there was wooden poles had already been erected with ACC sheets and that because of rain and sun light they had lost utility and therefore, he has just replaced the same with iron poles and he has not put up any new structure. It is argued that 1st defendant has spent lot of money for repairing the latrines. Even if has spent money from his pocket for sewage connections to the latrines, it does not give him right to put lock to the common latrines, as found in the hand sketch. The evidence placed on record would disclose that there was no structure as such and the structure now put up on the strength of iron poles is a new structure and therefore, he cannot obstruct the common passage.

Apart from this, he has made an attempt to put up some plants in front of the common passage and this will be obstruction. In this regard, the trial Court has not only ordered the permanent injunction but also mandatory injunction to remove the obstruction. The trial Court has properly analysed the oral and documentary evidence, more particularly in the light of the passage being a common passage with common latrines, common well and washing stones. As already pointed out by the 1st Appellate Court that the 1st defendant has no right to put iron poles with ACC sheets and to raise the katta. If these obstructions are allowed, there will be lot of inconvenience in using the common passage as the house of the plaintiffs house is situated first and the house of others are situated on the hind side. The 1st Appellate Court while reassign the entire evidence as per paragraph 15 has come to the conclusion that act of the 1st defendant is prejudicial to the interest of the plaintiff as well as the other defendants. The trial Court has properly analysed the oral and documentary evidence in right perspective keeping in mind the contents of the sale deeds which depict the existence of common passage to be used by the plaintiff and defendants. The trial Court has assessed the entire evidence on the touchstone of intrinsic probabilities. The 1st Appellate Court, being the final Court on facts, has also reassessed the entire evidence by forming proper points for its consideration as contemplated u/s 41 Rule 31(a) of CPC. Suffice to state that, there are no grounds to interfere with the well considered factual findings of the trial Court which affirmed by the First Appellate Court.

In this view of the matter, the appeal is liable to be dismissed as unfit for admission.

ORDER

Appeal is dismissed as unfit for admission by upholding the judgment of the trial Court as well as the First Appellate Court.

There is no order as to costs.