G.N. Govinda Setty vs Dhobiramaiah and Others

Aravind Kumar, J.

This is defendant''s second appeal calling in question judgment and decree passed by the Additional District Judge (FTC-IV), Kolar in R.A. No. 394/2005 dated 27.03.2008 dismissing the appeal filed by defendant and confirming the judgment and decree passed by Civil Judge (Jr.Dn.) and JMFC, Srinivasapura, dated 19.10.2005 passed in O.S. No. 68/2000, whereunder suit filed by the plaintiff for declaration of his right to enjoy suit schedule property, which is a two (2) feet passage and for carrying out repairs to his walls, whitewash them and with a right of easementary and also for perpetual injunction to restrain defendant from putting up any construction over the same, had been decreed in part.

Records of Courts below have been secured and as such, by consent of learned Advocates, appeal is taken up for final disposal at the stage of Admission itself. Parties are referred to as per rank in the Trial Court i.e., in O.S. No. 68/2000.

Plaintiff claiming to be the owner in possession and enjoyment of property bearing Sy. No. 45 measuring east to west 66 feet and north to south 104 feet consisting of a residential house and vacant space, contended that he acquired title to said property by succession and it was purchased by his great grandfather under a registered sale deed dated 03.08.1919. It was also contended that on the south of said property there exists two (2) feet passage and thereafter, property of defendant is situated and passage measuring north to south 2 feet and east to west 66 feet, is used by plaintiffs and defendant for carrying out repairs of respective walls and for whitewash and neither of them have exclusive right to put up construction in the said passage. It was also contended by both the parties that they have acquired easementary right over said two (2) feet passage. Plaintiffs further contended that on account of certain disputes having arisen between the parties, defendant started putting up construction in the said two (2) feet passage by attempting to lay a pipeline, which came to be resisted by plaintiffs and it was resolved at the said panchayat that both parties would retain one (1) feet passage and as such, plaintiffs by giving one (1) feet passage from the edge of their property had put up stone slab, which came to be removed by defendant and attempted to encroach one (1) feet passage belonging to plaintiffs and as such, suit in question for declaration and perpetual injunction came to be filed.

Defendant on service of suit summons, appeared, filed written statement, denied averments made in the plaint. It was contended that said passage belongs to him and he is the absolute owner of said property. The claim of plaintiffs and he has a easementary right over the suit property, came to be denied. On the basis of pleadings of parties, trial Court framed following issues for its adjudication:

It requires to be observed at this stage itself that defendant on appearance brought to the notice of jurisdictional Court about suit having been filed by him against plaintiffs in O.S. No. 88/2000 in respect of very same suit property for the relief of mandatory injunction against plaintiffs namely for removal of stone slabs put up by plaintiffs enclosing the passage. Said suit came to be resisted by plaintiffs by filing detailed written statement. Both suits came to be clubbed and common evidence was recorded. Both parties tendered their evidence i.e., oral and documentary evidence and on appreciation of said evidence, trial Court decreed the suit in O.S. No. 68/2000 partly in favour of plaintiffs and dismissed O.S. No. 88/2000. It was declared that plaintiffs have easementary right in respect of vacant space situated between the constructed portion of plaintiffs'' house and defendant''s house for the purposes of causing repair and whitewash of walls belonging to them on the southern side and defendant was also restrained by an order of permanent injunction from putting up any construction or structure in the vacant space situated between the constructed portion of plaintiffs'' house and defendant''s house. Both parties were given liberty to make beneficial use of half vacant space adjacent to their houses and also reserved liberty to defendant to lay pipeline for drainage purpose, as morefully stated in the decree passed in O.S. No. 68/2000.

Being aggrieved by said judgment and decree passed in O.S. Nos. 68/2000 and 88/2000, defendant filed appeals in R.A. Nos. 394/2005 and 144/2006. Both appeals were heard together and after considering the rival contentions raised by respective learned advocates appearing for parties, Lower Appellate Court formulated the following points for its determination:

"i) Whether there exists a Sandudari/a lane/passage in between the houses of the plaintiff Dhobi Ramaiah and the defendant G.N. Govindashetty as claimed by Dhobi Ramaiah?

ii) Is interference to the findings of the trial Court necessary?

iii) What order?"

On reappreciation of evidence, Lower Appellate Court has came to a conclusion that passage located on the southern side of plaintiffs'' property, is to be treated as common passage and reserving liberty to both parties to make use of said common passage to draw pipeline for drainage by granting an order of permanent injunction from interfering with plaintiffs'' use of common passage. However, decree passed in O.S. No. 68/2000 by trial Court reserving liberty to make beneficial use of half vacant space adjacent to their respective houses, came to be set aside by judgment and decree dated 27.03.2008.

Defendant being aggrieved by judgment and decree passed in O.S. No. 68/2000 by trial Court as affirmed in R.A. No. 384/2005, has challenged the same in this second appeal contending inter alia that Lower Appellate Court as well as trial Court has not considered Ex. P-2 and D-17 in its proper perspective and thereby it has resulted in an erroneous judgment and decree being passed and as such, it is contended that Substantial Question of Law as formulated in the appeal is required to be formulated, adjudicated and answered in favour of appellant/defendant.

Per contra, Sri. Murali N., learned counsel appearing for respondents/plaintiffs would support the judgment and decree passed by Lower Appellate Court.

At the outset, it requires to be noticed that present appellant who is defendant in O.S. No. 68/2000, had also filed a suit in O.S. No. 88/2000 seeking relief of perpetual injunction against defendants therein who are plaintiffs in O.S. No. 68/2000, contending inter alia that he is the absolute owner of property and as such, defendants should be restrained from interfering with his peaceful enjoyment of two (2) feet passage, which undisputedly is suit schedule property in O.S. No. 68/2000. Said suit i.e., O.S. No. 88/2000 came to be dismissed by trial Court vide judgment and decree dated 19.10.2005.

Aggrieved by said judgment and decree, defendant had filed an appeal in R.A. No. 144/2006, which also came to be dismissed by Lower Appellate Court vide judgment and decree dated 27.03.2008. There is no challenge to said judgment and decree passed by Lower Appellate Court and as such, it has reached finality.

Be that as it may. Judgment and decree passed by Lower Appellate Court in R.A. No. 394/2005 modifying the judgment and decree passed in O.S. No. 68/2000, has been assailed in this second appeal contending inter alia that there is erroneous appreciation of evidence or there has been non-consideration of documentary evidence namely, Ex. P-2 -sale deed dated 03.08.1919 relating to plaintiffs in O.S. No. 68/2000. Records secured from the Courts below would indicate that in respect of disputed property there was a panchayat held between the parties, which came to be reduced into writing as per Ex. P-5. Defendant admits his signature, which is reflected in Ex. P-5 and it came to be marked as Ex. P-5(c). Said Ex. P-5 would clearly indicate that parties had agreed that there exists a passage in between the houses of plaintiffs and defendant. A division came to be made between parties in the said panchayat, whereunder it was resolved that both plaintiffs and defendant would be entitled to one (1) feet passage running east to west. This is also admitted by defendant in his cross-examination, which has been discussed by both the Courts below to arrive at a conclusion that passage in question is a common passage.

Independent witness examined on behalf of plaintiffs, has also supported the claim of plaintiffs. Defendant in his cross-examination has admitted that water used in the house of his bathroom was being discharged in between the houses of plaintiffs and defendant. If it were to be so, contention raised by defendant that both houses were separated by common wall, cannot be accepted and it is this precise exercise, which was undertaken by the Courts below to ascertain whether there exists a passage between two houses and on such exercise being undertaken, it has come to a conclusion that there exits a common passage between the houses of plaintiffs and defendant. Even in the sale deed it has been depicted that there is a on the southern side. In that view of the matter, it cannot be held that there has been non appreciation of material evidence available on record by Courts below giving raise for formulating Substantial Question of Law. Hence, contentions raised by learned counsel for appellant/defendant, are all question of facts and same has been considered, analysed and answered by the Courts below in just and proper manner. Hence, I am of the considered view that there is no Substantial Question of Law involved in this appeal which is required to be formulated, adjudicated and answered.

Hence, I proceed to pass the following:

JUDGMENT

"(i) Second appeal is hereby dismissed.

(ii) Judgment and decree passed by Lower Appellate Court in R.A. No. 394/2005 dated 27.03.2008 modifying the judgment and decree passed by trial Court in O.S. No. 68/2000 dated 19.10.2005, is hereby affirmed.

(iii) Costs made easy.