Kutejabi and Others vs Rafiqahmed

S.N. Satyanarayana, J.

The defendants 1 to 8 in O.S. No. 893/2008, on the file of III Addl. Civil Judge (Jr.Dn.), Belgaum, have come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of the plaintiff for the relief of permanent and mandatory injunction by judgment and decree dated 8.12.2009 passed by the trial Court which is confirmed by the lower appellate Court in R.A. No. 5/2010 in its judgment and decree dated 27.11.2012 rendered by the Court of Prl. Senior Civil Judge, Belgaum.

The brief facts leading to this second appeal are as under:

"a) The plaintiff in the original suit is one Rafiqahmed who is son of Javedali Abdulajeej Solapuri. He is the owner of the property bearing CTS No. 3195/A+B + C/1 situated in Momin Galli @ Tenginakeri Galli of Belgaum. The aforesaid property is part of larger extent of property bearing CTS No. 3195/A+B + C, which initially belong to the grandfather of plaintiff namely Abdulajeej Solapuri. The said person had two sons, the first one is Abidali Abdulajeej Solapuri who is the eldest son and the younger one is Javed Ali Abdulajeej Solapuri i.e., the father of the plaintiff. The aforesaid property namely CTS No. 3195 was divided between the two sons of Abdulajeej under a partition deed dated 27.10.1986 which is the unregistered agreement under which the property is divided between plaintiff''s father Javedali and 1st defendant''s husband Abidali who is also father of defendants 2 to 8. In the said unregistered partition agreement the parties have left a passage measuring 3 1/2'' east west and 43 1/2'' north south to reach four latrines constructed in the southern most portion of CTS No. 3195/A+B + C/2 which is allotted to the share of Abidali. Both the parties in the agreement clearly agreed and accepted the aforesaid passage of 3 1/2'' x 43 1/2'' passage leading to four latrines should be in common enjoyment of the family of Javedali and Abidali and accordingly they continued to enjoy the said property.

b) When the matter stood thus, it is seen that there is an attempt on the part of the defendants in restraining the plaintiff and his family members using the common passage leading to the toilets and also using the said four toilets which is referred to as ABCD portion in the suit sketch and the passage which is leading to the toilets from the southern end of the suit property is referred to as AEFGH portion.

c) It is stated that as and when the obstruction started, the plaintiff filed the suit for permanent injunction and it is also seen that when the matter stood thus, in the guise of a notice being received from the corporation of Belgaum, vide Ex. D.1 dated 2.8.2008, the defendants demolished a portion of toilet situated in ABCD portion of the suit sketch which forced the plaintiff to file a suit for the relief of permanent injunction and as well as mandatory injunction against the defendants for restraining the plaintiff and his family members from making use of the common passage and toilets and also to reconstruct the toilet which defendants had demolished under the guise of complying with the notice issued by the Corporation of Belgaum, vide Ex. D.1.

d) In the said suit, after service of summons defendants tried to assert that the plaintiffs have no manner of right to use the suit schedule latrines which are more fully described in para 3(1)(a) and (b) of the plaint and that the said portion being part of CTS No. 3195/A+B + C/2, which is allotted to the share of defendants, they cannot seek the relief of either permanent injunction or mandatory injunction against the defendants. In the alternative it was pleaded that in view of notice dated 2.8.2008 being issued by the Corporation, Belgaum, they had no other option but to comply with the same, as it would clearly indicate that the toilet located in disputed portion was already in dilapidated condition which otherwise would have fallen in natural course, if the defendants had not demolished the same.

e) After the pleadings were complete, issues were framed and thereafter parties were called upon to adduce evidence. Based on the oral and documentary evidence adduced by both the parties, the Courts below answered the issues which were framed in the original suit in favour of the plaintiff and held that the defendants have deliberately demolished the toilets in ABCD portion of suit sketch with a clear intention to deprive the use and enjoyment of the same by plaintiff and accordingly decreed the suit in granting the relief of permanent and as well as mandatory injunction against the defendants directing them to reconstruct two toilets which were demolished by them and to restore them to original position.

f) Being aggrieved by the same, the defendants in the original suit approached the lower appellate Court in R.A. No. 5/20 10, wherein the lower appellate Court on re-appreciation of pleadings, oral and documentary evidence with reference to the finding of the trial Court on all the issues and also the grounds urged in the appeal memo, framed the points for consideration and answered them in favour of the plaintiff by dismissing the appeal filed by the defendants in the original suit. As against the concurrent finding of both the Courts below, this second appeal is filed by the defendants in the original suit."

Heard the learned counsel for the appellant. Perused the judgments of both the Courts below with reference to pleadings and evidence. On going through the same, it is clearly seen that the lower appellate Court has assessed the pleadings and evidence available on record with reference to the right of parties regarding usage of toilets situated in ABCD portion of the suit sketch and also their right to reach the said toilets through AEFG passage which is situated on the southern side of the suit property and falling within the property bearing CTS No. 3195/A+B + C/2 and right reserved to plaintiff for usage of the said property, thereby recognizing their right of easement over the said property as enunciated in the partition agreement dated 27.10.1986 entered into between the father of plaintiff and husband of 1st defendant who is also father of defendants 2 to 8 and accordingly confirmed the judgment and decree passed by the Courts below.

Therefore this Court on re-appreciation of the material available on record being convinced with the reasoning given by both the Courts below in decreeing the suit of the plaintiff and confirming the same by the lower appellate Court, as just and proper, question of admitting this second appeal to consider the correctness or otherwise of the concurrent finding by both the Courts below does not arise. In as much as no substantial question of law arises for consideration in this second appeal. Accordingly the same is dismissed.

While dismissing this appeal this Court also feel that the conduct of defendants in forcibly driving the plaintiff to file a suit for permanent injunction and as well as mandatory injunction for seeking to reconstruct the toilets which was available to their use and enjoyment for the past several years cannot go unpunished.

In fact the material available on record would clearly indicate that the action of defendants in trying to close the common passage and also the attempt to demolish toilets is with an intention to include the said portion exclusively for their use and enjoyment to enhance the value of the property bearing VPC No. 3195/A+B + C/2 in which portion the said common passage and toilets are situated. This conduct of defendants in depriving the right of plaintiff should not be taken either lightly or ignored in casual manner. It is seen that the present dispute has commenced from the year 2008, for about 7 years the plaintiff and his family are deprived of the use and enjoyment of the common passage and as well as toilet for which they should be suitably compensated.

Hence while dismissing this second appeal this Court would impose a cost of Rs. 1,00,000/- payable by the defendants in the original suit who are appellants herein to the plaintiff in the original suit to meet the litigation expenses and also the damages that he has sustained during the said period due to deprivation of use and enjoyment of his easementary right to the toilets situated in ABCD portion of the suit schedule property for all these years.

Accordingly it is ordered that the defendants/appellants herein shall pay the cost of Rs. 1,00,000/- within 30 days from this day to the plaintiff in the original suit. If the same is not paid, the plaintiff in the original suit who is respondent herein is at liberty to levy execution and recover the same by creating a charge on the property of defendants.