Mallikarjun vs Shivappa

S.N. Satyanarayana, J.—The defendant in O.S. No. 189/1987, on the file of Prl. Civil Judge (Jr. Dn.), Gadag, has 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 declaration, permanent injunction and as well as mandatory injunction.

The brief facts leading to this second appeal are that the plaintiff is the owner of suit schedule property bearing TMC No. 1261 (old VPC No. 1687), situated in Mulgund town of Gadag district. The said suit is filed by him contending that the sole defendant who is the owner of property bearing TMC No. 1209 situated on the northern side of the suit schedule property has initially tried to demolish the common wall and subsequently he raised the existing wall and thereby built first floor of his property with the wall of his building resting on the common wall and also by opening a window towards the suit property in which he has no manner of right.

Hence the present suit was filed for the relief of declaration that the wall situated between the property of himself and the defendant is common wall which is available to the benefit of both plaintiff and as well as defendant and also for the relief of mandatory injunction restraining the defendant from disturbing the right of plaintiff to enjoy the common wall and also for mandatory injunction to remove the window which is put in the first floor portion of the wall constructed above the common wall belonging to the plaintiff and defendant. In addition to that he also sought for a prayer to restrain the defendant from allowing water flowing from his bathroom entering into the property of plaintiff through a sprout which is available in the common wall.

In the said suit the defendant entered appearance and took up a contention that he is the exclusive owner of the wall existing between the suit property and his property and that the plaintiff''s predecessor having acquired the suit property under the sale deed dated 22.1.1881 from the very same person who sold the property of defendant which is situated on the northern side of plaintiff''s property. While conveying the said property, the original owner had retained the right to let out water into the property sold in favour of the plaintiff''s predecessor through a sprout available in the wall situated on its northern side and that the extent of land which is sold in his favour is outside the area where the disputed wall is situated. Therefore plaintiff is neither entitled to the relief of declaration nor temporary or permanent injunction seeking to restrain the defendant from letting the water flow into the property of plaintiff and also having a window in the first floor portion above the disputed wall opening it into the property of plaintiff.

Based on such rival contentions of the parties the trial Court framed the following issues.

ISSUES

"(i) Whether the plaintiff proves that the property of defendant TMC No. 1209 is adjoining to the north of his TMC No. 1261? - Answered in the affirmative.

(ii) Whether the defendant proves that his property TMC No. 1208 is adjoining to the north of plaintiffs TMC No. 1261 and to the north of TMC No. 1208 there is TMC No. 1209? - Answered in the negative.

(iii) Whether the plaintiff proves that he is joint owner of the suit AC wall along with the defendant? -Answered in the affirmative.

(iv) Whether the defendant proves that he is the absolute owner of suit AC wall? - Answered in the negative.

(v) Whether the plaintiff proves that the defendant is trying to demolish and reconstruct the suit AC wall, on the date of filing of the suit? -Answered accordingly (does not survive).

(vi) Whether plaintiff proves that the defendant is obstructing him in resting the roof of his alleged structure? - Answered in the affirmative.

(vii) Whether plaintiff proves that the defendant is trying to discharging bath water of property at para 1(b) and (c), into his property at 1(a) through ''More'' (outlet) in AC wall, illegally, as shown in the plaint sketch? - Answered in the affirmative.

(viii) Whether plaintiff proves that the defendant while reconstructing suit AC wall has encroached upon the plaintiffs property, as alleged? -Answered in the affirmative.

(ix) Whether the plaintiff proves that the defendant has fixed the waterspout and window in TMC No. 1209 as alleged illegally? -Answered in the affirmative.

(x) Whether plaintiff is entitled for the relief as sought for? - Answered in the affirmative.

(xi) Whether the suit is time barred? -Answered in the negative.

(xii) Whether defendant is entitled for the compensatory costs? Answered in the negative.

(xiii) What order or decree?"

Thereafter the suit went into trial. The plaintiff on behalf of his claim has got examined in all three witnesses. The 1st of the witness is himself as P.W. 1 and 2nd witness is P.W. 2 Shridhar Nagappa Mahendrakar, an independent witness residing in the same locality and another witness by name Shripati Raghavendra Betageri as P.W. 3 who is another independent witness and also resident of the same locality. In support of his case the plaintiff has produced in all 51 documents and got marked as Exs. P.1 to P.51, which are the gift deed executed by his father in his favour, assessment list of buildings and lands liable for taxation during the period from 1973-74 in TMC Mulgund till 1999-2000, correspondence between himself and corporation with reference to repair of his building, commissioner report secured by the trial Court before commencement of evidence, hand sketch map, supplementary commissioner report, photographs, negatives and other documents.

The defendant in order to substantiate his contentions in the written statement has got examined himself as D.W. 1 and in addition to that got examined another two witnesses who are residents of same locality as D.Ws. 2 and 3 and he produced and got marked in all 23 documents as Exs. D.1 to D.23, which are the sale deed dated 25.1.1983 under which the defendant purchased his property, certified copy of the sale deed under which the plaintiff''s predecessor purchased the suit schedule property, property extracts of TMC Nos. 1176 and 1177 adjoining properties and other documents arising out of correspondence between defendant and TMC, hand sketch of the house and other related documents. After recording of the evidence in the aforesaid manner, the issues which were framed are answered as stated against each issue and consequently the suit of the plaintiff is decreed as prayed for.

Against judgment and decree passed by the trial Court, an appeal is preferred by the defendant in R.A. No. 114/2003 on the file of District and Sessions Court, Gadag, wherein the lower appellate Court on re-appreciation of pleadings, oral and documentary evidence with reference to finding on the issues, framed in the trial Court has proceeded to frame the following points for its consideration.

POINTS

"(i) Whether the trial Court has erred in decreeing the suit of the plaintiff with costs?

(ii) What order?"

After hearing the parties, answered the first point in the negative and consequently confirmed the judgment and decree of the trial Court in its entirety.

As against the concurrent finding of both the Courts below, this second appeal is filed. This Court after hearing the counsel appearing for the parties regarding admission, admitted this second appeal to consider the following substantial questions of law.

SUBSTANTIAL QUESTIONS OF LAW

"i) Whether both the Courts below have rightly appreciated Ex. D.2 and Ex. D.1 which decide the right of plaintiff in the wall which is situated on northern side of suit property?

ii) Whether both the Courts below are justified in holding that the northern wall of suit property is a wall of common enjoyment between the plaintiff and defendant in the absence of recital to that effect in Ex. D.1?"

Heard the learned counsel for both parties in this appeal. Perused the judgment and decree of both the Courts below in the light of the pleadings, oral and documentary evidence available on record. On going through the same, this Court answer the substantial questions of law in the affirmative against the appellant for the following reasons.

REASONS

Admittedly the suit property and the property of defendant are situated adjacent to each other i.e., the suit property is situated on southern side of the dispute common wall. On its northern side the property of defendant is situated. It is further not in dispute that both the properties earlier belong to the very same person from whom the plaintiff''s father purchased the suit property under sale deed dated 22.1.1881 which document is produced by the defendant himself and got marked as Ex. D.2. The reading of the said document would clearly indicate though the suit property was sold to plaintiff''s predecessor, vendor to plaintiff''s predecessor had retained the right to allow water from his property to flow into the property of the plaintiff. What was understood by the parties in the said document is that the passage, which was made available in the common wall for flow of water from defendant''s property to plaintiff''s property is rain water.

It is seen that the person who had sold the suit schedule property in favour of plaintiff''s predecessor, subsequently sold the property which is situated on the northern side of suit property to the defendant''s predecessor under registered sale deed dated 8.1.1919. The defendant who is successor to the said property is trying to assert that he has right to seek flow of water from his property into the property of plaintiff through a sprout. It is seen that earlier there is one round of litigation between the plaintiff and defendant in O.S. No. 625/1921 wherein the dispute between the parties is with reference to allowing flow of water, flowing from defendant''s property to the plaintiff''s property. Incidentally at that time the defendant''s property did not have access of any other road and the only road to which it had access is through the property of plaintiff.

In that view of the matter the suit was compromised and permission was granted to the defendant to continue the said facility which was provided to him. Subsequently by the time the present suit is filed, the situation had changed, as could be seen from the commissioner report which is at Ex. P.22 as well as Ex. C and C.1 and another commissioner report which was subsequently produced and marked as Ex. P.23 which is supplementary commissioner report. Based on the commissioner report which are at Exs. P.22 and P.23 which are the report submitted by the commissioner appointed at the instance of defendant and also commissioner who was appointed at the instance of Court has given another set of report in Ex. C and C.1.

Based on this it was noticed by the trial Court that the wall which is in existence between the plaintiff and defendant''s property is common wall and it was also held that the passage that was allowed for flow of water is to allow the rain water which is through the common wall from defendant''s property to plaintiff''s property and not the drain water flowing from the bathroom into the property of plaintiff. While discussing that it was also observed by the Court below that in 1921 the situation regarding the location of plaintiff and defendant''s property being different and considering the right that sought was allowing rain water, the same was allowed.

It is further observed by the Courts below that subsequently the defendant having constructed a separate bathroom in a different place and that he also having acquired certain properties, towards eastern side of his property which have access to the bazaar street on the eastern side of his property, he can have an independent discharge pipe to the drainage line of corporation which is in front of defendant''s property on its eastern side. Therefore over passage of time the need for the right of easement to allow the rain water to pass into the property of plaintiff has exhausted and therefore the question of entertaining the same does not arise. The settlement arrived at between the parties in the long cause suit No. 625/1921 would not continue in the present circumstance. Therefore the same cannot be entertained appears to be correct and accordingly it was held that the defendant by taking advantage of the recitals in Ex. D.2 cannot eternally allow the water emanated from his bathroom into the property of plaintiff.

It was also observed that it will not be the easementary right, it will be causing nuisance to use and enjoyment of plaintiff''s property in the guise of recognizing his right of easement and in the light of two commissioner reports the trial Court felt that the existence of passage in the common wall is not in the interest of both the parties and allowing the defendant to discharge his bathroom water into the property of plaintiff cannot be recognized and upheld.

While making such observation it is further observed that the defendant while putting up construction in his property has raised the common wall which is also referred to as AC wall to appropriate the same exclusively for himself and thereby put up a window which would open into the property of plaintiff for air and light which he did not have any right even under Ex. D.1 and D.2, consequently directed him to close the said window. In effect, the suit of the plaintiff is decreed on all counts and it is seen that the reason given by the court below appears to be just and proper.

When it comes to appreciation of recitals in Exs. D.1 and D.2, it is also seen that during pendency of the suit the plaintiff is also permitted to put up construction on his property by raising the roof of his property on the common wall in which he has also a right. In that view of the matter this Court cannot find that the judgment and decree passed by the Courts below can be assailed on any count. In fact the lower appellate Court while re-appreciating the pleadings, oral and documentary evidence in the background of commissioner report has felt that the reasoning given by the trial Court in answering issues 6 to 10 appears to be just and proper which does not call for interference and accordingly by answering the sole point for consideration which was framed, in favour of the plaintiff in the original suit has dismissed the regular appeal filed by the defendant in the original suit.

Though this court felt initially that the right of the parties with reference to Exs. D.1 and D.2 is required to be appreciated in the light of pleadings, oral and documentary evidence available on record, admitted this second appeal to consider the aforesaid substantial questions of law. However on going through the entire judgment, more particularly the finding on issues 6 to 10 it is clearly seen that both the Courts below have rightly appreciated the documents Exs. D.1 and D.2 and also have discussed how a right was available to the defendant to allow the water to flow from his property to pass through the common wall to enter plaintiff''s property and how the need for that subsequently changed is rightly appreciated in holding that the defendant has access to main road in eastern side of his property and he having constructed a separate bathroom, he can utilize the same and it is further observed that neither Ex. D.1 nor Ex. D.2 permitted the defendant to let bathroom water into the property of plaintiff which would mean allowing nuisance to be created. While answering that it was also held that right of easement does not mean right of allowing nuisance to be perpetuated in the property of neighbour and consequently answered the issues in favour of the plaintiff which appears to be just and proper. In the light of the aforesaid discussion this Court find that by answering the substantial question of law in the affirmative in favour of the plaintiff in the original suit who is respondent herein, this second appeal filed by the defendant in the original suit is hereby dismissed.