Rudrappa vs Basavantappa

B. Veerappa, J—The unsuccessful plaintiff filed this second appeal, against the judgment and decree dated 27.03.2010 made in RA No. 79/2008 on the file of the I Addl. Senior Civil Judge and CJM, Dharwad, dismissing the appeal confirming the judgment and decree dated 16.08.2008 made in O.S. No. 86/1995 on the file of the III Addl. Civil Judge (Jr.Dn.), Dharwad, dismissing the suit for declaration and permanent injunction.

The appellant/plaintiff filed the suit against the defendant for declaration to the effect that the plaintiff has got easementary right of air and light in the suit schedule property by way of prescription and also consequential relief of mandatory injunction to demolish the wall constructed by the defendant by closing the windows on the northern side of the plaintiff''s house and for permanent injunction restraining the defendant from construction any wall in the suit property.

It is the case of the plaintiff that he is the owner of the upstairs property bearing No. 74/2 situated at 7th block, Pudakalakatti village, Dharwad Taluk. The plaintiff has produced hand-sketch along with his plaint and the suit schedule property has been shown by letters ABCD in the annexed hand-sketch. The name of the plaintiff has been entered in the property extract as the owner and he is in actual possession and enjoyment of the suit property since 50 years. The suit schedule property is ancestral property of the plaintiff. There are three windows in the suit schedule property. Out of which, two windows have been installed towards the northern side of the said wall and one window has been installed towards the eastern side of the said wall. The plaintiff as well as his family members are enjoying the easementary rights of air and light since time immemorial without any obstruction from anybody. The defendant is the owner of the property bearing Nos. 28 and 29 situated at 7th block, Pudakalakatti village, Dharwad Taluk. The property bearing No. 29 has been constructed by tin shed. The defendant has removed the tin shed pertaining to the property bearing No. 29 and trying to construct the upstair house both in property bearing Nos. 28 and 29. The defendant is trying to construct his proposed building without the permission of the concerned Panchayat. The defendant has collected the building materials like bricks, stones and mud in the suit property. The plaintiff has approached the concerned Gram Panchayat Secretary in this regard. Accordingly, the Secretary of Pudakalakatti Gram Panchayat issued notice to the defendant on 13.02.2005 and directed him not to construct the proposed building without the permission of the Panchayat. The defendant did not cared to the notice issued by the Panchayat and trying to construct the wall in his property and also trying to close the windows of the plaintiff situated in the suit schedule property. If the defendant continues to construct the unauthorised construction in the suit property, the plaintiff will be losing his easementary right of air and light. He will be put to irreparable loss which cannot be compensated. Therefore, he filed the suit for the reliefs, as prayed for.

The defendant filed written statement and denied the plaint averments and contended that the very suit filed by the plaintiff is false, frivolous and not maintainable either in law or on facts of the case and hence, the suit of the plaintiff is liable to be dismissed. The defendant has denied that the very description of the suit schedule property as well as the hand-sketch produced by the plaintiff along with his plaint as false and also denied the physical possession of the plaintiff since 50 years and contended that he is the owner in exclusive possession of house bearing Nos. 28 & 29 situated at II Block, Pudakalkatti village, Dharwad Taluk. The property bearing Nos. 28 & 29 are the ancestral property of the defendant and the buildings in the suit properties have been in existence since time immemorial. The buildings, owned by the defendant, required some repair works in order to keep them in tact and for proper maintenance. The defendant has started the repair works in his property in the year 1995. The plaintiff has filed the suit against the defendant with an intention to harass the defendant without any right or interest in the suit schedule property. The plaintiff has filed the present suit against the defendant with concocted contentions. The dispute between the plaintiff and defendant was settled at the intervention of the village elders on 02.03.1995, but instead of withdrawing the suit, the plaintiff has created false story and continued the suit with an intention to cause irreparable loss to the defendant, etc. Therefore, he prayed for dismissal of the suit.

The trial court on the basis of the pleadings, framed the following issues and an additional issue:

(i) "Whether the plaintiff proves that description of the suit property is true and correct?

(ii) Whether the plaintiff proves that he is the owner and in actual possession of the suit property?

(iii) Whether the plaintiff proves that he has got easementary right of air and light in the suit property by prescription?

(iv) Whether the plaintiff proves that the defendant is trying to construct unauthorised structure and thereby trying to close three windows existing in the suit property?

(v) Whether the plaintiff proves that he is entitled for declaration and injunction as sought for?

(vi) What order?

Addl. Issue:

(i) Whether the plaintiff is entitled for mandatory injunction as sought for?"

In order to establish the his case, the plaintiff examined as PW-1 and three more witnesses as PWs-2 to 4 and got marked 14 documents as Exs. P-1 to 14. On the other hand, the defendant examined himself as DW-1 and four more witnesses as DWs-2 to 5 and got marked Ex. D-1. The Court Commissioner is examined as CW-1 and his report is marked as Ex. C-1.

After considering the entire material on record, the trial court held that the plaintiff failed to prove that he is the owner and in actual possession of the suit property and has failed to prove he has got easementary right of air and light in the suit property by prescription and also failed to prove that the defendant is trying to construct unauthorised structure and thereby trying to close three windows existing in the suit property. Hence, the trial court held that the plaintiff is not entitled for declaration and injunction as prayed for. Accordingly, the trial court dismissed the suit.

Against the said judgment and decree, the plaintiff has filed an appeal before the lower appellate court in R.A. No. 79/2008. The lower appellate court, by the impugned judgment and decree dated 27.03.2010, dismissed the appeal and confirmed the judgment and decree of the trial court. Against the concurrent finding of fact, the present appeal is filed.

I have heard the learned counsel for the appellant.

Sri Madanmohan M. Khannur, learned counsel for the appellant has contended that the impugned judgment and decree of the Courts below are contrary to the material on record and also contended that the Courts below have not at all considered the existence of three windows in the side wall shown by letters ABCD and has wrongly held that the plaintiff is seeking the right of relief of air and light through the property bearing Sy. Nos. 28 and 29, which property admittedly belongs to the defendant and as such held that plaintiff is not entitled for the relief sought for. He also contended that the plaintiff has not claimed the ownership or title over the suit property bearing Nos. 28 and 29 etc. Therefore, he sought to set aside the impugned judgment and decree of the Courts below. He further contended that plaintiff has made out a case for easementary right of air and light in respect of the suit schedule property for a period of 20 years and such aspect has not been considered by the courts below. Therefore he sought to set aside the judgment and decree of the Courts below.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellant.

The sole respondent though served has remained unrepresented.

It is the case of the plaintiff that he is the owner of house property bearing No. 74/2 situated at 7th block Pudakalakatti Village, Dharwad Taluk and the defendant is the owner of adjacent property bearing Nos. 28 and 29. The only contention urged before the Trial Court as well as before the Appellate Court is that while constructing the house in the property belonging to the defendant, he has not given any set back in order to receive light and air, which is obstructing the plaintiff''s property. Therefore he is before the Court. Considering the entire material on record, the Trial Court recorded a specific finding that the plaintiff has not produced any material documents before the Court to show the measurement of the boundaries in the suit property and on the basis of Ex. P1 this court cannot come to definite conclusion as to what was the measurement of the suit property and how the property of the defendant has been bifurcated from the plaintiff''s property. It is for the plaintiff to prove that the plaintiff is the absolute owner of property bearing No. 74/2 and defendant being the owner of adjacent property Nos. 28 and 29 has obstructed his right of air and light by constructing the building in his property. The plaintiff is seeking easementary right of air and light by way of prescription through the property belonging to the defendant. Therefore the property belonging to the defendant ought to have been made the suit schedule property in the plaint. Therefore, on the face of it the plaintiff failed to prove the very description of the suit property.

The documentary evidence available on record like the photocopies, negatives and the tax paid receipts are not the documents of title to the suit property, the tax paid receipts disclose that the plaintiff is paying the tax to suit schedule property. Mere payment of tax to the concerned panchayat does not create any right in favour of the plaintiff. The documentary evidence available on record are insufficient to hold that the plaintiff is the absolute owner of the upstair part of the property bearing Sy. No. 74/2.

The plaintiff is not seeking any right in respect of the ground floor of the property bearing Sy. No. 74/2 of Pudakalakatti Village. The plaintiff filed the suit against the defendant for declaration to the effect that the plaintiff has got easementary right of light and air in the suit property by way of prescription and also for consequential relief of mandatory injunction. The plaintiff specifically pleaded in the plaint that he is the owner in actual possession and enjoyment since 50 years. The suit schedule property is the ancestral property of the plaintiff, but the documentary evidence available on record does not disclose the title of the property in respect of the suit property. Ex. P1 is the house tax assessment register for the year 1995 and Exs. P2 and 3 are the house tax assessment register pertaining to the defendant''s property. The remaining documents available on record are the photocopies of certain structures. The ownership of the plaintiff does not indicate the documentary evidence produced by the plaintiff. The Trial Court has further recorded a finding that the plaintiff has not given any set back in his property and the property of the defendant is situated adjacent to the plaintiff''s property.

Under these circumstances, the plaintiff cannot say that the defendant has to construct his proposed wall by keeping set back for the purpose of light and air. It cannot be said that the plaintiff is entitled for suit relief, since the plaintiff himself has not given any set back for the purpose of light and air in the property and the plaintiff has not produced any material for having obtained permission from the very panchayath to put up the construction. Unless the property of the plaintiff and defendant is legally bifurcated, it cannot be said that the construction work of the defendant is illegal in the absence of any material from the concerned panchayath.

The learned counsel for the plaintiff also relied upon Ex. D1 but no compromise has been reported before this Court by virtue of Ex. D1. The Trial Court also recorded a finding that the defendant has specifically deposed during the course of evidence that suit property Nos. 28 and 29 belongs to him and the property bearing No. 74/2 is situated adjacent to his property. He further deposed that he has obtained permission from the concerned Panchayath, but has not produced any document in this regard. It is for the concerned panchayath to take appropriate action even if the defendant has not obtained permission form the panchayath. Merely not obtaining permission from the concerned panchayath is not a ground to believe that the plaintiff is entitled to the suit relief sought in the plaint. The plaintiff has to stand on his own legs and prove his case. The weakness of the defendant is not a ground to draw the decree in favour of the plaintiff. The defendant has also led oral evidence of DWs.2 to 5. It has no consequence to the case of the plaintiff or the defendant. Ultimately the Trial Court dismissed the suit holding that the plaintiff is not entitled to any relief.

On re-appreciating the entire oral and documentary evidence on record the Lower Appellate Court considering the provisions of Section 15 of the Indian Easementary Act, 1982 (hereinafter referred to as ''the Act'' for short) has dismissed the appeal and categorically recorded a finding that there are no windows to the Northern side and Western side of the plaintiff''s property. The house of the plaintiff''s brother is to the north of the defendant''s property. There is said to be adjoining wall between the house of the plaintiff and the defendant. But basically the plaintiff himself has stated that the open and un-used space i.e., said to exist near his property belongs to the defendant. This is an important factor for the reason that no doubt the construction put up by the defendant is said to be without permission. But, basically the existence of easementary right of light and air is in terms of provisions of Section 15 of the Act, is to be established by the plaintiff. The Defendant is said to have been proceeded with construction in spite of the notice. The plaintiff had filed objections before the revenue authorities and thereby the defendant has violated the order of temporary injunction as the construction was proceeded with. In the light of the provisions of Section 15 of the Indian Evidence Act there was every opportunity to the plaintiff to raise the objections about not leaving set back between the two building as per the Municipalities Act. The suit therefore lacks plea regarding the set back of 3 feet that exists between the two buildings as enumerated under the Municipality Act. In the absence of such plea no relief can be granted even by moulding the relief. It further held that it is doubtful if the plaintiff can file fresh suit based on the plea of set back in view of the bar created under Order 2 Rule 2 of CPC relating to the splitting of the claim. On the basis of the pleadings, the plaintiff has sought for declaration of easementary right of air and light through the ABCD portion. Merely because the title of the plaintiff''s house is not disputed that itself cannot prove the existence of easementary right to air and light in the suit property marked as ABCD by virtue of Section 15 of the Act. The evidence of Court Commissioner - CW-1 does not help the case of the plaintiff for the reason that the plaintiff''s house is said to be facing east as per the hand sketch map and in addition there is one more door to the northern side of the house. Further he has mentioned that the measurement of the window situated below the wall to be 3 feet in width and 1 and 1/2 feet in height. Therefore, the Lower Appellate Court confirmed the judgment and decree of the Trial Court. Both the Courts below have concurrently held that the plaintiff failed to prove the description of suit property and the plaintiff also failed to prove that he is the owner and is in actual possession of the suit property and also failed to prove that he has actual right of easementary of light and air in the suit property by prescription and admittedly plaintiff has not established his right in terms of provisions of Section 15 of the Act by giving co-gent evidence. Both the Courts below concurrently held that the plaintiff has not established his right in the suit property to grant relief sought for. The same is in accordance with law and the appellant has not made out any case for interference in an appeal under Section 100 of the Code of Civil Procedure.

In view of the categorical finding recorded by both the Courts that the plaintiff himself has not left any set back in the property and therefore, he has no right to seek relief from the property of the defendant and the same is in accordance with law. There is no substantial question of law involved in the present appeal.

Accordingly, the appeal is dismissed at the stage of admission.