Siddamma and Others vs Umakant

A.N. Venugopal Gowda, J.—These appeals are by the plaintiff. The defendant filed O.S. No. 39/2009 in the Court of Principal Civil Judge at Humnabad against the respondent, to pass decree of perpetual injunction with respect to open space, measuring 20.2"x18ft of property bearing GP No. 1-25, situated at Dhubalgundi village, taluk Humnabad. The respondent/defendant filed cross-objection and also O.S. No. 75/2009 against the appellant(s) to pass decree of declaration of joint ownership in respect of the suit wall and for consequential relief of perpetual injunction, apart from other reliefs.

The respondent is the owner of property bearing GP No. 1-24. The properties of the parties are situated adjoining to each other. The vendor of the appellant and the respondent is common, examined in the suit as DW.3. Both suits and the counter claim having been contested, issues were raised separately. The appellant having filed an application to club the suits, was allowed by an order dated 30.01.2010 and the suits were clubbed for holding common trial. An application having been made, a Court Commissioner was appointed to conduct local inspection and the report submitted was not challenged. In order to prove the case of the appellant, she got herself examined as PW.1 and marked Exs.P1 to P34. In order to rebut the case of the appellant and to prove his counter claim and the claim made in O.S. No. 75/2009, the respondent got himself examined as DW1 and examined two persons as DWs.2 and 3 and marked Exs.D1 to D7.

With the consent of learned advocates on both sides, the suits having been clubbed and common evidence having been recorded, the issues were recasted on 18.07.2012. The recasted issues are:

"1. Whether plaintiff proves that she is in actual and physical possession of suit property including the wall situated between her house and house of defendant?

Whether the plaintiff proves that the wall situated between her house and house of defendant is her exclusive wall?

Whether the defendant proves that the suit wall situated between his house and house of the plaintiff is the common wall between him and plaintiff?

Whether defendant proves that the order passed by Taluka panchayat in AP No. 1/97-98 is null and void?

Whether plaintiff proves interference by the defendant as alleged in the plaint?

Whether the defendant proves interference by the plaintiff is alleged in the counter claim?

Whether the plaintiff is entitle for the relief claimed in the plaint?

Whether the defendant is entitle for the relief claimed in the counter claim and claimed in O.S. No. 75/2009?

What order or decree?"

On appreciation of the oral and documentary evidence led in the case, the trial Court answered recasted issue Nos. 1, 2, 4, 5 and 7 in the negative, recasted issue Nos. 3 and 6 in the affirmative and recasted issue No. 8 partly in the affirmative. O.S. No. 39/2009 filed by the appellant was dismissed. Counter claim made by the respondent in O.S. No. 39/2009 and the claim made by him in O.S. No. 75/2009 was decreed in part. The wall existing between the house of the plaintiff and the defendant was declared as the common wall of the parties and the plaintiff was restrained from causing interference to the use and enjoyment of said wall by the defendant.

R.A. No. 24/2012 was filed against the decree passed in O.S. No. 39/2009. The following points were raised for consideration by keeping in view the rival contentions and record of the case:

"1. Whether the appellant/plaintiff proves that the judgment and decree passed by the trial Court is perverse, arbitrary and this Court interference is necessary?

To what order or relief?"

On a fresh assessment and appreciation of the oral and documentary evidence led by the parties, the appellate judge held that the property in dispute is the common wall and as a consequence dismissed the appeal.

Assailing the decree passed in O.S. No. 75/2009 dated 01.08.2012 by the trial Judge, R.A. No. 25/2009 was filed in the Court of Senior Civil Judge at Humnabad. Considering the record of the case and rival contentions, following points were raised for consideration:

"1. Whether the appellants/defendants proves that the judgment and decree passed by the trial Court is perverse, arbitrary and this Court interference is necessary?

To what order or relief?"

On a fresh assessment and appreciation of the oral and documentary evidence led by the parties in the case, it was held that the judgment/decree passed by the trial Court is not perverse or arbitrary and the appeal having been found to be devoid of merit, was dismissed.

RSA No. 200136/2014 is directed against the judgment and decree passed in R.A. No. 24/2012, affirming the judgment and decree passed in O.S. No. 39/2009. RSA No. 200137/2014 is directed against the judgment and decree passed in R.A. No. 25/2012, affirming the judgment and decree passed in O.S. No. 75/2009.

Sri A.M. Biradar, learned advocate, contended that the Courts below have committed error and illegality in granting decree of declaration that the wall existing between the property of the plaintiff and the defendant, shown in Ex. P7 ''W to ''Z'' as common wall and in granting decree of injunction, despite the plaintiff being in lawful possession and enjoyment of the suit property, as on the date of filing of the suit. Learned counsel contended that after recasting of the issues, opportunity to adduce the evidence having not been given, the impugned Judgments are vitiated. Reliance was placed on the decision of this Court in Perikal Malappa Vs. T. Venkatesh Gupta--> . Learned counsel submitted that the case of the appellants having not been correctly appreciated, the impugned judgments/decrees as having given raise to substantial questions of law.

Sri Sachin M. Mahajan, learned counsel for the respondent, on the other hand, by referring to the record of the case, submitted that there being correct appreciation of the record of the case and in view of the concurrent finding of fact, well supported by the evidence, both oral and documentary, no substantial question of law has arisen for consideration and hence, these appeals are liable to be rejected.

Perused the record and considered the rival contentions.

Exs.D1, D2 and P2 are undisputed documents. DW.3 is the common vender of the parties, who executed the sale deeds, Exs.D2 and P2. First sale was made in favour of the respondent and sale deed was executed. DW.3 sold, subsequently, the adjoining property as per Ex. P2, to the appellant. The sale deed shows the wall existing between two properties to be the common wall. PW.1 has admitted with regard to existence of common wall between her property and that of the defendant. The existence of Seri is not forthcoming in the said sale deeds. The Court Commissioner appointed has submitted the report and the same was not challenged by the parties. The report shows that the wall shown in Ex. P2 is a common wall and there is no parallel wall between the house of the plaintiff and the defendant. The evidence of DW.3 is credible and is consistent with the recitals in the title deeds. In view of the said circumstances, the Courts below have rightly held that the plaintiff/appellant has failed to prove her exclusive possession of the portion of the common wall/suit property and failed to prove her absolute ownership over the same. The defendant having proved that the suit wall in O.S. No. 75/2009 is the common wall, between him and defendant No. 1, it was held that he has right over the said wall by virtue of sale deed in his favour, executed by DW.3.

The trial Court on appreciation of the oral and documentary evidence on record has declined to accept the case of the appellants. The trial Court has recorded positive findings based on the admissions of PW.1 and the undisputed record of the case, including that of the Court Commissioner''s report. The lower appellate Court, which is final Court of fact, has confirmed the finding of the trial Court, regarding the plaintiff failure to establish the exclusive right over the suit wall and upheld the decree of the trial Court with regard to suit wall being a common wall and the non-existence of Seri. The findings were not shown to be perverse or illegal.

The judgment relied by Sri A.M. Biradar, learned advocate, has no application to the present case, since the issues separately framed earlier in the two suits, was recasted with the consent of learned counsel on both sides and thereafter, arguments of the learned advocates was heard by the trial Judge and the suits were decided. In the case of Perikal Mallappa (supra), issues having been recasted after the argument was heard and suit having been decided without notifying the parties with regard to the recasting of issues, exception was taken. The factual scenario in the present case is different and hence the said decision has no application.

The question of existence and enjoyment of the suit wall is essentially one of fact and the same has clearly been established by the respondent by examining the common vender/DW.3 and by producing the title deeds, which show the suit property, as the common wall.

There is neither any misreading of the evidence nor omission to consider the relevant evidence. Findings having been recorded with reference to the oral and documentary evidence led by both parties and having not been shown to be perverse, there is no scope for interference, within the parameters of Section 100 CPC.

As these appeals do not involve any substantial question of law, same cannot be entertained. Hence, both the appeals stand rejected. Ordered accordingly.