Smt. Thippamma and Sri. Shivashankarappa @ Shavkarappa vs Sri. U. Manjunath

K. N. Keskavanarayana

This appeal by Defendants-1 & 2 in O.S. No. 38/2006 on the file of the I Additional Civil Judge (Jr. Dn.) and JMFC, Chitradurga, is directed against the judgment and order passed by the Principal Civil Judge. (Sr. Dr.) and CJM, Chitradurga, allowing the said appeal and setting aside the judgment and decree dated 28.08.2008 passed by the trial Court dismissing the said suit filed by the respondent/plaintiff. The respondent/plaintiff filed said suit against the appellants/defendants for declaration that the plaintiff has got common right; and common possession over the EF & ED suit schedule walls and for permanent injunction restraining the defendants from destroying those walls and from putting-up any window or door in the said common wall. The plaintiff inter alia contended that he owned house bearing katha No. 89 measuring 76+53/2: East-West, 65 Ft : North-South situated in J.N. Kote Village. Challakere Taluk. Chitradurga District, whereas the defendant is the owner of the property lying to East and South of the plaintiffs property. The wall marked as EF and ED In the suit sketch are common wall which lies to the East and South of the plaintiff ''s property and West and North of the defendants'' property and that the defendants are trying to meddle with the said common wall by putting-up doors and windows.

The defendants contested the suit inter alia contending that it is not a common wall and the wall is within the property owned by him and therefore, the plaintiff is not entitled for any relief.

During the pendency of the suit a commissioner was appointed for local inspection and to submit a report. The Commissioner after measuring the properties of both the plaintiff and the defendants with reference to the actual situation of the wall submitted his report.

The parties led evidence In support of their contentions. The trial Court on assessment of oral and documentary evidence and by observing that the commissioner has not stated in his report that EF and ED in the suit sketch are the common walls, dismissed the suit of the plaintiff holding that the plaintiff failed to prove that those two walls are common walls.

In appeal by the plaintiff, on reassessment of oral and documentary evidence and in the light of the specific report of the commissioner and also his oral evidence, wherein he has categorically stated that the two walls are common walls, as they are only walls in between the properties of the plaintiff and defendants, the Lower Appellate Court held that both the walls are common walls over which, the defendants have no right to put-up any doors or windows and also the defendants have no right to meddle with the said walls. In this view of the matter, the Lower Appellate Court allowed the appeal, set aside the judgment and decree of the trial Court and decreed the suit as prayed for. It is against this judgment of the Lower Appellate Court, the defendants have presented this appeal.

I have heard the learned counsel for the appellants. Perused the judgments under appeal and also the records secured from the Courts below.

There is no dispute that the plaintiff as well as the defendants are the owners of the adjoining properties and that the property of the plaintiff is both towards west and north of the defendants'' property. The description of the property as in the suit sketch is not in serious dispute. The Commissioner, who inspected the properties of both the plaintiff and defendants, submitted a report after measuring the properties. The Commissioner has also noticed that there is only one wall between the properties of the plaintiff and defendants, which is described as EF and ED in the suit sketch. The Commissioner in his report has noticed that the construction put-up by the defendants measures 24.8 ft: East to West and 35 ft. 10 inches : North to South. On the basis of the measurement, shown in the sale deed under which the defendants claims to have purchased the property, the Commissioner has stated, that, the defendants have put-up construction in the area larger than one purchased by him. Under these circumstances, the Commissioner has reported that the two walls are common walls. In fact, from the report of the Commissioner and the measurement of the property claimed by the defendants under sale deed-Ex.D3, it is clear that he is in possession of more area than what he has purchased. As per the sale deed-Ex.D3, the measurement of the property purchased by him Is 8 yards East to West and 10 yards: North to South i.e., 24x30 feet whereas, the building constructed by the defendants, as per the Commissioner''s report, measures 24 ft. 8 inches: East to West and 35 ft. 10 inches: North to South. The measurement shown is wall to wall inside the house of the defendants. From this measurement, it is Clear that the defendants have constructed building in the area more than what they claimed to have purchased. There is only one wall as reported by the Commissioner. Therefore, the Lower Appellate Court has rightly held that it is a common wall. Under these circumstances, the finding recorded by the Lower Appellate Court, which is the last Court on facts, is in accordance with the evidence on record. The finding of fact recorded by the Lower Appellate Court is on proper appreciation of evidence. The Said finding recorded by the Lower Appellate Court cannot be termed as perverse or as illegal. The Lower Appellate Court has assigned cogent and acceptable reasons as to how the trial Court has committed error in dismissing the suit of the plaintiff.

The trial Court as could be seen from its judgment has dismissed the suit of the plaintiff only on the ground that in the title deed of the plaintiff nor in the title deed of the defendants there is no reference to the common wall and that the commissioner has not stated as to whether the wall noticed by him is common wall or not. The Commissioner was not expected to state as to whether it is a common wall or not. He is required to report about the actual existence of the wall at the spot. It is for the Court to give its finding whether it is a common wall or not. The trial Court for irrelevant reasons has rejected the claim of the plaintiff, ignoring the evidence on record. Having regard to the evidence on record, the Lower Appellate Court has rightly held that the judgment of the trial Court suffers from perversity being contrary to the evidence on record. Therefore, the Lower Appellate Court is justified in interfering with the said judgment of the trial Court. The findings recorded by the Lower Appellate Court being questions of fact, this Court sitting in second appeal cannot reappreciate the evidence and record a different finding. Since the finding recorded by the Lower Appellate Court does not suffer from any illegality or irregularity, I find no grounds to entertain this appeal. It is not pointed out that the judgment of the Lower Appellate Court is contrary to the evidence nor it is contended that the Lower Appellate Court has ignored any material evidence on record. In this view of the matter, I find no merit in this appeal. Accordingly, the appeal is dismissed.

14.12.2011

ORDER ON ''BEING SPOKEN TO

On 05.12.2011, when this appeal had been listed for admission, after hearing learned Counsel who appeared before the Court on that day, this Court by a considered order held that no question of law much less the substantial question of law arises for consideration and therefore, the appeal came to be dismissed.

Before the judgment could be signed, learned Counsel appearing for the appellants filed a memo for posting the matter for ''Being spoken to'' on the ground that he has some points to urge to show that the appeal involves substantial question of law for consideration by this Court. On such memo, the matter is listed today for ''Being spoken to.

I have heard Sri. B.M. Siddappa, learned Counsel for the appellants.

Submission of learned Counsel for the appellants is that, the lower appellate Court has not considered the oral evidence on record and he has proceeded on mere assumptions and presumptions to the effect that the wall between the two properties are common walls though the respondent-plaintiff has not placed any evidence to establish that the walls existing between the two properties are common walls. He also pointed out that though the lower appellate Court records a finding that the plaintiff has not established any intended act by the appellants-defendants in meddling with the walls, has proceeded to decree the suit by reversing the judgment of the trial Court.

I have bestowed my considerations to the said submissions.

No doubt, in the documents produced by the respondent-plaintiff before the trial Court there is no mention about the existence of common walls. As held by the lower appellate Court mere absence of such mention in the sale deed, would not indicate that the walls are not common walls. On the other hand, the commissioner who visited the spot held local inspection and submitted a report along with the sketch after measuring the properties indicating that the appellant-defendant is in possession of the larger area than what he produced under the registered sale deed. The measurement shown in the commissioner''s report is the measurement from wall to wall inside the house of the appellants-defendants.

Having regard to this factor, the lower appellate Court has recorded a finding that the walls existing between the properties of the defendants and plaintiff are common walls and there is no dispute that there is only one wall between the two properties. Having regard to the contents of the commissioner''s report, which is not challenged by the appellants-defendants, the findings recorded by the lower appellate Court that the walls existing between the properties of the appellants-defendants and respondent-plaintiff are common walls is sound and reasonable having regard to the material on record. Therefore, it does not call for interference by this court. Under these circumstances, I find nothing to differ from my judgment already dictated dismissing the appeal. Hence, as per the order dated 5.12.2011, the appeal stands dismissed.