Syed Abdul Hameed vs Roshanabi

A.V. Chandrashekara, J—Heard the learned counsel for the appellant. The learned counsel for the respondent is absent. The matter is admitted to consider the following substantial questions of law framed by this Court on 20.09.2006:

"1. Whether the lower appellate Court was justified in reversing the judgment and decree of the trial Court?

Whether the judgment and decree of the lower appellate Court is vitiated for not considering Ex. D4 wherein the exact location of the defendants property is shown?"

Appellant is the sole plaintiff in O.S. No. 125/1989, which was pending on the file of Prl. Civil Judge (Jrd. Dn.), Bijapur. He had filed a suit for the relief of mandatory injunction requesting the Court to grant the prayer sought by him in paragraph No. 9 of the plaint. Paragraph No. 9 of the plaint is extracted as below:

"9(a). Prayer: The plaintiff therefore prayed that the court be pleased to issue mandatory injunction to remove the tin sheets of the roof of the house of the defendant in CTS No. 226/B/2B shown in the hand sketch in letters and refix them by changing their direction to west-east and issue consequential permanent injunction restraining the defendant from letting out water spouts or opening windows or door in the northern wall of the defendant and from changing the directions of the tin sheets from west-east to south-north.

(b) Allow amendment if necessary.

(c) Allow cost of the suit.

(d) Allow such other relief as deemed fit by the court."

Plaintiffs suit was decreed after contest vide judgment dated 30.10.2001. Against the said judgment and decree, an appeal was filed by the defendant before the Court of Civil Judge (Sr.Dn.), Vijaypur and later it was withdrawn and transferred to Fast Track Court-I, Bijapur in R.A. No. 409/2004. The said appeal came to be allowed after contest vide considered judgment dated 09.09.2005. It is this divergent judgment which is called in question before this Court by filing an appeal under Section 100 of CPC.

Plaintiff has furnished the rough sketch showing the existence of his house as well as defendant''s house in CTS Nos. 227/B and 226/B/2B. At present, the defendant has fixed zinc sheets to the roof of his house and they are so fixed sloping towards northern side. As a result of the same rain water would fall in the plaintiffs house roof and cause damages to his house.

The said suit was contested by the defendant stating that he has purchased the property from one Inamadar, in the year 1961. In the said sale deed, there is a specific mention that about discharging rain water sloping from south-west and therefore, he has fixed tin sheets sloping towards northern side and same cannot be found fault with. On the basis of the above pleadings, following issues came to be framed by the trial Court as follows:

"1. Whether the plaintiff proves the correctness of the contents of the plaint rough hand sketch map?

Whether the plaintiff further proves that the defendant has illegally and unauthorisedly fixed the tin sheets, to the roof of his suit house CTS No. 226/B/2A shown by letters N.C.K.L. in hand sketch and as such bound to refix in the East-West directions?

Whether the plaintiff further proves that the defendant has no legal right, to discharge the roof water of his suit house, water spouts, no legal right, to open the doors, or windows in the suit northern wall of his house?

Whether the plaintiff further proves that the defendant has no legal right to change the suit tin sheet, to west to east from south to north?

Whether the plaintiff further proves the alleged obstructions by the defendant?

Whether the plaintiff is entitled to the reliefs sought?

What order or decree?"

Plaintiff is examined as P.W.1 and three witnesses have been examined on his behalf. 22 exhibits have been got marked on his behalf. Defendant is examined as D.W. 1 and one witness is examined on her behalf. 6 exhibits have been got marked on her behalf. Ultimately, the suit came to be decreed directing the defendant to remove the roof as shown in the sketch and re-fix the same toward west-east and further restrained for opening the water spouts, windows or doors in the northern side. Against the said judgment and decree, an appeal was filed under Section 96 of CPC in R.A. No. 409/2004. The said appeal came to be allowed after contest. Hence, this appeal.

The substantial question of law No. 2 framed by this Court is taken for consideration first since it has a great baring. Ex. D4 is the original sale deed executed by Sri. Inamadar on 16.06.1961, relating to his property. It is true that there is a prohibition for fixing the roof to the northern side and also letting drainage water to the north. Admittedly, the plaintiff is not a party to the said sale deed.

Admittedly, the plaintiffs property is his ancestral property. There is an open place belonging to the municipally towards eastern side of his property. The defendant has not produced any evidence to show as to when she constructed the ground floor. The recitals of the sale deed reveals that the defendant should not fix the windows and doors towards northern side of the property purchased by her. Though D.W. 1 has stated that about 25 years back she got constructed her house. She has not produced any licence for putting up the building, which would show the exact area over which she constructed her building and the space left at that point of time. Therefore, the trial Court has specifically held that the defendant has failed to prove that an open land measuring 17''x5'' exists adjoining her property in CTS No. 226/B/A and is towards the northern side.

The evidence in civil case will have to be evidenced on the basis of the broad preponderance of probabilities. The defence taken up by both of them will have to be properly analyzed. In the year 1989, the defendant chosen to change the direction of tin sheets from west-east to south-north. Therefore, the question of water falling on northern side of the plaintiffs property or defendant allowing the water to fall towards northern side does not arise. There is no convincing evidence on behalf of the defendant except her self-serving statement.

The evidence of the defendant does not disclose that there were any waterspouts, windows or doors. In fact P.W. 1 has specifically stated in her cross-examination to the effect that prior to filing of the suit by him, the CMC had issued notice to the defendant when she wanted to put up zinc sheets on the roof of her house. These material aspects have been taken into consideration by the trial Court to hold the existence of land measuring 17''x15'' and letting of rainwater on the northern side is for quite long time. This factual finding could not have been upset the First Appellate Court without re-appreciating the entire oral and documentary evidence. In order to upturn a well considered judgment of the trial Court, the First Appellate Court will have to categorically point out where the trial Court has gone wrong and what should have been the approach of the trial Court. The Hon''ble Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 , has succinctly explained this aspect.

In fact the contents of Ex. D4 are not favourable and even if they are favourable the same cannot be made applicable as against defendant who was not a party to the said document. Therefore, substantial question of law No. 2 framed by this Court is answer to be in the affirmative and ultimately it is answered in the affirmative.

In view of answering the substantial question of law No. 2 in the affirmative, the substantial question No. 1 is also answered in the affirmative. Hence, the judgment of the First Appellate Court will have to be reversed as the First Appellate Court was not justified in abstaining the well consider judgment of the trial Court. Hence, the following:

ORDER

Appeal is allowed and the judgment of the First Appellate Court passed in R.A. No. 409/2004 is set aside and consequently the judgment of the trial Court passed in O.S. No. 125/1989 is restored.

Parties to bear their own cost.