T.R. Vishwanath vs Manjukumari and Others

B. Sreenivas Gowda, J.—This second appeal is by the plaintiff in the suit, challenging the concurrent Judgment and Decree of the Courts below in dismissing the suit brought for the relief of permanent injunction.

I have heard learned counsel for the appellant and perused the Judgment and Decree of the Courts below.

For the sake of convenience, the parties are referred to as they are referred to in the trial Court.

The case of the plaintiff is that he is the owner in possession of the suit house property bearing Municipal Assessment No. 4794/3303, situated at M.G. Road, Chikmagalur and it is the ancestral property of the plaintiff. The suit house is a old one, built about 60 years back. During the year 1970, the plaintiff got renovated the centre of the house measuring 65 ft. in length, in which there was a passage at the old portion of the house i.e., after the renovated portion towards west. The said lane was having the width of 5 1/2 ft. and length of 70 ft. from the house of the plaintiff towards the north, which reaches the conservancy lane situated after the house of the defendants. The said passage divides the house of the defendants into two houses. The plaintiff during the time of renovation, closes the door put to the house leading to the passage. The plaintiff at the time of renovation of the central portion, put up the first floor to the renovated portion to get air and light. The plaintiff has put up a welded mesh measuring 5 ft. in height and 60 ft. in length to the first floor of the renovated portion of the house. The entire wall was situated to the north of the plaintiffs house. The thickness of the said wall is 1.3 ft. to 1.6 ft. To the north of the said wall, the defendants house is situated and it is at lower level than the house of the plaintiff. The vendors of the house of the defendants viz., Smt. Sarojamma and her husband Sri. M.S. Shanthakumar with an intention to sell the said house to the intending purchasers and to fetch good price to their house tried to reduce the thickness of the wall and also tried to close the welded mesh, which was fixed to the upstairs wall of the plaintiff. Hence, the plaintiff filed a suit in O.S. No. 212/2000 for permanent injunction to restrain the vendors not to alter the wall belonging to the plaintiff. Thereafter, the said vendors have sold their house to the defendants under two Sale Deeds dated 27.04.2001. In the said suit, learned counsel for the vendors of the defendants filed a memo stating that his clients have sold the property to the defendants. While executing the Sale Deeds, the vendors have included the wall belonging to the plaintiff and have sold the property to the defendants. The defendants after purchasing the property have taken up renovation work hurriedly. Under the guise of renovation of the house property, they are trying to reduce the thickness of the wall and also tried to close the welded mesh to prevent air and light to the first floor of the house of the plaintiff. Hence, the plaintiff has brought the suit for the relief of permanent injunction, restraining the defendants from reducing the thickness of the wall.

The defendants after entering appearance in the suit, have filed written statement inter alia denied the measurement of the suit property and the averments that during 1970, the plaintiff got renovated the center of the suit house measuring 65 ft. in length, existence of a lane or alleged passage at the old portion of the house of the plaintiff, which divides the house of the defendants into two halves and during renovation, the plaintiff closing the passage and putting up welded mesh measuring 5 ft. height and 55 ft. length to get air and light to the renovated portion of the house. The defendants have contended that they have right over the southern wall of the house property, which they have purchased and it was agreed by the father of the plaintiff vide two Agreements dated 23.06.1942 and 24.12.1968 and they contended that the father of the plaintiff executed the said Agreements in favour of M.L. Siddappa Shetty i.e., father of the second vendor of the defendants and Agreement dated 26.03.1942 executed by T.K. Ramaiah Shetty in favour of Siddappa Shetty was registered and in the Agreement dated 24.12.1968, the father of the plaintiff has admitted that he has obtained license to construct rooms in the middle portion in the upstairs; the wall on the north of his property belongs to the father of the defendants vendors and that he has no objection for late Sri. Siddappa Shetty to raise his wall. It is further contended that while raising the wall of the defendants, it becomes necessary to close the wire mesh existed at the present and they have no intention to raise the wall but, they have right to raise the southern wall of the property of the defendants as mentioned in the Agreement dated 24.12.1968. It is with these among other grounds, they prayed for dismissal of the appeal.

The trial Court based on the rival pleadings of the parties framed the following issues:

"1) Whether plaintiff proves that he has got welded mesh to get air and light to upstairs and has put up zinc sheet to the wall?

2) Whether plaintiff proves that defendants are trying to reduce the thickness of the wall, closing the mesh and removing the zinc sheet?

3) Whether plaintiff proves that he is entitled for injunction as prayed for?

4) What decree or order?"

The plaintiff in support of his case has examined himself as P.W.1 and has produced 4 documents, which were marked as Exs. P1 to 4. On behalf of the defendants, the 2^ defendant was examined as D.W.1 and the documents produced by them were marked as Exs. D1 to 8. The trial Court after hearing learned counsel appearing for the parties and considering the oral and documentary evidence on record, has answered issue Nos. 1 to 3 in the negative and dismissed the suit. Aggrieved by the said Judgment and Decree of the trial court, the appellant has challenged the same in R.A. No. 159/2008. The lower appellate Court on re-appreciation of the entire oral and documentary evidence on record, has dismissed the appeal and confirmed the Judgment and Decree of the trial Court. It is against these concurrent findings of the Courts below, the plaintiff has preferred this second appeal.

Learned counsel for the plaintiff/appellant submits that the trial Court has not appreciated the oral and documentary evidence on record in a proper manner and erroneously dismissed the suit. Even, the lower appellate Court has committed the same mistakes. He submits that the welded mesh measuring 5 ft. in height and 60 ft. in length put up by him to the first floor of the suit house property during renovation of the suit house property and both the Courts have committed an error in relying on the Agreement-Ex. D7 and dismissing the suit of the plaintiff. He submits that the finding reached by the Courts below that the wall in question does not belongs to the plaintiff is without considering the material evidence on record and that there is a substantial question of law, which needs to be considered and answered in favour of the appellant. With these contentions, he prays to allow the appeal.

Plaintiff has admitted that the property situated to the north of the suit property is belonged to the defendants and they purchased it from Smt. Sarojamma and her husband M.S. Shanthakumar under two separate sale deeds dated 27.4.2001.

Plaintiff has also further admitted that when vendor of the house of the defendants namely Sarojamma and her husband M.S. Shanthakumar tried to reduce the thickness of alleged welded mesh wall and close the same with an intention to sell their property to third party, plaintiff filed a suit in OS 212/2000 against the vendors of defendant restraining them from doing so and the said suit came to be dismissed as the vendors of defendants have filed a memo that they have sold the property in favour of defendants the matter was not carried forward.

The grievance of the plaintiff in the present suit is that vendors of defendants while alienating their property situated to the north of the suit property have included the northern wall of the suit property constructed with welded mesh which belonged to the plaintiff. Whereas, it is the case of the defendants that the alleged northern wall is not constructed out of welded mesh, it is constructed out of wire mesh and it is belonged to them.

Defendants in support of their contention that northern wall belonged to them and they are only entitled to make use of the same, have produced Ex. D7 and when Ex. D7 was confronted to the plaintiff during cross-examination, he admitted the signature of his father found in Ex. D7. Even the sale deeds produced by the plaintiff at Ex. P3 and P4 to show that he is the owner of the suit property would show that the property of Siddappa Setty is situated of the northern side of the plaintiffs property.

There is no mention in the sale deeds produced at Ex P3 and P4 regarding existence of any conservancy or passage in between the house of the plaintiff and the defendants, even in Ex. D1 and D2, the sale deed and assessment extract produced by defendants to show that they are the owners of the property situated on the northern side of the property of the plaintiff, there is no mention regarding existence of any passage between the property of plaintiff and the defendants.

Thus, from Ex. P3 and P4 and D1 and D2, it is clear that the suit property is belonged to the plaintiff and property situated towards north of the suit property is the property belonging to the defendants. Ex. D7 is 30 years'' old document executed by the father of the plaintiff in favour of vendors of the defendants and it has got presumptive value under the Evidence Act. Under Ex. D7, plaintiffs father has permitted the vendors of the defendants to raise the height of the northern wall constructed out of wire mesh thereby he recognized that northern wall does not belong to him and it belonged to Siddappa Setty the predecessor in title of the property of the defendants. On the other hand, the plaintiff has not placed any evidence to show that he has put up welded mesh and its thickness is 1.3" x 1.6".

The trial Court on appreciation of this material evidence on record was justified in holding that plaintiff failed to prove that he got constructed welded mesh on the northern side of the property to have access to the upstairs to reach the upstairs and he has put up zinc sheet to the wall and it also held that plaintiff has failed to prove that defendants are trying to reduce the thickness of the wall by closing the mesh and removing the zinc sheet and dismissed the suit. The lower Appellate Court, on re-appreciation of entire oral and documentary evidence on record was justified in dismissing the appeal and confirming the judgment and decree passed by the trial court.

I have carefully gone through the Judgment and Decree of both the Courts below and do not find any illegality or infirmity warranting my interference much less, there is no substantial question of law which arises for consideration in this appeal.

Accordingly, the appeal is dismissed.

In view of dismissal of appeal, IA filed for temporary injunction does not survive for consideration and it is rejected.