Allowed

Sri Jayakar S/O Late M Ebenezer v. Sri Parashuramappa S/O Yellappa Khandare

Karnataka HC5 Jan 2021RFA/256/2006

Case brief

AI extract

What is this about?

The High Court allowed two revisional appeals against a trial court's decree in adjacent property suits. The revisional court set aside the trial judgment, dismissing the plaintiff-in-revision suit and decreeing the other suit against it, citing misinterpretation of title documents and unreasonable prayers regarding set-off.

What did the court decide?

The judgment and decree passed in the trial court were set aside. The suit in O.S.No.7291/1990 was decreed, and the suit in O.S.No.11011/1990 was dismissed.

Sri Jayakar S/O Late M Ebenezer Vs Sri Parashuramappa… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.F.A.No.255/2006 C/W R.F.A.No.256/2006

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IN RFA No.255/2006

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BETWEEN:

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SMT.RAJAMMA SINCE DEAD BY HER LRs.

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SRI JAYAKAR S/O SMT.RAJAMMA AGED ABOUT 57 YEARS.

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BOTH ARE RESIDING AT No.47/1 15^TH CROSS, SAGAYAPURAM (DAVIS ROAD), DIVISION No.85 BANGALORE – 560 084.

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…APPELLANTS

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(BY SRI M S VARADARAJAN, ADVOCATE)

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AND:

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SRI PARASHURAMAPPA S/O YELLAPPA KHANDARE AGED 58 YEARS EMPLOYED IN ITI, R/AT No.46/1 15^TH CROSS SAGAYAPURAM (DAVIS ROAD), DIVISION No.85

…RESPONDENT

BANGALORE – 560 084.

(BY SMT. MANJULADEVI R KAMADALLI, ADVOCATE)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED17.12.2005 PASSED IN O.S.No.11011/90 ON THE FILE OF I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH No.2) DECREEING THE SUIT FOR PERMANENT INJUNCTION AND DECLARATION.

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IN RFA No.256/2006:

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BETWEEN:

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SRI JAYAKAR S/O LATE M EBENEZER AGED ABOUT 57 YEARS No.47/1, 15^TH CROSS SAGAYAPURAM (DAVIS ROAD) DIVISION No.85 BANGALORE – 560 084. …APPELLANT (BY SRI M S VARADRAJAN, ADVOCATE)

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AND:

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SRI PARASHURAMAPPA S/O YELLAPPA KHANDARE AGED 58 YEARS R/AT No.46/1, 15^TH CROSS SAGAYAPURAM (DAVIS ROAD) DIVISION No.85 BANGALORE – 560 084. ...RESPONDENT (BY SMT.MANJULADEVI R KAMADALLI, ADVOCATE)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED17.12.2005 PASSED IN O.S.No.7291/90 ON THE FILE OF I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH No.2) DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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Learned counsel for appellants in both the

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appeals present through VC. Learned counsel Smt. Manjuladevi .R Kamadalli appearing for respondents in both the appeals absent. No representation. Hence, the matters are heard on behalf of appellants and proceeded to dispose of the matters.

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These two appeals are directed against the

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judgment and decree dated 17-12-2005 passed in O.S.No. 11011/1990 and 7291/1990 by the learned I Additional City Civil and Sessions Judge, Bangalore, wherein the suit filed by the plaintiff - Parshuramappa

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in O.S.No.11011/1990 is decreed with cost and suit of the plaintiff–Jayakar Selvarayan in O.S.No.7291/1990 is dismissed with costs.

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R.F.A.No.255/2006 is filed by the defendant Nos.1 and 2 in O.S.No.11011/1990 to set aside the judgment and decree passed by the trial court wherein the suit of the plaintiff came to be decreed with costs. Similarly, R.F.A.No.256/2006 is filed by the plaintiff in O.S.No.7291/1990 to set aside the judgment and decree passed by the trial court wherein the suit of the plaintiff came to be dismissed.

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Both the plaintiff and defendants are stated to be traverse, as the plaintiff –Parashuramappa in O.S.No.11011/1990 which is filed against defendants (i) Rajamma wife of late father Selvaraj and (ii) Jayakar son of 1^st defendant-Rajamma is the defendant in O.S.No.7291/1990 which is filed by

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Jayakar S. The said Jayakar S is the appellant in both

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the appeals. Incidentally, he is the sole plaintiff in

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O.S.No.7291/1990 which is filed against Parashuramappa who is the plaintiff in

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O.S.No.11011/1990.

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In order to avoid confusion and overlapping

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while reading, it is necessary to address the parties in accordance with the rankings held by them before the trial court and also by their name personally.

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Plaintiff-Parashuramappa in O.S.No.11011/

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1990 which is filed against defendants- Rajamma and Jayakar has sought for the relief of declaration to declare that plaintiff is entitled to be protected by a 3 feet set off on the eastern side of the schedule property when the defendants put up new construction in the defendants property and to grant permanent injunction against the defendants

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restraining them from digging up and excavation abutting the plaintiff’s eastern wall of the schedule property by encroaching the plaintiff’s property by 1 ½ feet on the eastern side and for costs and other relief.

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The case of the plaintiff-Parashuramappa is

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that, he is the owner of the suit schedule property having purchased the same under the sale deed dated 3.5.1988 and since then he is in possession and enjoyment of the same. The khatha of the property has been transformed in his name.

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The suit property measures East-West 11

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feet and North-South 50 feet on both side and plaintiff has got a house on the said site as per the sketch produced.

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It is further contended that on the eastern

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side of the schedule property, there is a premises

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No.45, 15^th cross, Sagayapuram, off Davis road,

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Bangalore, which stands in the name of 1^st defendant and 2^nd defendant is managing the entire property.

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Thus, he claims that he has got all necessary documents, plan, sketch and he has constructed the building on the property exactly in accordance with the bye laws and rules and regulation of constructions made by the competent authority. The rest is interference and disturbance by the defendants, whom the plaintiff-Parashuramappa claims are trespassing into the property from the eastern side where they have a house. The claim of the defendants is the usufructs of the land of 3 feet of his property. In other words, the plaintiff claims that the property is simply a rectangular site which measures East-West

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11 feet and North-South 50 feet along with the structure. Thus according to the plaintiff the schedule property is a perfect rectangle when it measures East-

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West 11 feet and North-South 50 feet. He claims interference with the property and protection as per the prayer stated by him are very much necessary for

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his legal enjoyment and possession of the property.

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Per contra, defendant-Jayakar Selvarayan denies the claim of the plaintiff –Parashuramappa and states that he resides in the house which is adjoining to the house of Parashuramappa. The measurement pleaded by him is wrong and illegal and he is not entitled for the reliefs sought.

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Plaintiff-Jayakar Selvarayan in O.S. No. 7291/1990 sought for the relief of permanent injunction restraining the defendant -Parashuramappa his agents, servants etc., from interfering with the peaceful possession and construction of the building structure of suit schedule property and for costs and other reliefs.

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It is the case of the plaintiff-Jayakar

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Selvarayan that he is the absolute owner of the plaint schedule having acquired the same under the registered sale deed dated 15.12.1988. The suit schedule property originally belongs to his maternal grand father and after his death his Lrs executed the release deed and mother of the plaintiff in turn executed a sale deed in favour of plaintiff on 15.12.1988. Originally suit property bearing old No.916, new No.47/1 was measuring 40.1 feet EastWest and 84 feet North-South, out of which, plaintiffs had purchased North-South 44 feet on the western side; east-west 22.1 feet. Necessary title deed stands in his name.

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Defendant-Parashuramappa denied the

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claim of the plaintiff and contends that he has purchased property bearing No.46/1 from his vendor and removed the thatched portion and renovated the

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structure and living his family. It is contended that plaintiff has not left even an inch on the northern side though he has left only a set back of 1 ½ feet on the southern side. The plaintiff has to leave 3 feet as set back and when the plaintiff-Jayakar Selvarayan trying to put up the construction without leaving any set back, Defendnat-Parashuramappa filed OS

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No.11011/1990 against him.

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The parties in both the suits claim and

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contend that they are the residents of their respective properties. As a matter of fact, property of plaintiffJayakar Selvarayan in OS No.7291/1990 is on the eastern side of the house of plaintiff-Parashuramappa in O.S.No.11011/1990.

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On the basis of the pleadings and contentions of parties in both the suits, the trial court framed following issues in both the suits:

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“In O.S.No.11011/1990

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Whether the plaintiff is entitled for the 3 feet set off on the eastern side of suit property?

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Does defendant No.2 prove the proposed construction will be within the site of old building and within his compound an there is no violation of building byelaw?

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Does the plaintiff prove obstruction or encroachment by the defendants?

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Whether the plaintiff is entitled for the declaration and mandatory or permanent injunction?

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To what reliefs the parties are entitled?”

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In OS No.7291/1990

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Does the plaintiff prove the lawful possession of the suit property and construction is as per building bye law only? 2. Does the plaintiff prove obstruction by the defendant?

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Whether the plaintiff is entitled for the permanent injunction?

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The learned trial judge was accommodated

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with the following oral and documentary evidence on

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behalf of plaintiff and defendants in both the suits.

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On behalf of Plaintiff-Parashuramappa

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PW1-Parashuramappa

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Ex.P1 and 2 - Sale deeds Ex.P3 and 4 - Assessment registers extract Ex.P5 - Copy of sale deed Ex.P6 to 8 - Copies of petitions submitted to Corporation.

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On behalf of defendant-Jayakar Selvarayan

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DW1- Jayakar Selvarayan

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Ex.D1 - Photo Ex.D2 - Sketch Ex.D3 & 4 - CC of sale deed Ex.D5 - Sketch Ex.D6 to 9 - Photos and negatives

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The learned trial judge upon conclusion of

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trial, decreed the suit of plaintiff-Parashuramappa in OS No.11011/1990 and dismissed the suit of plaintiff Jayakar Selvarayan. The operative portion reads as under:

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“The suit of the plaintiff in OS 11011/90 is decreed with costs.

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It is ordered and decreed that the plaintiff is entitled to be protected by a 3 feet set back on

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the eastern side of schedule property when the defendants put up a new construction.

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It is also ordered and decreed by an order of permanent injunction, restraining the defendants, their agents etc., from digging up or excavating the land abutting the plaintiff’s eastern wall of the plaint schedule property.

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It is further ordered and decreed by an order of mandatory injunction directing the defendants form removing the structure put-up by them to an extent of 1 ½ feet on the eastern side of the plaintiff’s property and also to maintain 3 feet set back form the property of the plaintiff in all the sides.

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The suit of the plaintiff in O.S.No.7291/1990 is dismissed with costs.

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The original copy of the judgment is ordered to be kept in OS 11011/90 and copy of which shall be kept in OS 7291/90.

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Draw the decree accordingly.”

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Being aggrieved by the said judgment and

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decree, Jayakar Selvarayan who is defendant in OS No.11011/1990 and plaintiff in O.S.No.7291/1990 has filed these appeals.

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It is needless to say the claims and contentions of the parties are reflected in their pleadings. Insofar as the plaintiff in OS No.7291/1990 in substance is nothing but the written statement in the other suit. Similarly, vice versa.

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In RFA No.255/2006 appellant No.1-Smt. Rajamma died and appellant No.2-Jayakar is treated as legal representative of appellant No.1. Appellant – Jayakar is represented by learned counsel Sri M.S.Varadarajan.

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Learned counsel Sri M.S.Varadarajan,

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appearing for appellant in both the appeals submits that the plaintiff-Parashuramappa has cleverly twisted the schedule property in his pleadings to mis lead the court and the defendants Jayakar and Rajamma. Misleading by Parashuramappa is as a plaintiff in OS No.11011/1990 and the same mis leading continuous

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in OS No.7291/199 as the defendant. In the circumstances the claim and contentions is regarding the middle space existing between the house of plaintiff-Parashuramappa and that of the defendant - Jayakar Selvarayan.

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It is stated that the earlier suit is O.S.No.11011/1990 and subsequent one is O.S.No.7291/1990 since O.S.No.1011/1990 is filed before Mayohall court and then it was transferred. But the serial numbers of the original suits look as the earlier suit is O.S. No.7291/1990, but it is otherwise.

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Learned counsel Sri. M.S.Varadarajan appearing for appellant submits that Parashuramappa either as the plaintiff or as the defendant is obviously trying to usurp the gap of the property on the eastern

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side. In this connection, the schedule property

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claimed by the plaintiff-Parashuramappa is as under:

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“All the piece and parcel of land together with structures standing thereon bearing premises Corporation No.46/1, situated in 15^th cross, sagayapuram (in Davis road) Corporation Division No.85, Civil station, Bangalore, bounded on the East by:Private house formerly of Father Selvaraj, West by: Private house built in old site No.26, North by:Vacant site formerly part of the site where the schedule property is built and on the south by: Davis Road and measuring East to West 11 feet and North to South 50 feet, Mangalore tiled roofed shed; Measuring East-West 51/2 feet and North to South-6 feet and the abutting open space, measuring on the North by 51/2 feet South by 4 feet (Davis road side) and on the West by 50 feet, having Trapezium shape and one foot space from the northern wall, together with all fittings and fixtures and structures thereon.”

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As I have already stated it is a rectangle.

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At this stage, learned counsel Smt.

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Manjuladevi Kamadalli appearing for plaintiff-

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Parashuramappa who is respondent in both the appeals appears in the middle of dictation of the judgment and seeks permission to make submission.

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In the ends of natural justice, she is permitted to submit.

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Learned counsel for plaintiff-

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Parashuramappa would submit that defendant - Jayakar started weakening the wall and obstructing the house of the plaintiff by committing tress pass on the eastern side. She would further submit that all the title deeds are in favour of Parashuramappa supports that space is East -West 11 feet and NorthSouth 50 feet. She would further submit that plaintiffParashuramappa purchased the property from Mohamoodabee under the registered sale deed dated 3.5.1988 which is marked as Ex.P1 and she draws my attention to the description of the schedule in the case wherein the schedule property is stated to be the site carved out in survey No.46/1 and the measurement is East-West 11 feet and North-South 50 feet. This is the sale deed stated to have been executed by Smt.

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Mohmooda bee wife of Syed Ahmed. She would further draws my attention to the copy of the registered sale deed that the similar schedule property is stated to have been purchased by Mohamad Iqbal Shaffi on 04-02-1986 and it is marked

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as Ex.P2. Insofar as measurement of the property sold is space i.e. East-West 11 feet and North-South 50 feet including one foot space.

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Further learned counsel for plaintiff submits that Ex.P3 and 4 are the Assessment register extracts

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and the property mentioned there is measuring 11 feet x 50 feet. Plaintiff Parashuramappa also chosen to

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file the certified copy of the sale deed dated 18.9.1950 as per Ex.P5 which is the sale deed executed in favour of Jayakar Selvarayan sold by H. Rahim Khan which the title property to the defendant –Jayakar. The description of the property is a vacant site bounded on the East by: 30 feet road, West by

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property No.18, North by remaining land of vendor and South by the land of the purchaser and the measurement of the property sold therein is stated to be 38 feet x 60 feet. This is situate at Devarajeevanahalli within BBMP limit.

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From the above, the following points are amply clear:

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Both the properties are located by the side of each other. Property of Jayakar is on the eastern side to the property of Parashuramappa. Parashuramappa

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in his suit in OS No.11011/1990 or defendant in O.S.No.7291/1990 affirming states that his property measures 11 feet East-West and 50 feet North-South and that is a perfect rectangle. Not only from the sale deed, it is evidenced by municipal or corporation records. It is necessary to understand whenever a property is purchased when the measurement are

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incorporated and when no objections come the measurement stated in the deed will be incorporated, but that does not mean the proof. The revenue documents or panchayat documents for that matter municipal and even corporation matters, they mention numbers and say the mutation or other katha entry is made.

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There is no mechanism in the system that before mentioning the measurement stated in the sale deed spot inspection or measurement of property from the direction where it stands they are all not done. Because of which, the parties, more particularly, transferees go in hunt of title deed. It is a sorry state of affairs that if title will not be having a registered stamp paper as a title deeds. There are umpteen number of cases wherein the properties have been managed inherited and succeeded without going to the sub Registrar’s office in the sense they will go

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on getting it inherited by the testamentary or intestate succession or panchayath palupatti. Under these circumstances, lack of mechanism stated above definitely hamper the material rights.

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Insofar as the documents filed by the

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plaintiff are:

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Exs.P1, 2 and RTC extract Exs.P3 & 4, sale deeds of his vendor, vendors vendor wherein there is a mention of property measuring 11 feet x 50 feet.

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Sri M.SVaradarajn counsel appearing for

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appellant-Jayakar drew my attention to the document filed and marked as Ex.D3 which is a certified copy of

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the sale deed dated 22-12-1953 executed in favour of Bibijan wife of Jan Saheb. The property sold under he said document is, the property located in survey Nos. 17 and 18 of Devarajeevanahalli, bounded on East by:. West by site No.26, North by the remaining

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portion of the property in the same number and on the south by road. The measurement is shown as East-West 11 feet Alla (not), southern side East to west 11 feet and northern side 01 foot and NorthSouth by 50 feet. For a moment the sketch if it is drawn to the said measurement would be a quadrilateral. So the measurement East-West is 11 feet on the northern side and towards northern side 01 foot from the wall. This sale deed is executed in favour of Bibijan.

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The sale deed of vendor of Parushuramappa is produced as Ex.P1, which is executed by Mohaboob bi wife of Syed Ahmed. The next sale deed is Ex.P2 which is executed by Mohamad Iqbal in favour of Mohaboob bi dated 4.2.1986.

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All municipal records show the

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measurement as 11 feet x 50 feet. But in the

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assessment as I have mentioned above, there is no follow up programme before effecting the sale deed. Nor all the title deeds including Ex.D3 were produced at the time of transfer of katha. But as a matter of fact in umpteen number of cases, even after sale deeds and change of office, even 3 to 4 times original katha continues. Under the circumstances, the question that arises is, whether the particular measurement is mentioned in the ownership deed of the plaintiff and in vendor’s deed and in vendors’ vendor’s deed and when particular measurement is given and differs measurement rather a lessor measurement is seen in the earlier documents, it is nothing but the prosperity existed as mentioned in Ex.D3.

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It is necessary to mention that the following diagram would reflect the property of the plaintiff Parashuramappa as pleaded, as per his sale

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deed, as per his vendor’s sale deed and vendors’

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vendor’s sale deed is 11 feet.

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‘A’ 11feet 50 feet

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It is the diagram A and the property as

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purchased from vendor of the vendor of the vendor is

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East-West 01 foot that as under:

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Ex.D3 which is the earliest title deed i.e.

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source of title and it is written in Kannada Language.

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As I am acquainted with the Kannada language, I

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write it in verbatim and thereafter present it in English

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language in verbatim which is as under:

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“¸ÀgÉé 17 ªÀÄvÀÄÛ 18£ÉÃ £ÀA§gÀÆ d«ÄÃ£À°è £Á£ÀÄ PÀæAiÀÄªÀiÁrgÀÄªÀÅzÀÆ eÁvÁ ¨ÁQ¬ÄgÀÄªÀ F ¢£À PÀæAiÀÄ ªÀiÁrgÀÄªÀ d«ÄÃ¤UÉ ZÀÌ§A¢ ¥ÀÆgÀé ±É®é gÁAiÀÄ ¥Á¢æAiÀÄªÀgÀ ªÀÄ£ÉÃ ¥À²ÑªÀiÁ 26£ÉÃ £ÀA§gÀÆ ¸ÉÊlÄ GvÀÛgÀ¬ÄzÉÃ £ÀA§gÀÆ

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¥ÉÊQ ¸ÉÊlÄ. zÀQët qÉÃ«qï gÉÆÃqÀÆAiÀÄ ªÀÄzsÉÊ¬ÄgÀÄªÀ GvÀÛgÀzÀ PÀqÉÃ ¥ÀÆgÀé ¥À²ÑªÀiÁ 11 ºÀ£ÉÆßAzÀÄ Cr. (1) C¯Áè zÀQëtzÀ PÀqÉ (2) ¥ÀÆªÀð ¥À²ÑªÀÄ 11 Cr GvÀÛgÀzÀ PÀqÉÃ UÉÆÃqÉ¬ÄAzÀ 1 MAzÀÄ Cr GvÀÛgÀ zÀQët 50 C¬ÄªÀvÀÄÛ CrAiÀiÁ jÃw C¼ÀvÉ¬ÄgÀÄªÀ PÉÆÃ¸É ¸ÉÊlÄ AiÀiÁ PÀæAiÀÄPÉÌ ¸ÉÃjgÀÄvÉÛ.”

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Which literally means site carved out of survey Nos. 17 and 18 being bounded east by property of Selvaraya Fadri’s house, west by site No.26, north by site in the same survey number, south by David’s road. Measurement is East-West 11 feet nay towards the southern side, East-West by 11 feet and northern side one foot form northern wall and North South by 50 feet.

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The word ‘nay’ in English and the word ‘Alla’ in Kannada are mentioned at earlier times. Whenever previous word or term was wrong. And after the said letter ‘Alla’ or ‘nay’ the right term used to written. This tells upon a kind of rectification it was being done. For a moment a particular description, name

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measurement or boundary is mentioned and incidentally if it is wrong instead of striking of what was wrong written it, the scribe used to mention as ‘alla’. It is a kind of word that means ‘nay’ or ‘not’ or ‘not correct’. In this sale deed, it is not the original and the certified copy of the sale deed which implies that the sale deed Ex.D3 is copied from the volume as such measurement cannot be read.

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The learned trial judge has given her own

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meaning by observing in paragraph 9.07 is as under:

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“AiÀiÁ ¢£À PÀæAiÀÄ ªÀiÁrgÀÄªÀ d«ÄÃ¤UÉ ZÀPÀÌ§A¢ ¥ÀÆgÀß ±É®égÁAiÀÄ ¥Á¢æAiÀÄªÀgÀ ªÀÄ£ÉÃ ¥À²ÑªÀiÁ 26 £ÉÃ £ÀA§gÀÆ ¸ÉÊlÄ, GvÀÛgÀ ¬ÄzÉÃ £ÀA§gÀÆ ¸ÉÊlÄ, GvÀÛgÀ ¬ÄzÉÃ £ÀA§gÀÆ ¥ÉÊQ ¸ÉÊlÄ, zÀQët zÉÃ«Ãqï gÉÆÃqÀÆ ¬Ä ªÀÄzsÉÊ ¬ÄgÀÄªÀ GvÀÛgÀzÀ PÀqÉÃ ¥ÀÆgÀé ¥À²ÑªÀiÁ 11 ºÀ£ÉÆßAzÀÄ Cr, C¯Áè zÀQëtzÀ PÀqÉ ¥ÀÆªÀð ¥À²ÑªÀÄ 11 Cr, GvÀÛgÀzÀ PÀqÉÃ UÉÆÃqÉ¬ÄAzÀ 1 MAzÀÄ Cr, GvÀÛgÀ zÀQët 50 C¬ÄªÀvÀÄÛ Cr AiÀiÁ jÃw C¼ÀvÉ¬ÄgÀÄªÀ PÉÆÃ¸É ¸ÉÊlÄ ¬ÄÃ PÀæAiÀÄPÉÌ ±ÉÃj¬ÄgÀÄvÉÛ.”

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This is the copy of the sale deed executed in favour Smt. Beebi Jan wife of Poojotu Sab from H.Rahim Khan. It appears, because the word “alla” is used as the defendant is trying to

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claim that there is only 1^st measurement EastWest on the northern side.

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It is a sorry state of affair that interpretation

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cannot be made totally against the language of the document. No mis-chief Rule was required for interpretation.

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In the rural side, whenever a document was

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written in Kannada language, when something is wrongly, written it was normally called as prefix and if it is wrong after writing the prefix they used to say ‘Alla’ and then write the suffix. This simple

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interpretation is not understood by the learned trial judge while appreciating the evidence. Location of the property is not disputed so also as it is a vacant site. The measurements of the property claimed by the plaintiff Parashuramappa is a rectangle. It is mentioned in the sketch A and vendor of the vendor of

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the vendor wherein the same property is being

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derived the measurement are shown in sketch B which is a quadrilateral. North-South 50 feet is there and East-West the measurement northern side is 01 foot. These are all glorifying mistakes give away different dimensions to the cases and different points and disputes evolve. This tendency of wrong interpretation has to be avoided. In the circumstances, I find the judgment and decree of the trial court in OS No.11011/1990 does not stand the test of reasonability and precision legal principles are not applied, the documents are mis read which led for miscarriage of justice and it is liable to be set aside.

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The very seeking for declaration by plaintiff-Parashuramappa in a suit that whenever defendant constructs defendant has to leave a space of 4 feet and all those aspects cannot be brought before the court peremptorily. The prayer sought by the plaintiff-Parashuramappa is as under:

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“for declaration to declare that plaintiff is entitled to be protected by a 3 feet set off on the eastern side of the schedule property when the defendants put up new construction in the defendants property and to grant permanent injunction against the defendants restraining them from digging up and excavation abutting the plaintiff’s eastern wall of the schedule property by encroaching the plaintiff’s property by 1 ½ feet on the eastern side Such a kind of prayers basically are not be entertained.”

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41. Accordingly, I pass the following

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ORDER

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Both the appeals preferred by appellant-Jayakar are allowed.

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The judgment and decree passed by the learned trial judge in O.S.No.11011/1990 filed by plaintiffParashuramappa and in O.S.No.7291/1990 filed by plaintiff-Jayakar are set aside. Consequently, the suit of the plaintiff-Jayakar in O.S.No.7291/1990 is hereby decreed as prayed for and the suit of the plaintiffParashuramappa in O.S.No.11011/1990 is dismissed.

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No orders as to cost.

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In view of allowing of the appeals, I.A.No.1/2019

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filed by the appellant is dismissed as not pressed as submitted by the learned counsel for the appellant.

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Sd/JUDGE

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tsn*

Sri Jayakar S/O Late M Ebenezer v. Sri Parashuramappa S/O Yellappa Khandare

Case brief

What is this about?

What did the court decide?

Sri Jayakar S/O Late M Ebenezer v. Sri Parashuramappa S/O Yellappa Khandare

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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