Devaraddi S/O Chanrappa Nandeppanavar Vs Shivanand S/O Basappa Tarikoppa

S/O. CHANDRAPPA NANDEPPANAVAR, AGE: 38 YEARS, OCC: AGRICULTURE, R/O: BINKADAKATTI, TQ: DIST: GADAG, NOW AT EWS 319, HUDU, KARNATAKA CIRCLE, NAVANGAR – 580 025, TQ: HUBBALLI, DIST: DHARWAD.

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SUNDRAVVA

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad

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W/O. CHANDRAPPA NANDEPPANAVAR, AGE: 59 YEARS, OCC: HOMEMAKER, R/O: BINKADAKATTI, TQ: DIST: GADAG, NOW AT EWS 319, HUDU, KARNATAKA CIRCLE, NAVANGAR – 580 025, TQ: HUBBALLI, DIST: DHARWAD.

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RAMESH

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S/O. RANGAPPA NANDEPPANAVAR, AGE: 33 YEARS, OCC: AGRICULTURE, R/O: BINKADAKATTI – 582 103, TQ:DIST: GADAG.

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…APPELLANTS

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(BY SRI. C.S SHETTAR, ADVOCATE)

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AND:

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SHIVANAND S/O. BASAPPA TARIKOPPA, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: BINKADAKATTI – 582 103, TQ:DIST: GADAG.

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SHANTAWWA W/O. BASAPPA TARIKOPPA, AGE: 64 YEARS, OCC: HOMEMAKER, R/O: BINKADAKATTI – 582 103, TQ:DIST: GADAG.

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RAMESH S/O. KELLUDEPPA CHAWKKANAVAR, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: BINKADAKATTI – 582 103, TQ:DIST: GADAG. SITAVVA W/O KELLUDEPPA CHAWKKANAVAR SINCE DECEASED BY HER LRS

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KAMALAVVA W/O. RANGAPPA JEEVANNAVAR, AGE: 44 YEARS, OCC: HOMEMAKER, R/O: BINKADAKATTI – 582 103, TQ:DIST:GADAG.

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LACHAVVA W/O. PARASARADDI TARIKOPPA, (DEAD)

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VIMALAVVA W/O. GOVINDARADDI MELAMALAGI, AGE: 54 YEARS, OCC: HOMEMAKER, R/O: CHAKALABBI – 582 103, TQ: KUNDAGOL, DIST: DHARWAD.

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YALLAVVA W/O. RAMARADDI AGASANAKOPPA, AGE: 52 YEARS, OCC: HOMEMAKER, R/O: BINKADAKATTI – 582 103, TQ: DIST: GADAG.

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SAKKAVVA W/O. HOLALAPPA AGASANAKOPPA, AGE:50 YEARS, OCC:HOMEMAKER, R/O: BINKADAKATTI – 582 103, TQ:DIST: GADAG.

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…RESPONDENTS

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 R/W ORDER XLII R 1 OF THE CODE OF CIVIL PROCEDURE PRAYING TO ADMIT THE APPEAL AND CALL FOR THE RECORDS OF THE COURT BELOW AND ALLOW THE APPEAL SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.65/2020 DATED 17.08.2021 PASSED BY THE SENIOR CIVIL JUDGE COURT AND CJM

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GADAG AND THE JUDGMENT AND DECREE PASSED BY LEARNED I ADDITIONAL CIVIL JUDGE AND JMFC I, GADAG IN O.S.NO.273/2015 DATED 26.02.2020. THEREBY DECREE SUIT OF THE APPELLANTS IN O.S.NO.273/2015 AND ETC.,

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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Plaintiffs are before this Court in this appeal being aggrieved by the judgement and decree dated 26.02.2020 passed in OS No.273/2015 on the file of I Additional Civil

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Judge and JMFC, Gadag (for short ‘Trial Court’), dismissing their suit seeking relief of mandatory and permanent injunction, which has been confirmed by the judgement and order dated 17.08.2021 passed in RA No.65/2020 on the file of Principal Senior Civil Judge and CJM, Gadag (for short ‘First Appellate Court’).

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Suit schedule properties consist of house property bearing G.P.No.30A/2, 30B, open site VPC No.27, house property bearing VPC No.30A/1, and

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compound wall on the southern boundary of property bearing VPC No.27 all are situated at Binkadakatti village, Taluk and District Gadag belong to the plaintiffs. A hand sketch is produced along with the plaint. The disputed area is shown between letters ‘AB’ upto ‘V’ compound wall and ‘VC’ portion of an area in the plaint sketch.

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2.1. Plaintiff Nos.1 and 2 are the owners of house properties bearing Nos.30A/2 and 30B which are shown by letters ‘AGHI’ in the hand sketch produced along with the plaint. Plaintiff No.3 is the owner and in possession of house property bearing VPC No.30A/1 which is shown by letters ‘GHIJKLMN’. Plaintiff No.3 is also in possession and enjoyment of the open site bearing panchayat No.27 which is shown by letters ‘ABCDEFG’.

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2.2. Properties bearing VPC Nos.28 and 29 which

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are situated on the southern side of the property bearing VPC No.27 presently belonged to the defendants.

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2.3. That there is a wall as shown in the hand sketch

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between the points ‘A’ and ‘B’, ‘B’ and ‘V’ and thereafter ‘C’ on the southern side of the property in VPC No.27. That

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about two years ago, defendant Nos.1 and 2 have demolished the said wall and constructed a new RCC house and a staircase. It is further contended that the defendants after demolishing the wall between the points ‘A’ and ‘B’ of the hand sketch have created an access through the properties of the plaintiffs to reach the road on its northern side. That defendants by placing the window and drainage in the newly constructed portion have caused inconvenience and hardship to the plaintiffs. That the defendants have no right to demolish the wall at ‘ABVC’ points and to create any opening towards the properties of the plaintiffs.

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2.4. That there is a road existing towards western

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side of the properties belonging to defendant Nos.1 to 4. There is no access to the properties of the defendants through the properties of the plaintiffs except the western

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road existing in between the houses of the defendant No.3 and Ramesh Kelludeppa Chawakkanavar and Vasantareddi Tirlapur now held by Indrawwa Inamati.

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2.5. Since, the defendant Nos.1 to 4 have colluded

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with each other and trying to trespass into the properties of the plaintiffs without having any right to enter upon the same by causing damage to the southern and eastern wall of the plaintiffs’ house, the plaintiffs have filed the above suit seeking relief of mandatory injunction directing defendant No.1 to close the area shown by letters ‘V’ and ‘C’ and the area between the letters ‘A’ and ‘B’ in the hand

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sketch by constructing a compound wall and for permanent injunction restraining them from interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs.

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Defendants in the written statement have

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denied the existence and description of the suit properties. It is contended that the property bearing VPC Nos.28 and 29 of Binkadakatti village were owned by the common

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ancestors of Chawakkanavar family, which was later divided between the two brothers in which western portion of the house was allotted to the share of ancestors of defendant No.3. It is contended that the defendant Nos.1 to 4 are the close relatives. The defendant No.1 has purchased the eastern part of the property shown by letters ‘TUVCX’ in the plaint sketch, which is now bearing panchayat No.28 in terms of registered sale deed.

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It is admitted that, western boundary of the property shown by letters ‘TUVCX' is having house of Kelludeppa Rangappa Chawakkanavar as well as road. Existence of compound wall along the southern boundary of the property bearing panchayat No.27 is denied. It is contended that, the defendant got his house renovated few years ago and he has left about 3 ½ ft., passage between his property and the property of the plaintiff No.3 and he has never disturbed and damaged the property i.e, open site of the plaintiff No.3, which exists on northern side of portion of defendant No.1. It is contended that there is a public road/passage measuring approximately 8-

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10 ft., which begins in front of the house of the defendant

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Nos.2 and 3 and run towards the north. In the middle of the said road there exists a gutter for drain/waste water which flows from south to north. It is contended that, the defendants and their ancestors have been using the said public road or passage since time immemorial. It is denied that there has been no passage or road on the western side of the property of the defendant Nos.3 and 4.

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The Trial Court based on the pleadings framed the following issues:

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“1. Whether the plaintiff proves that, they in possession of the suit 1(a) and (b) properties?

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2. Whether the plaintiffs prove that, the defendants are trying to interfere into suit property open site bearing No.27 or damage to the southern and Western wall of plaintiffs property?

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3. Whether the plaintiffs prove that, the defendant No.1 open the windows, ventilators and group water spouts and door in the wall as shown as B and C in the sketch?

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4. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed in the suit?

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5. Whether the plaintiffs are entitled for the relief of Mandatory Injunction as prayed in the suit?

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6. What order or decree?”

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Plaintiff No.1 examined himself as PW1 and

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another witness as PW2 and exhibited 10 documents marked as Ex.P1 to P10. On behalf of defendants three witness were examined as DW1 to DW3 and exhibited 6 documents as Ex.D1 to D6. A Court Commissioner was appointed and has been examined as CW1 and got marked 17 documents as Ex.C1 to C17. On appreciation of evidence, the Trial Court has answered the issue Nos.1 to 5 in the negative and accordingly, dismissed the suit. Being aggrieved by the same, the plaintiffs have preferred the regular appeal in RA No.65/2020. The First Appellate Court framed the following points for its consideration:

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“1. Whether the Trial Court has erred, arbitrary and without considering the facts, holding that, the suit of the plaintiffs in dismissed?

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2. Whether the impugned Judgment and Decree of the Court below under appeal warrants interference by this court?

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3. What order?”

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On re-appreciation of evidence, the First

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Appellate Court answered the point Nos.1 and 2 in the negative and consequently, dismissed the appeal by confirming the judgement and decree passed by the Trial Court. Being aggrieved by the same, the plaintiffs are before this Court.

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Sri. C. S. Shettar, learned counsel appearing for the plaintiffs taking this Court through the impugned judgment and decree passed by the Trial Court and the First Appellate Court submits that the reasons assigned and conclusion arrived at by the Trial Court and the First Appellate Court are contrary to the evidence made available on record. He specifically refers to the Commissioner Report and the sketch prepared which are marked at EX.C16, wherein the Court Commissioner has found existence of road on the western side of the property of the defendant Nos.1 to 4 which runs East to West and takes turn towards south. However, the Trial

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Court and the First Appellate Court have found that the defendant Nos.1 to 4 have no access to the said road which is contrary to the evidence. He further refers to the deposition of DW1 wherein, the DW1 has admitted that the road shown in the sketch at ‘ONGADF’ is used only by the family of the plaintiffs and their ancestors. Thus, referring to the aforesaid aspects of the matter, learned counsel submits that the Trial Court and the First Appellate Court have grossly erred in not appreciating these aspects of the matter resulting in perversity in the judgements giving raise to the substantial questions of law in the matter.

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Heard. Perused the records.

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From the facts narrated above and the specific contention taken by the defendants, what emanates is that

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the plaintiffs are claiming their exclusive rights over the passage / space, which is earmarked as ‘ONGABF’ in the sketch, as their exclusive property.

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It is their case that defendant Nos.1 to 4, whose property situated on the southern side of the line

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mentioned as ‘ABVC’ have broken open/demolish the compound wall that existed earlier at the point ‘A & B’ and have illegally trespassed into the aforesaid passage, which was being exclusively used by the plaintiffs. It is their further case that defendant No.1 whose property situated on the south eastern corner has demolished the compound wall at the point ‘V & C’ and has enclosed the same into his property and has even put up RCC construction with staircase and windows opening towards the property of plaintiff No.3 causing hardship and prejudice to the enjoyment of the property by plaintiff Nos.1 to 3.

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The defendants on the other hand have denied the very case of the plaintiffs of they having exclusive right and entitlement to use the space earmarked as ‘ONGABF’. It is their contention that the said space having width of 8-10 ft., has been used as a passage by all the owners of the properties to reach the main road on the northern side since time immemorial.

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Thus, there is serious dispute is raised by the defendants with regard to the very claim made by the

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plaintiffs. When the pleadings of this nature are on record,

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the First Appellate Court has found that the suit for bare injunction without seeking substantial relief as required under law was not maintainable. Rightly so, since the plaintiffs have claimed their right, title and interest over the said space in themselves, which is not only stoutly denied by the defendants but have also claimed their right over the said portion of property, in the light of the law laid down by the Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy¹ , it was incumbent upon the plaintiffs to have sought for the larger relief and the suit for bare injunction, in the facts and circumstances of this matter, was not maintainable. No substantial questions of law would arise for consideration warranting interference with the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court.

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Learned counsel for the appellants/plaintiffs at this juncture submits that a liberty be reserved to the

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1 (2008) 4 SCC 594

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appellants/plaintiffs to seek substantial relief as provided under law.

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The submission is taken on record.

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The appeal is disposed off , with liberty to the

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appellant/plaintiffs to seek substantial relief, if so advised and if permissible under law. It is however made clear that, in the event of appellants/plaintiffs seeking any substantial relief, the same shall be considered on its own merits without being influenced by this order in any manner.

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Sd/(M.G.S. KAMAL) JUDGE

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SMM-Para 01 to 08 VNP-para 09 to till end CT-ASC List No.: 1 Sl No.: 25

Devaraddi S/O Chanrappa Nandeppanavar v. Shivanand S/O Basappa Tarikoppa

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Devaraddi S/O Chanrappa Nandeppanavar v. Shivanand S/O Basappa Tarikoppa

Case brief

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