Sri Laxminarayana G S Vs Sri Sudhakara — Karnataka HC (2025) — LawSathi Research

Sri Laxminarayana G S Vs Sri Sudhakara — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the Trial Court erred in declining the relief of restraining the respondents from causing any sort of construction on the northern side of the wall, as alleged in the plaint. +1 more

Court's answer

P.W.1 categorically admitted in cross-examination that there is a common wall belonging to both plaintiff and defendants, each having exclusive right in respect of it, and that the defendants constructed the house in their own property; the plaintiff therefore cannot claim exclusive ownership of the wall, and the relief restraining construction on its northern side was rightly declined by the Trial Court.

Ratio / Principle

Ex.P.1 (certified copy of the partition deed) cannot be accepted as evidence because no foundation was laid for production of the certified copy; even taken merely for discussion, its recital shows the wall between the properties was to be built with both parties contributing equally, as admitted by P.W.1, so it does not establish the plaintiff's exclusive right.

Key takeaways

Both the Trial Court and the First Appellate Court considered the questions of fact and law and reached concurrent findings; there is no ground to admit the appeal or frame a substantial question of law, and it is not a case to invoke Section 100 of CPC.ratio¶53

Detailed headnote1 paragraphs

Property dispute (Sagara, Shivamogga): Regular Second Appeal by the plaintiff against concurrent findings of the Trial Court (O.S.No.247/2016, decree dated 2.10.2021) and the First Appellate Court (R.A.No.02/2022, judgment dated 31.10.2023). The Trial Court had granted relief only in respect of the 'B' schedule property (well, per the 1967 partition deed) and declined to restrain the defendants from constructing on the northern side of the wall. Held (H.P. Sandesh, J.): P.W.1 categorically admitted the wall is a common wall belonging to both parties, so the plaintiff has no exclusive right; Ex.P.1 (certified copy of partition deed) was inadmissible for want of foundation, and even its recital showed the wall was to be built with both sides contributing equally; both courts having considered questions of fact and law, no substantial question of law arises under Section 100 CPC. Second appeal dismissed.

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NC: 2025:KHC:47698 RSA No. 29 of 2024

HC-KAR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19^TH DAY OF NOVEMBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE H.P.SANDESH

REGULAR SECOND APPEAL NO.29 OF 2024 (INJ)

BETWEEN:

SRI. LAXMINARAYANA G.S., S/O SRI. SHIVAJI RAO, AGED ABOUT 77 YEARS, RESIDING AT MARKET ROAD, SAGARA TOWN-577401, SHIVAMOGGA DISTRICT.

…APPELLANT

(BY SRI. SHREERAM T. NAYAK, ADVOCATE)

AND:

Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

SRI. SUDHAKARA, S/O GAJANANA RAO, AGED ABOUT 58 YEARS, OCCUPATION: TAILOR.

SRI. KIRAN, S/O GAJANANA RAO, AGED ABOUT 48 YEARS, OCCUPATION: TAILOR.

SMT. SUDHA BAI, W/O GAJANANA RAO, AGED ABOUT 78 YEARS, OCCUPATION: HOUSE WIFE.

ALL ARE RESIDING AT OPPOSITE VITOBA TEMPLE,

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JINGADE TAILOR SHOP, SAGARA TOWN, SHIVAMOGGA DISTRICT-577401.

…RESPONDENTS

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.10.2023 PASSED IN R.A.NO.02/2022 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 2.10.2021 PASSED IN O.S.NO.247/2016 PASSED ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, SAGAR.

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

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

This matter is listed for admission. Heard the learned counsel for the appellant.

This second appeal is filed by the plaintiff against the concurrent finding. The Trial Court granted the relief in respect of only ‘B’ schedule property is concerned. The relief with regard to restraining the defendants from causing any sort of construction on the northern side of the wall of the plaintiff as alleged, is declined. The same is declined only based on the admission on the part of P.W.1, which has been extracted in paragraph No.16, that the said common wall belongs to the

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plaintiff and the defendants and the same is located in between the properties of the plaintiff and the defendants and a categorical admission was given that the defendants have constructed the house in their property. The Trial Court taken note of the right which was given to the plaintiff in terms of the partition deed of the year 1967 with regard to the well is concerned and hence granted the relief in respect of the well is concerned, which is morefully described as ‘B’ schedule property for drawing of water.

Being aggrieved by the said order of the Trial Court declining to grant the relief, an appeal is filed before the First Appellate Court. The First Appellate Court also having considered the grounds urged in the appeal memo, formulated the point whether the Trial Court has erred by declining the relief of restraining from causing any sort of construction on the northern side of the wall by the respondents as alleged in the plaint. The First Appellate Court having considered both oral and documentary evidence available on record, re-assessed the same in paragraph No.18 and taken note of the plaintiff is relying upon a complaint which is marked as Ex.P.5, which was

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made to the Municipality by the plaintiff that defendant Nos.1 and 2 are trying to repair the wall without obtaining the permission from the Municipality. Only on the basis of the complaint which was made by the plaintiff against defendant No.1 and 2 to the Municipality, the Court cannot come to conclusion that the wall exclusively belongs to the plaintiff, as there are no substantial evidence to support the same. Except mere self-serving affidavit of the plaintiff, there are no oral or documentary evidence available on record to substantiate that the wall has been constructed by the plaintiff and it exclusively belongs to him. The First Appellate Court also taken note of the recital of the document Ex.P.1 in paragraph No.20 and also taken note of the evidence of P.W.1 and D.W.1 and comes to the conclusion that the Trial Court has not committed any error in appreciating both oral and documentary evidence and confirmed the judgment of the Trial Court and dismissed the appeal.

Being aggrieved by the said concurrent finding, the

present second appeal is filed by the appellant/plaintiff contending that the very approach of both the Courts are

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erroneous and committed an error in holding that the certified copy of the partition deed produced at Ex.P.1 is not in accordance with law and committed an error in considering the building construction permission obtained by the plaintiff has not included the disputed wall. Hence, this Court has to admit the appeal and frame substantial question of law.

Having heard the learned counsel for the appellant and also on perusal of the material available on record, particularly the relief claimed in the plaint as well as the evidence available on record, the evidence of P.W.1 and the answer given in the cross-examination, he categorically admits that there is a common wall and the common wall belongs to both of them and both of them are having exclusive right in respect of the common wall is concerned. P.W.1 also categorically admits that the defendants have constructed the house in their property and the same is narrated in paragraph No.16 of the Trial Court judgment and the Trial Court comes to the conclusion that there is no need of much discussion on this aspect and the plaintiff cannot claim that the said wall

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exclusively belongs to him and the same is a common wall and hence declined to grant the relief.

The First Appellate Court also having re-assessed the material available on the record, comes to the conclusion that the Trial Court has not committed any error and particularly taking note of document Ex.P.1 recitals, which is discussed in paragraph No.20 of the judgment of the First Appellate Court. The First Appellate Court also observed that in the present case, no foundation having been laid for the production of certified copy and hence Ex.P.1 cannot be accepted as evidence. Though Ex.P.1 is not having evidentiary value, if it is taken just for the sake of discussion, there is an averment in Ex.P.1 that the party to the partition deed has to build the wall in between the property contributing equally and the same is also admitted by P.W.1 in the cross-examination. When such material is considered by both the Trial Court as well as the First Appellate Court and when the plaintiff is not having any exclusive right in respect of the said common wall, rightly declined to grant the relief and hence, I do not find any ground to admit the appeal and frame any substantial question

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of law. Both the question of fact and question of law are considered by both the Courts and hence not a case to invoke Section 100 of CPC.

In view of the discussions made above, I pass the

following:

ORDER

The second appeal is dismissed.

Sd/(H.P.SANDESH) JUDGE

MD

List No.: 1 Sl No.: 15