G Nagesh @ Papanna Vs Girijamma

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DTD 24.1.2013 PASSED IN R.A.NO.114/2008 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, CHIKMAGALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 12.4.2005 PASSED IN OS.NO.90/1999 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.), CHIKMAGALUR.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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NC: 2025:KHC:35152 RSA No. 909 of 2013

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HC-KAR

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ORAL JUDGMENT

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This appeal is against the concurrent finding in a suit for declaration of title and mandatory injunction. Initially, the suit was filed against two defendants, later defendant No.3 is impleaded as party on the premise that defendant No.3 has purchased the property adjacent to the suit property during the pendency of the suit. Thereafter, the plaint is amended by incorporating prayer No.3(a) and 5(a).

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Initially, when the suit was filed, the plaintiff sought declaration that the wall on the Northern side to the plaintiffs' property separating the property of the plaintiffs and defendants No.1 and 2 is the common wall and sought injunction against defendants No.1 and 2 from damaging the said common wall and in addition also sought mandatory injunction to restore the common wall to the original state.

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After impleading defendant No.3, plaintiff contended that defendant No.3 has blocked the passage shown as Schedule-2 in the plaint and alleged that the passage measuring about 3 feet in width and 13 feet in length is encroached by defendant No.3.

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NC: 2025:KHC:35152 RSA No. 909 of 2013

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Defendant No.3 contested the suit and disputed

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the existence of passage. The Trial Court came to the conclusion that the passage is blocked and decreed the suit in part and declared that the Northern wall between the property of the plaintiffs and defendants is a common wall of plaintiffs and defendants and directed defendant No.3 to demolish the wall constructed by defendants No.2 and 3 and to restore the common wall. In addition to that, Trial Court also directed defendant No.3 to remove the passage shown in Schedule-2 property.

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Defendants No.2 and 3 filed two separate appeals namely R.A. No.66/2006 and R.A.No.114/2008 respectively. The appeals are disposed of by a common judgment and consequently both appeals are dismissed.

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Aggrieved by the aforementioned judgments and decrees, defendant No.3 is before this Court in the present Second appeal. The appeal filed by defendant No.2 before this Court in RSA No.1005/2013 is dismissed on 20.01.2017 for non-prosecution.

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NC: 2025:KHC:35152 RSA No. 909 of 2013

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HC-KAR

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This appeal was admitted on 13.02.2020 to

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consider the following substantial questions of law:

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(a) Whether the Courts below committed an error in directing the defendants to evacuate the construction put-up in the passage as alleged by the plaintiff?

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(b) Whether the Courts below failed to consider that upon the plaintiff purchasing suit item No.1, the efficacy of continuing schedule item No.2 and 3 as passage would not arise?

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The Trial Court framed following issues on

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16.08.2000 based on the pleadings.

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(1) Whether the plaintiffs prove that they are the owners in possession of the suit schedule property as on the date of the suit?

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(2) Whether the plaintiffs prove that the plaintiffs property and the defendants property are separated by common wall on the northern side of suit schedule property?

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(3) Whether the plaintiffs proves that the defendants have attempted to meddle with

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NC: 2025:KHC:35152 RSA No. 909 of 2013

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the common wall and damaged the same as alleged?

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(4) Whether the plaintiffs are entitled for the relief of declaration as prayed?

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(5) Whether the plaintiffs are entitled for the relief of permanent injunction restraining the defendants from damaging or destroying the common wall situated on the northern side of the suit schedule property?

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(6) Whether the plaintiffs are entitled for mandatory injunction directing the defendants to restore the common wall to its status - quo - ante?

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(7) Whether the plaintiffs are entitled for damages as prayed?

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(8) What order or decree?

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It is noticed that defendant No.3 has filed written

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statement on 11.09.2003. After defendant No.3 filed written statement, issues are not framed pursuant to the defense raised by defendant No.3 who has disputed the existence of

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the passage. However, it is noticed that the Court has granted mandatory injunction directing defendants No.2 and

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HC-KAR

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3 to demolish the wall and defendant No.3 is directed to remove the construction in the passage in item No.2 of the suit schedule.

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After considering the materials on records, and also considering the fact that the decree for mandatory injunction is granted to remove the alleged obstruction in the passage without framing any issue relating to existence of the passage, this Court is of the view that one more substantial question of law is required to be framed and accordingly is framed as under:

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Whether the Trial Court is justified in granting a decree for mandatory injunction without there being any specific issue relating to alleged closure of passage, moreso, in a situation when defendant No.3 has disputed the existence of the passage as alleged by the plaintiff?

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Learned counsel appearing for defendant No.3/appellant would submit that initially defendant No.3 was not made party, he was impleaded as defendant No.3. Defendant No.3 has filed written statement on 11.07.2003,

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wherein he has disputed the existence of the passage. Issues were framed on 16.08.2000. Since defendant No.3 has disputed the existence of the passage as claimed by the plaintiffs, the Court was required to frame issue relating to the alleged passage and closure of passage in schedule item No.2 property. No such issue is framed. Only based on the entry in property extract marked at Ex.P.86, Court came to a conclusion that the passage is in existence and same is blocked.

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Learned counsel appearing for the appellant would also submit that though the report of the Commissioner would indicate that the passage is blocked, the question is whether the passage is in existence as contended by the plaintiff and there is no issue in this behalf. He would also submit that the Court has proceeded on the assumption that the passage was in existence based on the entry in Ex.P.86. He would submit that the entry in Ex.P.86 is said to be a stray entry and the said document is the record relating the assessment payable to the plaintiff and said assessment extract does not provide for making any

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NC: 2025:KHC:35152 RSA No. 909 of 2013

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such entry relating to existence of a passage. If any such passage is in existence, same has to be entered in the city survey extract and not in the assessment extract.

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It is also further submitted that the decree for

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mandatory injunction granted without framing a specific issue has caused serious prejudice to the case of the appellant. Thus, he would urge that the judgments and decrees passed by the Trial Court and First Appellate Court have to be set-aside.

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Learned counsel for the respondents would defend the impugned judgments and decrees and would submit that the property records clearly mentioned the existence of the passage and the Court Commissioner has submitted the report stating that passage is closed as such, both Courts were justified in granting the decree for mandatory injunction.

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This Court has perused the contention raised by and also perused the impugned judgments and decrees and the records.

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NC: 2025:KHC:35152 RSA No. 909 of 2013

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HC-KAR

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It is evident from the records that defendant No.3/appellant was impleaded after filing of the suit. By the time the defendant No.3/appellant filed written statement on 11.09.2003, the Trial Court had framed issues on 16.08.2000. Subsequent to written statement filed by defendant No.3/appellant who disputed the existence of passage and right to use alleged passage, the issues are not framed. However, Trial Court has granted decree for mandatory injunction directing defendant No.3/appellant to remove the passage.

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This Court is of the view that issue ought to have been framed relating to existence of the passage which is disputed by defendants No.2 and 3. Without framing issues relating to the existence of the passage, Trial Court could not have granted decree for mandatory injunction on the premise that the passage is blocked by defendants No.2 and 3.

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Learned counsel appearing for defendant No.3/ appellant would also submit that he has no grievance

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NC: 2025:KHC:35152 RSA No. 909 of 2013

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relating to the decree granting declaration of title in respect of the common wall. He further submits that he has already restored Northern wall.

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Under these circumstances, the impugned judgments and decrees passed by the Trial Court and First Appellate Court in so far as granting mandatory injunction against defendant No.3 to remove the obstruction on the schedule item No.2 property are set-aside. The matter requires to be remitted to the Trial Court for fresh consideration relating to the alleged passage and construction on the alleged passage.

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Hence, the following:

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ORDER

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(i) The Regular Second Appeal is allowed in

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part.

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(ii) The impugned judgment and decree dated 24.01.2013 in R.A.No.114/2008 on the file of Fast Track Court, Chikkamagalur are set aside.

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NC: 2025:KHC:35152 RSA No. 909 of 2013

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(iii) The impugned judgment and decree dated 12.04.2005 in O.S.No.90/1999 on the file of Additional Civil Judge (Jr.Dn.), Chikkamagalur are set aside.

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