M Rajashekar Vs the Commissioner

THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.03.2018 PASSED IN R.A.NO.82/2014 ON THE FILE OF THE II ADDL. DISTRICT JUDGE MYSURU DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.08.2013 PASSED IN O.S.NO.1458/2008 ON THE FILE OF THE C/C. V ADDL. I CIVIL JUDGE AND JMFC MYSORE.

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

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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The present regular second appeal is preferred by the plaintiffs assailing the concurrent findings of facts recorded by the Courts below, wherein the suit filed by the plaintiffs seeking the relief of mandatory and permanent injunction came to be dismissed by the judgment and decree dated 06.08.2013 passed in O.S. No.1458/2008 by the V Additional First Civil Judge and JMFC, Mysore (8Trial Court9 for short) and confirmed in R.A. No.82/2014 dated 31.03.2018 on the file of the II Additional District Judge, Mysore (8First Appellate Court9 for short).

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Plaint averments :

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The plaintiffs claimed to be the absolute owners in possession of schedule 8A9 property having inherited the same from their grandfather Basava Wodeyar. Defendant No.3 is the owner of the adjoining 8B9 schedule property situated to the northern side of the plaintiffs9 property. It is stated that defendant No.3 put up construction without sanctioned plan or licence and opened windows on the southern wall facing the plaintiff's property and dumped construction debris in the schedule 8A9 property. Despite the complaints to the Municipal Authorities defendant Nos.1 and 2), no action was taken. Hence, the suit is filed seeking mandatory injunction to close the windows, remove the debris and permanent injunction restraining interference.

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Written statement:

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Defendant Nos.1 and 2 appeared and filed their written statement, inter alia, contending that the suit is not maintainable. The schedule 8A9 property is vacant and

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not fenced and the public are dumping waste. There are no illegal constructions, and the alleged windows are only ventilators fitted with exhausts.

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Defendant No.3 also filed written statement, inter alia, denying the plaintiffs9 title and possession of schedule 8A9 property and asserted ownership of 8B9 schedule property under the registered sale deed and contended that no new construction is put up by her in the 8B9 schedule property. The building is old and that no debris as contended by the plaintiffs is dumped by her. It is contended that the windows existed long prior and are for air and light.

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The Trial Court, based on the pleadings, framed necessary issues. In order to substantiate their claim the plaintiff examined himself as PW.1 and marked documents that Exs.P1 to P18. On behalf of defendants, K. Basvaraju was examined, who is the General Power of Attorney

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holder of defendant No.3 and marked documents Exs.D1 to D17.

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The Trial Court, based on the pleadings, oral and documentary evidence, held that the plaintiffs have failed to prove ownership and possession over the schedule 8A9 property. The title itself was under dispute in a separate proceedings and that there is no evidence to establish that defendant No.3 carried out construction or that she dumped debris in the plaintiff's property. The Trial Court further observed that the window existed long prior and no legal injury was established and held that the plaintiffs are not entitled to mandatory or permanent injunction and dismissed the suit with costs.

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In the appeal preferred by the plaintiffs before

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the First Appellate Court, the First Appellate Court being the last-fact finding Court observed that the existence of window is not disputed, hence, no issue required consideration. It further held that there is no material to

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show any violation of plaintiffs9 right and rejected the application for appointment of a Commissioner as unnecessary and also observed that the property is a vacant and no question of privacy violation arises. It concluded that the appeal is devoid of merits and even frivolous, dismissed with costs, confirming the judgment and decree of the Trial Court.

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Learned counsel for the appellants submits that the Courts below have erred in not properly appreciating the documentary evidence, including mortgage deed, katha extract, and tax paid receipts, which establish plaintiffs9 title. It is contended that the issues framed by

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the Trial Court are improper, particularly regarding interference and title and the Courts below failed to consider that defendant No.3 has illegally put up windows and photographic evidence establishes construction and interference.

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Learned counsel would contend that the First

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Appellate Court being the last-fact finding Court has committed an error in not framing proper points for consideration and has dismissed the appeal mechanically, and that the findings in appeal are frivolous, vexatious and unsustainable, that the imposition of costs is unjustified. Both the Courts recorded finding contrary to the evidence on record, therefore, giving rise to a substantial question of law to be framed by this Court.

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At the outset, it is to be noted that the present regular second appeal is against the concurrent findings of facts recorded by the Courts below, wherein the interference is permissible only when the case involves a substantial question of law and the Court would interfere under Section 100 CPC only when the findings are shown to be perverse, illegal or based on no evidence. Bearing in mind the settled of proposition of law, the judgment and decree of the Courts below, along with the material on record have been perused.

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The entire case of the plaintiffs is founded on an ownership over schedule 8A9 property. The plaintiffs relied upon Ex.P17-Mortgage Deed and Ex.P18-Katha extract along with the tax related documents Exs.P1 to P9 and P16. A careful appreciation, would disclose that the Trial Court observed that Katha Extract (Ex.P18) stands in the name of one Basava Wodeyar and not in the name of plaintiffs and that no material has been placed on record to establish the relationship between the plaintiffs and Basava Wodeyar so as to prove succession.

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The mortgage deed (Ex.P17) does not confer title. At the best, it is only a collateral document. Further, the Trial Court observed in the evidence of PW.1 that the title to the very same property is under dispute in separate proceedings and which clearly creates a doubt over the plaintiffs9 title. Both the Courts held that the plaintiffs have failed to prove lawful ownership and possession which is a sine qua non for seeking injunction.

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The Apex Court in the case of Anathula Sudhakar vs P. Buchi Reddy (dead) by L.Rs and Others¹ (Anathula) has held at paragraph No.17 as under:

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<17. There is some confusion as to in what circumstances the question of title will be directly and substantially in issue, and in what circumstances the question of title will be collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari AIR 1965 Mad. 355, the Madras High Court considered an appeal arising from a suit for possession and injunction. The defendant contended that the plaintiff had filed an earlier suit for injunction which was dismissed, and therefore the plaintiff was precluded from agitating the issue of title in the subsequent suit, being barred by the principle of res judicata. It was held that the earlier suit was only for an injunction (to protect the standing crop on the land) and the averments in the plaint did not give rise to any question necessitating denial of plaintiff's title by the defendant; and as the earlier suit was concerned only with a possessory

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1 (2008) 4 SCC 594

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right and not title, the subsequent suit was not barred. There are several decisions taking a similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally, and therefore a subsequent suit for declaration of title would not be barred.=

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Even assuming title, the plaintiffs were required to establish lawful possession over schedule 8A9 property. The admitted position on record is that schedule 8A9 property is a vacant site. The photographs produced at Exs.P13 to 15 only show the property as lying vacant and unattended, with some debris present. There is no cogent evidence to show actual possession or enjoyment by the plaintiffs. Thus, the finding that the plaintiffs are not in established possession is a pure finding of fact based on evidence, which does not call for interference.

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The allegation of the plaintiffs is that defendant No.3 has dumped construction materials in schedule 8A9 property. The photographs Exs.P13 to 15 indicate the presence of debris. However, there is absolutely no

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evidence that the said debris were linking to defendant No.3. On the contrary, the defence of defendant Nos.1 and 2 that the property is open and waste is dumped by public at large has not been rebutted by the plaintiffs. Thus, the mere presence of debris is insufficient in the absence of proof of the source, which is rightly considered by the Courts below.

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The plaintiffs sought a mandatory injunction to close the windows on the southern wall of the 8B9 schedule property. The evidence on record shows that the building in 8B9 schedule property is an old structure and the windows and ventilator have been in existence for a long period. More importantly, the plaintiffs have not pleaded or proved how the said windows would infringe any personal right of the plaintiffs. Schedule 8A9 property is being a vacant land, the question of invasion of privacy or actionable injury does not arise. No expert evidence, commissioner's report or any independent material is produced to show encroachment or violation of the

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easement right. Therefore, the Courts below have rightly

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held that no cause of action arises from mandatory injunction.

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The Trial Court as well as the First Appellate Court, upon a detailed appreciation of the oral and documentary evidence, have recorded concurrent findings that the title has not been proved, possession has not been established and allegation of interference is also not established. The findings recorded do not suffer from any perversity nor are they contrary to the evidence. No substantial question of law arises for consideration in the present appeal. The manner in which the Trial Court and the First Appellate Court have considered the entire oral and documentary evidence, the same does not warrant any interference under Section 100 CPC. Accordingly, this Court pass the following:

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ORDER

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