This court dismissed a second appeal relating to a dispute over building extensions and party walls. Holding that the appeal was devoid of merits as second appeals are limited to questions of law, the judge found no ground to interfere and dismissed the appeal.
The second appeal is dismissed. No costs.
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HON’BLE SRI JUSTICE K.G.SHANKAR
Second Appeal No.693 of 1997
Date: 01-03-2013
Between:
Bacchu Krishna Murthy (died) Per LRs .. Appellant defendant AND Medam Rama Swamy (died) Per LRs. .. Respondent/ Plaintiff
HON’BLE SRI JUSTICE K.G.SHANKAR Second Appeal No.693 of 1997
JUDGMENT:
This Second Appeal is directed against the judgment and decree of the learned IV Additional District Judge, Kurnool in A.S.No.1 of 1995.
2. The appellant is the defendant. The sole defendant died after filing of the second appeal. His legal representatives were brought on record as appellants 2 and 3. Subsequently, the sole plaintiff also died. His legal representatives were brought on record as respondents 2 to 4 in the appeal.
3. The plaintiff laid the suit against the defendant seeking for a perpetual injunction to restrain the defendant from obstructing the raising of the first floor room by the
plaintiff to increase the accommodation in the first floor. The plaintiff was granted perpetual injunction restraining the defendant from obstructing the plaintiff to increase the height of the first floor room and to extend the accommodation in the first floor on the northern side. However, the plaintiff was directed not to cause damage to party wall (joint wall) in the process of making constructions in the first floor. The decree was confirmed by the appellate Court.
4. The defendant is the western neighbour of the plaintiff. The plaintiff is the owner of premises bearing door No.19/12, Peta, Kurnool. The defendant is the owner of premises bearing door No.19/11-A. Both the houses contain a party wall. The father of the plaintiff constructed one room in the first floor of his premises with low roof. It is the case of the plaintiff that when the plaintiff wanted to raise the roof and to increase accommodation on the northern part of his premises, the defendant obstructed the plaintiff from carrying out the necessary modifications. Hence, the suit by the plaintiff seeking for a perpetual injunction.
5. The defendant contended that the father of the plaintiff and the defendant entered into an agreement in 1970 permitting the father of the plaintiff to construct a single room with a low roof so that the ventilator to the eastern wall of the defendant receives free flow of light
and air. The defendant claims that the plaintiff cannot make any constructions on the joint wall, more so, as the joint wall is old and weak and cannot withstand the pressure of the new construction.
6. The defendant filed O.S.No.149 of 1970 against the father of the plaintiff. Exs.A.2 to A.4 are certified copies of the plaint, written statement and judgment in O.S.No.149 of 1970. O.S.No.149 of 1970 was a suit for perpetual and mandatory injunctions restraining the father of the plaintiff from closing the window in the party wall and to remove the constructions made by the father of the plaintiff in the first floor.
Ex.B.1 in O.S.No.149 of 1970 is an agreement between the father of the plaintiff and the defendant.
On the basis of the said agreement, the trial Court dismissed O.A.No.149 of 1970.
7. Sri S. Lakshminarayana Reddy, learned counsel for the plaintiff contended that during the pendency of the second appeal, the plaintiff completed the construction and that the second appeal consequently has become infructuous. He further contended that there are no grounds to interfere with the concurrent finding of the trial Court and the appellate Court. Sri T.S. Anand, learned counsel for the defendant inter alia contended that the appellate Court did not
re-appreciate the evidence while it is necessary for the
appellate Court to re-appreciate the facts independently. It is settled law that albeit first appeal is a continuation of the trial, the first appellate Court being the last fact finding court shall appreciate the evidence in the case independently.
8. The only ground on which the learned counsel for the defendant contested the appeal is that the appellate Court did not consider the facts independently. I have been taken through the judgment of the appellate Court. I respectfully disagree with the contention of the learned counsel for the defendant/appellant that the appellate Court did not consider and re-appreciate the evidence. The appellate Court appreciated the various niceties of the evidence let in before the trial Court in its judgment, more particularly, in para-15 of the judgment.
9. I am afraid that the scope of the second appeal is very limited as to determine the question of law that is involved in the case. The question of law raised in this case as ground No.14 is that the judgment of the appellate Court is vitiated since it did not consider the case of the plaintiff properly. I am afraid that the appellate Court has dealt with the questions raised by the plaintiff and the defendant primarily in paras 13 to 15 of the judgment of the appellate Court. In that view of the situation, I am afraid that the second appeal cannot be entertained.
10. A controversy has been raised by the plaintiff and the defendant regarding the completion of the construction and the appeal itself becoming infructuous. While it is the contention of the learned counsel for the defendant that the judgment of the trial Court stood suspended during the pendency of the first appeal and the second appeal, it is the contention of the learned counsel for the plaintiff that the alleged constructions were made during the pendency of the first appeal itself. Be that as it may, this is not a case where the plaintiff violated the interim orders and made constructions. Consequently, the question whether the plaintiff made constructions or otherwise on the strength of the decree of the trial Court does not arise for consideration at this stage.
11. For the reasons set out, the second appeal is found to be devoid of merits and is accordingly dismissed. No costs.
Date: 01.03.2013 Isn
_________________ K.G. SHANKAR, J
2 issues framed by the court
Whether the second appeal can be entertained when the trial of facts is complete and limited to questions of law.
Whether the scope of second appeal precludes independent re-appreciation of evidence by the appellate court.
Bacchu Krishna Murthy Per LRs
Medam Rama Swamy Per LRs
K.G. Shankar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
