IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL NO.670 OF 2011 BETWEEN:
SMT NINGAMMA, W/O H R GOVINDEGOWDA, AGED ABOUT 65 YEARS, R/O D.NO.4061, HOSALINE ROAD, HASSAN - 573201, (REPRESENTED BY HER GPA HOLDER, HUSBAND:SRI H R GOVINDEGOWDA. ... APPELLANT (BY SRI K N NITISH, ADVOCATE FOR SRI K V NARASIMHAN, ADVOCATE) AND:
SRI H G KUMARASWAMY, S/O LATE H S GUNDAPPAJI, AGED ABOUT 51 YEARS, R/O K R PURAM, HASSAN – 573201. ... RESPONDENT (BY SRI VISHWANATH R HEGDE, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.10.2010 PASSED IN R.A.NO.104/2005 (OLD R.A.NO.37/2003) ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE AND THE PRESIDING OFFICER, FAST TRACK COURT, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 21.01.2003 PASSED IN O.S.NO.331/1995 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, HASSAN.
THIS REGULAR SECOND APPEAL COMING FOR ADMISSION ON THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matter is listed for admission, with the consent of learned counsel for both the parties, it is taken up for final disposal.
2. The appeal is directed against the judgment and decree passed by the learned Addl. Sessions Judge and Presiding Officer, Fast Track Court at Hassan in R.A.No.104/2005.
3. The first Appellate Court by its judgment and decree dismissed the appeal confirming the judgment and decree passed by the Principal Civil Judge (Jr.Dn.) and JMFC, Hassan in O.S.No.331/1995 dated 21.01.2003.
4. In order to avoid confusion and overlapping, the parties are referred with reference to their rankings as stood before the trial Court.
5. Plaintiff - Smt.Ningamma filed a suit against the defendant for declaration of title and injunction. It came to be dismissed on 21.01.2003.
6. The substance of the case is that plaintiff filed O.S.No.331/1995 on the file of Principal Civil Judge (Jr.Dn.) and JMFC, Hassan seeking declaration of title and injunction.
7. The grouse of the plaintiff is that there was a previous round of litigation. The property originally, was the subject matter of suit in O.S.No.400/1986 and it was for permanent and mandatory injunction and to erect the wall. The suit was partly decreed.
8. It is stated that the total property originally was measuring east to west 60 feet and north to south 55 feet that belonged to Sri H.A.Sanjeevaiah and after the division of properties between the heirs of Sri.H.A.Sanjeevaiah, northern portion measuring east to west 60 feet and north to south measuring 27 ½ feet fell to the share of Sri Gundappaji and the southern equal portion went to the share of Sri Venkataramana.
9. In the course of time, Lakshmamma w/o Appaji, who succeeded to the estate of her husband, sold the immediate southern portion measuring north to east 12 ½ feet and east to west measuring 42 feet.
10. The sale deed that came to be executed in favour of Smt.Ningamma W/o Govindegowda on 07.06.1994, which measured east to west 42 feet and north to south 12 ½ feet consisting of old Mangalore tiles roofed house being bounded on east by Hosaline road, west by bifurcating or bifurcation wall and house of Thimmegowda, north by the house of Kumaraswamy and south by Susheelamma, situated at Hosaline road, Hassan. Registered sale deed dated 20.08.1992 is the source title deed for Ex.P-2 i.e., the sale deed in favour of Smt.Saroja.
11. Thus, the common property of 60’ X 27½ feet was sold under different sale deeds. In the process, the measurement became 42’ X 12 ½’ for the plaintiff- Ningamma and remaining half share was sold to Smt.Susheelamma.
12. The sale deed in favour of Susheelamma does not find place among the documents filed. For convenience it is made clear that originally property belonged to Sri Sanjeevaiah, who is said to be the father of Sri Gundappaji and Sri Venkataramana, in other words, the two sons of Sri Sanjeevaiah shared the property in two divisions measuring 60’ X 27 ½’ feet each.
13. In the due course of time, the share of the property that came to Sri Appaji S/o Venkataramaiah was inherited by the wife of Sri Appaji, who sold the property in two portions of which the present purchaser Ningamma to the extent measuring 42’ X 12 ½’ feet.
14. Ningamma purchased the property measuring 42 feet X 12 ½ feet and Susheelamma purchased 60 feet X 15 feet. Now the bone of contention between the parties is that earlier suit in O.S.No.400/1986 between Sri H.G.Kumaraswamy and Smt.Lakshamma concluded as under:
“The suit of the plaintiff is partly decreed without costs. In the circumstances, both the parties are directed to get erected the new wall by sharing the expenses equally and to put the new wall in the place where it was previously put up. Accordingly, the parties are directed to bear their own expenses of this suit.”
Wherein the parties were directed to build a new wall by sharing the expenses and to put the said new wall in place of previous one. It is exactly in this matter the parties are at logger heads.
15. The plaintiff claims to be the owner of the schedule property measuring 42 X 12 ½ feet, thus the wall that is required for dividing the properties is totally measuring 60’ X55’ feet.
16. The present suit filed for declaration of title over the schedule property, declaration of the decree passed in O.S.No.400/1986 as “vague” and consequential relief of permanent injunction thereby restraining the defendant or Court Commissioner or his men and agents from interfering or obstructing or constructing/erecting any wall or from doing any tortuous acts with the peaceful possession and enjoyment of the suit schedule property.
17. The judgment passed in O.S.No.331/1995 dismissing the claim of the plaintiff was confirmed by the judgment and decree dated 28.10.2010 passed in R.A.No.104/2005.
18. The points of law framed by this Court are:
1. Whether the partition of the properties by means of a common wall into two parts is to be made in accordance with old wall that existed bifurcating the properties which contains uneven measurement when the old partition wall stands demolished?
2. Whether the divider wall has to be erected with reference to the original measurement of the total property or in accordance with the location of the wall that existed earlier?
19. Sri K.N.Nitish, learned counsel for the appellant would submit that the property originally was a mangalore tiles roofed house measuring east to west by 60 feet and north to south by 55 feet, by reckoning the same, the extent of the property purchased by the plaintiff cannot be deprived of. The Court below dismissed the suit by context of judgment and as admitted by the parties, ownership is concerned, it is not in dispute.
20. Sri Vishwanth R.Hegde, learned counsel for respondent would submit that the plaintiff cannot be permitted to take unfair advantage of the situation to get his measurement swelled over and above the original measurement under his ownership and measurement. Further submit that both the judgment and decree of the trial Court and appellate Court are based on sound reasoning and deserve to be confirmed.
21. It is mentioned thrice regarding the title and measurement that was available under the ownership and common possession is 60 X 55 feet in respect of the schedule property.
22. When it was reduced to half as a mark of division between the brothers i.e., Sri Gundappaji and Sri Venkataramana each measured 60’ X 27 ½’.
23. In the course of time, Smt.Lakshmamma, W/o Sri Appaji succeeded to the estate and she sold her portion in two bits 42 X 12 ½ feet under Ex.P-3 in favour of Smt.Saroja and 15 X 60 feet in favour of Smt.Susheelamma.
24. The appellate Court dismissed the appeal thereby confirming the judgment and decree of the trial Court. It is submitted that execution petition No.230/88 is also filed. However, the proceedings did not see conclusion of erection of new divider wall. It is in this connection it is necessary to mention that O.S.No.400/86 decreed in part and wordings mentioned in the operative portion perhaps claimed to be not clear and hence plaintiff contended Judgment and decree passed in that case as vague in the present proceedings. This is not accepted by trial court. It is necessary to mention that both sides are at consensus regarding there is no inhabitable house at present fit for residence.
25. The interpretation of Judgment as at present to be made with reference to the context and without causing prejudice to the rights of property which they have legally acquired. As in this case the question of raising the wall between two portions of southern portion of the total at any cost cannot deprive the rights of ownership and possession of either the plaintiff or the defendant. When a wall is considered as a common wall it is meant for benefit of both the parties and also to mark the conclusion of portion of one party which shall be the end of portion of another party. When the wall is yet to be erected even going by the original decree passed by trial court in O.S.No.400/86 it cannot be forgotten for a while that the measurements mentioned in the schedule thereunder and erecting of a wall cannot be in derogation of the measurement stated in the suit.
26. Learned counsel would submit that description of the properties on the northern side is the property of defendant and common wall.
27. With all observations and mentioning it is not a residential house which is being got up for the first time where a particular portion is divided by a common wall. The art of leading any document which includes a decree or a sale deed or a Judgment is, it should further the meaning and eschew the mischief. It is necessary to make a point in the Judgment in O.S.No.400/86 has not restricted the measurement of the property either of the plaintiff or defendant. In the circumstances no party shall be permitted to enrich himself unjustly at the cost of others that applies to either of the parties. In this connection court also finds that any jerk either towards north or south of the portion of one party would result in friction with his neighboring, thereby giving room for unnecessary chaos. As the wall is going to be erected and not installed so far it shall be on the ground of equality in measurements so that none of the parties are deprived of their legal and legitimate share.
28. The admitted facts and circumstances suggest that the very purpose of the suit is location of proposed wall between the property of plaintiff and defendant who are owners i.e., insofar as plaintiff is concerned measuring 42x12½ and insofar as defendant is concerned it is 15 feet in a way none of the parties shall get unfair advantage by living the other to loss or unjustifiable deprival. Points of law are answered accordingly.
29. The bone of contention between the parties is mainly installation of partition/divider wall which is yet to be erected. The legal answer for the same is that it shall not be erected at unequal location in the guise of existence of earlier wall. Further, it shall be erected exactly at the centre bifurcating the space into two equal portions.
30. Both the courts while disposing of the matter have not clarified the course to be adopted in respect of the bifurcation wall, though suit came to be dismissed by the trial court, thereafter confirmed by the first appellate court. Thus, both the Judgments are incomplete and are not tenable for lack of clarity and clarification is made under this appeal. Judgment and award dated 28.10.2010 passed in R.A.No.104/2005 by first appellate court is set aside.
For the foregoing reasons, appeal is disposed of.
In the result suit is disposed of. The divider/partition wall be erected as the same is admitted to be not done so far.
The parties shall ensure equality and proportionate measurement in the wall that is going to be erected or installed so that none of the parties in respect of the bifurcated portions shall be deprived of their legal and legitimate share over their respective portions.
Sd/- JUDGE BSR/SBN