IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST 2019 BEFORE THE HON'BLE Mr. JUSTICE B.VEERAPPA REGULAR SECOND APPEAL No.1107/2011 (DEC) BETWEEN:
1. Smt. Saroja K.A. Rao, W/o. Late K. Appaji Rao, Aged about 80 years.
2. Sri. K.A. Somashekar Rao, S/o. Late K. Appaji Rao, Aged abouat 61 years.
3. Sri. K.A. Nagaraja, S/o. Late K. Appaji Rao, Aged about 59 years.
4. Sri. K.A. Vedanarayana Rao, S/o. Late K. Appaji Rao, Aged about 49 years.
Appellant Nos.1 to 4 Residing at near Radhakrishna Mandir in Puttur Kasba Village, Puttur Taluk, D.K. – 574 201.
5. Smt. Vijayalaxmi J Rao, D/o. Late K. Appaji Rao & W/o. Jayantha M Rao, Aged about 56 years, Residing at Maya Kiran, 2nd Cross, Mangala Nagar, Near Mangaladevi Temple, Mangalore, D.K. District – 575 001.
... Appellants (By Sri. H. Jayakara Shetty, Advocate) AND:
1. Smt. K. Sarojini Devi, W/o K. Nanoji Rao, Aged about 72 years, Presently residing at G-1, Ashraya Apartment, Nagarabhavi Road, Marappa Garden Layout, Bengaluru – 72.
2. Sri. K. Sathisha V Rao, Natural Son of K. Nanoji Rao And adopted son of Vasoji Rao, Aged about 52 years, Presently residing at G-1 Ashraya Apartments Nagarbhavi Road, Marappa Garden Layout, Bengaluru – 72.
3. Sri. Shivappa M, S/o. Krishna Naika, Aged about 61 years, Residing at near Radhakrishna Mandir, Puttur Kasba Village, Puttur Taluk & Post, D.K. District – 574 201.
4. Smt. Gulabi M W/o. Shivappa M, Aged about 54 years, Residing at near Radhakrishna Mandir, Puttur Kasba Village, Puttur Taluk & Post, D.K. District – 574 201.
... Respondents (By Sri. K. Chandranath Ariga, Advocate for R3 & R4; R1 and R2 are served but unrepresented) **** This Regular Second Appeal is filed under Section 100 of CPC against the judgment and decree dated 13.01.2011 passed in R.A. No.18/92 on the file of the Principal Senior Civil Judge, Puttur, D.K. dismissing the appeal and confirming the judgment and decree dated 20.02.1992 passed in O.S. No.113/1986 on the file of the Principal Munsiff, Puttur, D.K.
This Regular Second Appeal coming on for admission, this day, the Court delivered the following:-
J U D G M E N T This is the defendants’ appeal against the judgment and decree dated 13.01.2011 made in R.A. No.18/92 on the file of Principal Senior Civil Judge at Puttur, Dakshina Kannada dismissing the appeal filed by the appellants, thereby confirming the judgment and decree dated 20.02.1992 made in O.S.
No.113/1986 passed by the Court of Principal Munsiff at Puttur, Dakshina Kannada.
2. The present respondents, who are the plaintiffs before the trial Court have filed suit in O.S. No.113/86 for relief of declaration, mandatory injunction and damages mainly contending that the plaintiffs are the absolute owners of the properties bearing Survey No.69/9 and 71/13B of Puttur Kasba Village having purchased the same from one K. Venugopal Rao as per the sale deed dated 02.07.1981. Since from the date of purchase, the plaintiffs are in enjoyment of the suit schedule properties. The suit schedule properties consists of an old tiled building having upstairs. Apart from the house building, there is an out-house situated on the southern side of the building and in a portion of the out-house there is lavatory and on the western side of this house building, there is a bath shed. The residential house of the plaintiffs consists of three tenements from a long time. ‘A’ schedule properties slopes from south to north. There is a rain water channel situated in the southern portion of the land of the plaintiffs, which flows originally from east to west in the southern side and turns towards north and flows in the western boundary of the land of the plaintiffs from south to north. Further, flows towards the north-west in the western side of the land of the defendants and reaches the thodu situated in the north. In the western portion of the house building, there are three bath rooms and also washing places. The water from the bath room is discharged through an old cement channel which is situated in the western side of the house building of the plaintiffs. These channels have been in existence from several decades. These two channels are the only channels through which both rain water and the sullage water are to be discharged. The plaintiffs have got natural right to discharge the rain water and the sullage water from their lands to the lands of the defendants, which is at lower level.
3. It is the further case of the plaintiffs that they have purchased the property in the year 1982 from Venugopala Rao. There is a gate in the north east corner of the compound wall of the plaintiffs. The same gate is situated in the land purchased by the plaintiffs. The defendants had a right of way only to pass through the said gate to reach the land purchased by him. The said gate had no shutters and the same was closed by fence. The defendants in the month of May 1986, have erected two pillars near the gate and fixed an iron gate across the two pillars in spite of the objections raised by the plaintiffs. Plaintiffs got fixed the iron shutters to the old pillars and got removed the fence only with a view to open and close the gate whenever required. The defendant and his son without any reason have dismantled the northern shutter of the said gate and they have also demolished the northern pillar on 09.12.1986. The defendant and his son have dug a portion of sullage water cement channel and blocked the same by dumping the dismantled portion of the drainage channel. Therefore, suit came to be filed for the relief sought for.
4. The defendants have filed a written statement denying the averments made in the plaint and contended that the suit filed by the plaintiffs for relief sought for is not maintainable and contended that A schedule properties are not only slope from south to north, but also sloping west to east. The main contention of the defendants is that they have negotiated for the purchase of the premises on behalf of the plaintiffs. At the time of purchase, it was agreed and understood between plaintiffs and defendants that the entire rain water of the plaintiffs plot along with waste and sullage water are to be regulated by constructing a channel from west to east on the northern side of the plaintiffs plot and then let it down on the rain water channel situated on the eastern side of the defendants’ property which ultimately reaches a drainage channel situated on the north-eastern side of the defendants’ plot. The defendants had denied the claim of the plaintiffs that two channels are absolutely necessary and they are in existence since several decades.
5. The defendants have further contended that the plaintiffs cannot burden the defendants’ land with waste and sullage water, which will not only cause the health hazard, but also cause environmental and social problems. The defendants have contended that they have erected a gate in their own land. One of the old pillar that is the northern pillar actually falls in their land and it belongs to them. The dividing boundary between the plaintiff’s plot and his plot passes in between the two old pillars. It is further contended that he had put up two pillars in his own land. The northern pillars belong to him only. The defendants have further contended that putting a gate to the old pillars will interfere the right of free passage as reserved in the sale deed. The defendants have specifically denied all other allegations made in the plaint and sought for dismissal of the suit.
6. On the basis of the aforesaid pleadings, the trial Court has framed the following issues:
“1. Whether the plaintiffs have a natural right to discharge rain water and sullage water from A schedule properties to the land of defendant through channels marked as A and B in the plaint sketch?
2. Whether the plaintiffs prove that the defendant erected two pillars near the gate in S. No.71/13B of A schedule and fixed an iron gate to them illegally as alleged?
3. Whether the plaintiffs prove that the defendant blocked the B channel?
4. Whether the plaintiffs prove that the defendant along with his son dismantled the northern shutter of the iron gate and demolished a portion of the old northern pillar on 09.12.1986?
5. Whether the defendant proves that the agreement between the parties to construct a channel from west to east on the northern side of plaintiffs plot to discharge rain and drain water as alleged?
6. Whether the plaintiffs are entitled to the declaration and mandatory injunctions and damages sought for?
6A. Whether the plaintiffs are entitled for damages, if so, what amount.
7. To what decree or order?”
7. In order to prove the case of the plaintiffs, PWs. 1 to 4 have been examined and Exs.P1 to P23 are got marked. On the other hand, the defendant has been examined as DW1 and no document is marked on behalf of the defendant.
8. The trial Court considering both the oral and documentary evidence on record, has recorded the findings that the plaintiffs have proved that they have a natural right to discharge rain water and sullage water from ‘A’ schedule properties to the land of defendants through channels marked as ‘A’ and ‘B’ in the plaint sketch and further proved that the defendants have erected two pillars near the gate in Survey No.71/13B of ‘A’ schedule and fixed an iron gate illegally as alleged. Further, it is held that the plaintiffs have proved that the defendants have blocked the B channel and further held that the plaintiffs have proved that the defendant along with his son dismantled the northern shutter of the iron gate and demolished a portion of the old northern pillar on 09.12.1986. The trial Court further held that the defendants have failed to prove that there is an agreement between the parties to construct a channel from west to east on the northern side of plaintiffs plot to discharge rain and drain water as alleged and the plaintiffs are entitled to the declaration and mandatory injunction as well as damages. Accordingly, the trial Court by its judgment and decree dated 20.02.1992, has decreed the suit and granted mandatory injunction as sought for.
9. Aggrieved by the said judgment and decree, the defendants have filed R.A. No.18/1992 before the Principal Senior Civil Judge, Puttur, who after framing the points for determination as contemplated under Order 41 Rule 31 of the Code of Civil Procedure, has recorded a finding that the trial Court has not committed any error in holding Issues Nos.1 and 7 in the affirmative and the trial Court has framed proper and specific issues in respect of description and identify of the plaint ‘A’ schedule property and the Judgment & Decree of the trial Court does not call for any interference. Accordingly by the impugned Judgment & Decree dated 13.1.2011 dismissed the appeal.
10. Being aggrieved by the concurrent findings of facts recorded by the Courts below, it did not deter the appellants from preferring the present Regular Second Appeal as a last ditch attempt.
11. I have heard the learned counsel for the parties to the lis.
12. Sri M. Jayakara Shetty, learned counsel for the appellants – defendants vehemently contended that the impugned Judgments & Decrees passed by the Courts below are contrary to the material on record and are liable to be set aside. He would further contend that there should have been specific issues with regard to correct description and identity of the plaint ‘A’ schedule properties and Courts below ought to have given specific finding on this issue as there was dispute with regard to the description and identity of the suit schedule properties and both the Courts below have failed to appreciate this aspect of the matter.
13. He would further contend that both the Courts below have not properly looked into and considered the Commissioner’s report and the sketches and have erred in holding that the compound wall put up by the respondents/plaintiffs also suggests that the respondents have ascertained the right only to that portion and in fact the northern pillar of old gate and the new pillars put up by the appellants clearly falls outside the said compound wall and they fell in the land of the appellants only and the Courts below have erred in relying on Ex.P15 – photo copy, which is not admissible in evidence since the same is not proved by the plaintiffs.
14. He would further contend that the Courts below failed to appreciate that since the lands purchased by the appellants and respondents are different lands, the existence of the northern gate in the land of appellants has not been mentioned in the sale deed of respondents. The Courts below failed to appreciate the fact that there is no mention of gate in Ex.P1 and therefore, inference that the gate is situated in respondents – plaintiffs’ land makes no meaning. He would further contend that the both the Courts below erred in holding that if the correct measurements are taken, the two pillars put by the appellants – defendants fall within Sy.No.71/13B, is without any basis. The findings recorded by the Courts below are contrary to the Commissioner’s report and contrary to the oral and documentary evidence on record. Therefore, he sought to allow this Regular Second Appeal.
15. Per contra, Sri K. Chandrakanth Ariga, learned counsel for the respondent Nos.3 and 4 sought to justify the impugned Judgments and Decrees passed by the Courts below and contended that as per the material documents produced including the recitals of Ex.P1, it clearly indicates that the old gate is in the plot of the plaintiffs. If the entire gate is not in the plot of the plaintiffs, there would not have been such recital reserving right of the defendants or his predecessors-in-title to pass through that gate. He would further contend that the defendant has admitted in his evidence that he blocked ‘C’ channel. He would further contend that on the basis of measurements of the property of the defendants based on the oral and documentary evidence, both the Courts rightly come to the conclusion that new pillars erected are within the property belonging to the plaintiffs. Therefore, he sought to dismiss the Regular Second Appeal.
16. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records carefully.
17. It is the specific case of the plaintiffs that the plaintiffs have a natural right to discharge rain water and sullage water from ‘A’ schedule properties to the land of defendant through channels marked as ‘A’ and ‘B’ in the plaint sketch. It is further case of the plaintiffs that the defendants erected two pillars near the gate in Sy.No.71/13B of ‘A’ schedule and fixed an iron gate to them illegally as alleged. It is the specific case of the plaintiffs that the defendant blocked the ‘B’ channel and the defendant along with his son dismantled the northern shutter of the iron gate and demolished a portion of the old northern pillar on 9.12.1986. It is the case of the defendant that there was an agreement between the parties to construct a channel from west to east on the northern side of plaintiffs plot to discharge rain and drain water as agreed between the parties.
18. The trial Court considering the material on record has recorded a finding that the Commissioner was appointed to make local investigation of the suit properties and to report the facts. The Commissioner has submitted his report, further report along with the plans. The Commissioner has observed in his report the existence of two pillars near the gate. The defendant has also admitted in his evidence that he has erected a new gate near the old gate. The erection of the new gate is also clear from the photo produced and marked at Ex.P15. Whether the erection of new pillars are within the S.No.71/13B and they are erected illegally is the crucial point to be considered in this matter.
19. Based on the material evidence on record, the trial Court recorded a finding that it is admitted by the defendants that there is only one gate to reach their plot. Even a suggestion is made to PW.1 that there is only one gate to reach the defendants’ plot. The suggestions made to PW.1 go to show that there is only one gate to reach the defendants’ plot. The suggestions made to PW.1 go to show that there is only gate to reach the plot of the defendants at the time of Ex.P1. The defendants have not stated in his written statement as to the wicket gate and the reservation of right of way in that wicket gate. Therefore, the evidence of defendant on this aspect is not relevant and considerable. The Commissioner has also observed in his report that there is only one gate to reach the house of the plaintiffs as well as to reach the house of the defendants. The wicket gate must have been opened because the old gate was closed with fence. If the northern pillar of the old gate is in the land of the defendants, absolutely there was no hurdle for the defendants either to mention the same in the sale deed executed by the vendor in favour of the plaintiffs or in the sale deed. But such recital does not find place in both the sale deeds. If the northern pillar of the old gate is in the plot of the defendants, definitely there must be a recital in the sale deed. The only recital as to the user of the gate in Ex.P1 clearly indicates that the old gate is in the plot of the plaintiffs. If the entire gate is not in the plot of the plaintiffs, there would not have been such recital reserving the right of the defendant or his predecessor-in-title to pass through that gate. Therefore, the evidence on record and the circumstances of the case show that the old gate is in S.No.71/13B and it is a common gate for both plaintiffs and defendants. Just near 1 ½ feet away from the old gate, the defendants have erected two pillars. If the correct measurements are taken into account, these two pillars will definitely fall within S.No.71/13B. When there is a passage expressly reserved in Ex.P1 for the defendants, there is absolutely no need to erect new pillars and gate. The new pillars erected by the defendants are just 1 ½’ away from the old gate. They are not supported on either side by any wall. These two pillars are absolutely no necessity for the defendants. These two pillars will not serve any fruitful purpose. If the correct measurement of the suit ‘A’ schedule properties and the properties of the defendants are taken into consideration, definitely the new pillars erected must fall within the properties of the plaintiffs. The trial Court has also recorded a finding that the defendant himself has admitted the blockage of ‘C’ channel, in his evidence.
20. The Lower Appellate Court on re- appreciation of the entire material on record has framed the following points for determination:
1. Whether the trial Court went wrong in holding issue Nos.1 and 7 in the affirmative ?
2. Whether the trial Court has not framed proper and specific issues in respect of description and identity of the plaint A schedule property ?
3. Whether the judgment and the decree of the trial Court is illegal, perverse, capricious and calls for interference ?
4. What order or what decree ?
21. The Lower Appellate Court has recorded a finding that the trial Court has not committed any error in holding Issue Nos.1 and 7 in the affirmative and the appellants have not proved that the trial Court has not framed proper and specific issues in respect of description and identity of the plaint ‘A’ schedule property and the appellants have not proved that the judgment and Decree of the trial Court is perverse and calls for interference.
22. The Lower Appellate Court further recorded a finding that the evidence of PWs.1 to 4 clearly discloses that both the channels were existed to discharge sullage water. The defendant has also admitted about the existence of the above two channels. The only contention of the defendant is that the defendant has neglected for the purchase of ‘A’ schedule properties in favour of the plaintiffs. There was an agreement and understanding between the plaintiffs and himself that the entire rain water and the waste and sullage water are to regulated by constructing a channel from west to east on the northern side of the plaintiffs’ plot and then it led down only to rain water channel situated on the eastern side of the defendants’ property which ultimately reaches the drainage channel situated on the north eastern side of the defendants’ plot. At the time of execution of Ex.P1, DW.1 has taken interest in execution of Ex.P1 and DW-1 has also admitted in the evidence that he was aware of the contents of Ex.P1. In Ex.P1, there are recitals as to the use of the well water and regarding mamool way. The defendant has not made any attempt at the time of the execution of Ex.P1 about the agreement/oral understanding entered into with the plaintiff’s though he was aware of the specific recitals made in Ex.P1 in respect of use of water and mamool dari. The claim of the plaintiffs is that the channels were in existence since from several years. In support of their case, they have produced the property extracts relating to ‘A’ schedule properties. Assessment extract are marked at Ex.P8 and P7 and they disclose that there were three tenements in the suit schedule properties and they were let out to three different tenements since from 1964-65 till 1987-88. This fact is also admitted by DW.1. DW.1 has also admitted that there were bath sheds behind the plaintiffs building at the time of purchase of the properties by the plaintiffs. DW.1 has also clearly stated that when he came to the suit properties for his residence there were three houses behind the house of plaintiffs and there were three bath sheds attached to those three houses. He has expressed his inability as to when these houses and bath sheds were constructed.
23. It is not the case of the defendants that rain water channel and the sullage water channel were recently formed. But on the other hand, the defendant has contended in his written statement that it is only since 10 years, the above channels and three bath rooms were existed. It is only since three years after making some alterations and additions to the main house by the earlier owner, they were let out to the tenants. If the contention of the defendants is presumed to be true, then the alteration and additions were done by the earlier owner i.e., in the year 1976 only. Therefore, the contention of the defendant is falsified by the defendant himself in his own evidence. It is elicited from DW-1 that C channel was in existence prior to 1979 when he came to the suit schedule properties. DW.1 in his evidence has not asked his vendor to close C channel at the time of his sale deed. Even the defendant has not asked his owner for the closure of C channel since from 1979. The defendant has clearly admitted in his evidence that the rain water of the plaintiff’s properties and the bath room water of the plaintiffs has to pass through his land and there is no other alternative to discharge the rain water and sullage water. This clearly goes to show that the plaintiffs have to discharge the rain water and sullage water through the channels marked at ‘C’ and ‘R’ in the Commissioner’s report.
24. The Lower Appellate Court further recorded a finding that the defendants have never objected for the free flow of water through ‘C’ and ‘R’ channels since from the date of his purchase till the date of the filing of the suit and the defendants have not made any efforts to deviate the flow of water from ‘R’ and ‘C’ channels. If the defendants were really intended to deviate the water of the plaintiff through some other direction, the defendants could have definitely asked the vendor of the plaintiffs to make a recital in Ex.P1.
25. The Lower Appellate Court has further recorded a finding that in so far as in respect of erection of two pillars which is erected by the defendants falls within the Sy.No.71/13B, the trial Court has clearly observed that the plan prepared by the Surveyor is not correct and it is not in accordance with the measurements. The trial Court after considering the measurements on the eastern side of the survey line it is held that in Ex.C6 survey line 147 is shorter than survey line 24. The length of survey line 147 must be more than the length of survey line 124. But the surveyor has not shown these survey lines correctly. If the survey line 147 is correctly measured and mentioned in Ex.C6 the length of it would be more than survey line 124. Therefore, the trial Court has held that the surveyor’s sketch is not worthy of credit to decide as to whether the two pillars erected by the defendants fall within the survey number 71/13B.
26. The Lower Appellate Court has further recorded a finding that the appellants’ counsel has argued that when there is a declaratory relief regarding the plaintiffs’ claim that the pillars fall in Sy.No.71/13B, mandatory relief cannot be granted. In the present case, the defendant himself has admitted that the above two pillars were erected recently. Further, the plaintiffs have also proved the ownership over the Sy.No.71/13B. Therefore, the declaratory relief is not at all necessary. The mandatory relief granted by the trial Court is just and proper and no ground is made out by the appellants to interfere with the judgment and decree passed by the trial Court and accordingly dismissed the appeal.
27. Both the Courts below based on the oral and documentary evidence recorded a categorical finding that the plaintiffs have proved that they have a natural right to discharge rain water and sullage water from ‘A’ schedule properties to the land of defendants through channels marked as ‘A’ and ‘B’ in the plaint sketch. The plaintiffs also proved that the defendants erected two pillars near the gate in S.No.71/13B of ‘A’ schedule property and fixed an iron gate to them illegally. The plaintiffs also proved that the defendants have blocked the ‘B’ channel and dismantled the northern shutter of the iron gate and demolished a portion of the old northern pillar on 9.12.1986. The defendants failed to prove the agreement between the parties to construct a channel from west to east on the northern side of plaintiffs plot to discharge rain and drain water as alleged.
28. In the Commissioner’s report, the Commissioner has clearly stated that as per the Surveyor measurement, the new gate is within the defendants’ property. There is no material as to on what basis Surveyor made measurement and it is not the case of the defendants that the Court Commissioner has inspected the spot and surveyed both the properties of the plaintiffs and the defendants with reference to the respective sale deeds. He simply relied upon the report of the Surveyor and as rightly held by both the Courts below, there was no proper survey by the Surveyor. If that is so, the very Commissioner’s report based on the said survey is also not correct as rightly held by the Courts below. Both the Courts below concurrently held that the plaintiffs have proved that the defendants erected two pillars near the gate in Sy.No.71/13B of the ‘A’ schedule property and fixed iron gate illegally as alleged by the plaintiffs. Such findings of fact recorded by the Courts below based on the oral and documentary evidence cannot be interfered by this Court, in exercise of the powers under the provisions of Section 100 of the Code of Civil Procedure. The appellants - defendants have not made out any substantial question of law to admit this Regular Second Appeal and interfere with the concurrent findings of facts recorded by the Courts below.
29. Accordingly, this Regular Second Appeal is dismissed at the stage of admission.
However, it is made clear that merely because both the Courts below recorded a finding that the defendants have erected two pillars near the gate in Sy.No.71/13B of the ‘A’ schedule property, it does not mean that the plaintiffs can claim any right in the property bearing Sy.No.71/3B, 3A, 1A, 6A belonging to the defendants as per the sale deed dated 28.1.1982.
Ordered accordingly.
Sd/- JUDGE Vbs/gss