IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1156/2012 (P-INJ) BETWEEN:
T.L.VISHWANATH RAO S/O LACHIRAMAPPA, AGED ABOUT 67 YEARS, R/A LEFT CROSS, HOSAMANE, OLD TOWN, BHADRAVATHI-577 301.
... APPELLANT (BY SRI S.N.BHAT, ADVOCATE) AND:
D.L.VINAY S/O D.H.LAKSHMIPATHY RAO, AGED ABOUT 38 YEARS, R/A VENKATESH MEDICAL HALL, B.H.ROAD, BHADRAVATHI-577 301.
[BY SRI B.R.PRASANNA, ADV., FOR ... RESPONDENT M/S RAM BHAT & SREEPADA ASSTS., ADVS.,] THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.04.2012 PASSED IN R.A.NO.202/2011 ON THE FILE OF THE PRESIDING OFFICER FAST TRACK COURT, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.06.2011 PASSED IN O.S.NO.172/2006 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., AT BHADRAVATHI.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant assailing the judgment and decree dated 01.06.2011 passed by the Addl. Senior Civil Judge and JMFC., Bhadravathi, (hereinafter referred to as the “trial Court”) in O.S.No.172/2006 and the same was confirmed by the Presiding Officer, Fast Track Court, Bhadravathi, (hereinafter referred to as the “1st Appellate Court”) in RA.No.202/2011 dated 19.04.2012.
2. Heard the arguments of learned counsel for the appellant and the learned counsel for the respondent.
3. The status of the parties before the trial Court is retained for the sake of convenience.
4. The case of the plaintiff before the trial Court in brief is that the plaintiff has filed a suit for permanent injunction restraining the defendant from interfering with the suit schedule property alleging that he is the owner of structure property bearing Khata No.245/279 situated in 3rd Ward, Halappa Circle, Bhadravathi, measuring 7.7 x 38 feet out of total 15 x 30 feet area. The property of 1st defendant is situated on the northern side of the plaintiff’s property. There is a pillar with length of 100 feet and 7 feet width. On the northern side the plaintiff’s property, the said pillar gives support to the plaintiff’s property which includes the staircase leading to first floor. Defendant Nos.1 and 2 in collusion have demolished the northern portion of 1st defendant’s property with an intention to construct a new building. They have demolished old existing pillar that caused severe damages to the properties of the plaintiff wall, building and terrace. A complaint was also lodged to the Old Town Police on 07.07.2006. 1st defendant has given undertaking that he will carry out the necessary repairs and construct new pillar in the damaged portion, but he did not keep up his promise. A legal notice was also issued to the defendant, but he failed to answer the same. Hence, the suit is filed for direction to the defendants to pay damages of Rs.50,000/- or to get the property repaired along with permanent injunction.
5. Pursuant to the notice issued by the trial Court, defendant No.1 appeared through their advocate and filed the written statement by denying the averments made in the plaint as false and contended that one D.L.Rama Rao who is the elder brother of the plaintiff lodged a complaint stating that damage was caused to the pillar. On 08.07.2006 the defendant was asked to sign on the blank paper in police station. It is not a public document and no undertaking is given. The said document is fabricated one and no case is made out against the defendant for payment of damages or for granting any relief. Hence, prayed for dismissal of the suit.
6. Based on the rival pleadings, the trial Court framed the following issues, which reads as under:
1. Whether the plaintiff proves that on 5.7.06 defendants in furtherance of their common intention have demolished common wall existing on the northern side of the suit property?
2. If so, whether plaintiff proves that he has sustained loss of damages of Rs.50,000/-?
3. Whether plaintiff is entitled for the reliefs prayed for?
4. What decree or order?
7. In order to substantiate the contentions of the plaintiff, plaintiff himself examined as P.W.1 and two more witnesses were examined as P.Ws.2 and 3 and got marked 18 documents as Exs.P1 to P18 and on behalf of the defendants, 1st defendant himself examined as D.W.1 and examined one more witness as D.W.2 and got marked 8 documents as per Exs.D1 to D8. The trial Court has appointed the Court Commissioner namely Smt. Mamatha Mohan who was examined as C.W.1 and 5 documents marked as Exs.C1 to C5.
8. After considering the evidence, the trial Court, answered issue No.1 in affirmative and issue Nos.2 and 3 partly in affirmative and ultimately decreed the suit and restrained the defendants from interfering with peaceful possession and enjoyment of the property and also directed to pay damages of Rs.18,000/- to the plaintiff. Assailing the judgment and decree passed by the trial Court, the defendant filed an appeal before the 1st Appellate Court in R.A.No.202/2011.
9. The 1st Appellate Court after hearing the arguments, considered two points which are as under:
1. Whether the finding of the trial Court that there exists disputed pillar giving support to the plaintiff’s property and the same was damaged by the defendant is not in accordance with evidence on record?
2. Whether impugned judgment under appeal is erroneous, illegal, perverse and against the material on record and there is a need for interference by this Court?
3. What Order?
10. After hearing the arguments of the parties, the 1st Appellate Court dismissed the appeal by confirming the judgment and decree passed by the trial Court. Assailing the same, the appellant/plaintiff is before this Court in this second appeal.
11. Learned counsel for the appellant has strenuously argued that the findings of both the 1st Appellate Court as well as the trial Court are erroneous and the property belongs to 1st defendant. It was sold by the plaintiff’s father long back in the year 1959 and the defendants have purchased the said property and they are in possession of the same. There is no recital in the sale deed with regard to the agreement dated 02.02.1959 as per Ex.P.11 held between the father of the plaintiff and the vendor of defendant No.1 i.e., Chandramma who has purchased the property from the father of the plaintiff. The defendant was about to construct a new building and he has demolished his portion of building and he has not touched or damaged the property of the plaintiff. Learned counsel for the appellant/defendant also contended that the passage between the plaintiff and defendants are existing since long back and the wall of the plaintiff is near 3 feet from the wall of the defendant. Such being the case, the question of damaging the plaintiff’s property does not arise. Therefore, the findings of the courts below are required to be set aside and there is substantial question of law involved in this appeal to interfere with the judgment and decree of the courts below and prayed for allowing the appeal.
12. Per contra, the counsel for the plaintiff/respondent has contended that the plaintiff has not disputed that defendant is in possession of the adjacent property of the plaintiff, but it is contended that the entire property of the plaintiff and the defendant was an ancestoral property and the father of the plaintiff sold a portion of the property to the vendor of defendant No.1 way back in the year 1959. At the time of executing the sale deed in favour of Chandramma, there was an agreement held between the plaintiff and the vendor of the defendant on 02.02.1959 that the pillar should not to be damaged and the said document was produced and marked as Ex.P.11. After considering the evidence on record, apart from the Commissioner’s report, the trial Court decreed the suit and the 1st Appellate Court after re-appreciating the evidence on record has upheld the order of the trial Court. Therefore, the learned counsel submits that there is no substantial question of law involved in this appeal to interfere with the concurrent findings of both the courts below and prayed for dismissal of the appeal.
13. Upon hearing the learned counsel for the appellant as well as the respondent and on perusal of the record, it would goes to show that it is not in dispute that the property in question is in possession of defendant No.1. As per the photographs produced before the trial Court, there is a common passage between the wall of the plaintiff and 1st defendant. It is also depicted in the Commissioner’s report. The photographs produced before the trial Court would goes to show that the defendants had demolished the property for the purpose of construction, at that time the said pillar has got damaged. The only contention of the plaintiff is that at the time of selling the property by the father of the plaintiff has undertaken from his vendor as per Ex.P.11 that she will not damage the common pillar though it is situated within the wall of the defendant. It is also not in dispute.
14. The trial Court has confirmed the existence of pillar of both the properties belonging to the parties and the Commissioner appointed by the Court also submitted a report along with sketch showing the damage caused to the plaintiff’s property by the defendant. As per the Commissioner’s report, evidence of PW.3 and the evidence of defendants, the property of the plaintiff is situated on the southern side of the defendant’s property. In the Commissioner’s report, it is clearly mentioned that damage is caused to the wall of the plaintiff and the pillar has been demolished by the defendant. Ex.P.11 – agreement though not referred in the sale deed executed by the father of plaintiff to one Chandramma way back in the year 1959, but conditions in the said agreement would goes to show that the common pillar should not be disturbed by the defendant. After considering the evidence on record, the trial Court appreciating the evidence on record and the Commissioner’s report decreed the suit by holding that the property of the plaintiff has been damaged and thereby directed the defendants to pay Rs.18,000/- as damages. The 1st Appellate Court after considering the evidence on record re-appreciated the evidence and dismissed the suit. It is well settled law by the Hon’ble Apex Court in catena of decisions that for interfering with the concurrent findings of the courts below, the appellant has to show that the findings of the courts below are perverse and illegal. In the present case, the appellant has failed to show that the findings of both the courts below are perverse and illegal and against the documentary evidence. The Commissioner’s report also goes to show that the damage is done to the property of the plaintiff, which is adjacent to the property of the defendant. Therefore, in my opinion, there is no substantial question of law involved in this appeal to admit this second appeal. Hence, the appeal is devoid of merits liable to be dismissed. Accordingly, this second appeal is dismissed.
Sd/- JUDGE PB