Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Kar) 37

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
SACHIN SHANKAR MAGADUM, J.
Smt. Kasturi W/o Sadashiv Meti – Appellant
Versus
Shri Kadappa S/o Tippanna Payagond – Respondent
M.S.A. No. 537 of 2013
Decided On : 16-02-2022

Advocates:
Advocate Appeared:
For the Appellants : Anil Kale, Basavaraj Byakod.
For the Respondent: K.L. Patil.

Point of Law: While examining the judgment of trial court, the appellate court has to render its finding only after dealing with all the issues of law as well as of fact and with the oral as well as documentary evidence, led by the parties.

Headnote:
Civil Procedure Code, 1908 - Order XLI Rules 30 and 31, Section 9, 107(2) - Karnataka Municipalities Act, 1964 - Section 187 (7)(1), 187(9)(a) - MSA is filed u/o 42 rule 1(u) of CPC praying to call for records, allow this appeal and set aside judgment and decree - Trial Court held that plaintiff has also failed to prove that defendants have put up a beam on “AB” wall and constructed other structure by encroaching over plaintiff's property at 'BIT point on southern side abutting to plaintiff's “AB” wall - Trial Court has also found in cross-examination that “ABE” wall is in a single line alignment and there was a partition between plaintiff - That there is absolutely no evidence to demonstrate that “AB” wall as shown in sketch is exclusive wall of plaintiff - Trial Court proceeded to dismiss suit by holding that plaintiff is not exclusive owner of “AB” wall and construction made by defendants is not illegal as alleged by plaintiff - Plaintiff is not entitled for relief of mandatory injunction - First appellate Court was of view that trial Court has not properly appreciated oral and documentary evidence and has hurriedly relying on judgment cited by defendants has proceeded to dismiss suit - That extended construction put up by defendants wherein frontage of plaintiff's house, which is abutting public road, appears to be affected by this construction.
Finding of the Court:
First appellate court has not independently assessed actual lis between parties and has not independently considered evidence on record in background of dispute between plaintiffs and defendants who are adjoining owners - What appellate court lost sight of is that supplementing of appreciation is contemplated at appellate stage under Order XLI Rule I of CPC and independent appraisal of evidence is duty of appellate court - Failure to do and discharge duty is an abdication of appellate power - While examining judgment of trial court, appellate court has to render its finding only after dealing with all issues of law as well as of fact and with oral as well as documentary evidence, led by parties - Court must give reasons in support of its findings and reasons of trial court are to be dealt on all issues and cogent reasons are to be assigned - First appellate Court has acted in excess of its powers and has totally mis-appreciated true controversy between parties - Appellate Court has also not complied mandatory provisions of Order XLI Rules 30 and 31 of CPC.
Result: Second Appeal allowed.

JUDGMENT :

SACHIN SHANKAR MAGADUM, J.

1. The captioned miscellaneous second appeal is filed by the appellants/defendants questioning the judgment and decree dated 31.01.2013 passed by the Fast Track Court, Jamakhandi, in R.A. No. 25/2008 in remanding the matter to the trial Court for fresh consideration.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

The controversy between the parties revolves around the dispute in regard to “AB” wall of defendants. The sketch would be relevant to understand the rival claim of defendants and the plaintiff, which is extracted as under:

(A)	PLAINTIFF'S HOUSE
	CTS No. 3239A/3
(B)	DEFENDANT'S NEW
	House CTS No. 3239A/4

The plaintiff filed the suit for mandatory injunction and also claimed perpetual injunction against the defendants. The plaintiff claims to be owner of the property bearing CTS No. 3239A/3 and the same is shown by letters “ABEFG” shown in the sketch. It is further contended that the defendants are the owners of the house bearing No. 3239A/4 which is referred by the letters “BCDE” in the sketch. The husband of defendant No. 1 and father of defendants 2 and 3 namely Sadashiv Meti though initially stopped the construction as plaintiff lodged complaint before the TMC, Jamakhandi, the defendants however highhandedly and illegally has put up a beam on plaintiff's “AB” wall extending upto the point “H.” The plaintiff's contention is that the defendants have made illegal construction without any permission from the TMC, Jamakhandi. The plaintiff also contended that though he has lodged complaint with TMC, the authority has not taken any action to restore the original position. The plaintiff alleges that defendants are highly influential persons and therefore, apprehending that defendants may put up illegal construction by encroaching the plaintiff's property has filed the suit seeking relief of mandatory injunction and also consequential relief of perpetual injunction.

In response to summons, the defendants tendered appearance before the Court and filed written statement and stoutly denied the entire averments made in the plaint. The defendants specifically contended that northern wall is a joint wall and the same is indicated in the sale deed of defendants executed by the erstwhile owner namely Basappa Payagond who is none other than the brother of the plaintiff. The specific allegation that defendants have highhandedly constructed beam on plaintiff's “AB” wall extending upto point “H” is stoutly denied by the defendants and specifically contended that “ABE” wall is a common wall of plaintiff and defendants, which is of considerable length and width. The defendants specifically contended that the common wall measures 9 inch in width towards defendants' side and this portion is demolished and the same is replaced by a brick wall. Further, the RCC slab is constructed on the said brick wall projecting 3 inches width sajja throughout the frontage. Further, it is specifically contended that 9 inch width brick wall is raised through out the length of “ABE” wall over which RCC beam has been laid and the allegations made in the plaint are frivolous and false. Therefore, the defendants requested to dismiss the suit.

The plaintiff in support of his contention examined himself as PW-1 and adduced documentary evidence vide Exs.P1 to P5. By way of rebuttal evidence, the defendants examined defendant No. 2 as DW-1 and their vendor as DW-2 and have produced rebuttal documentary evidence vide Exs.D1 to 7.

The trial Court having assessed the oral and documentary evidence has answered issue No. 1 in the negative by recording a categorical finding that plaintiff has failed to prove that “AB” wall is an exclusive wall. While answering Issue Nos.2 and 3, the trial Court has also held that the

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2022 Supreme(Kar) 37

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCHSACHIN SHANKAR MAGADUM, J.Smt. Kasturi W/o Sadashiv Meti – AppellantVersusShri Kadappa S/o Tippanna Payagond – RespondentM.S.A. No. 537 of 2013Decided On : 16-02-2022

Point of Law: While examining the judgment of trial court, the appellate court has to render its finding only after dealing with all the issues of law as well as of fact and with the oral as well as documentary evidence, led by the parties.

Cases Referred (3)

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
SACHIN SHANKAR MAGADUM, J.
Smt. Kasturi W/o Sadashiv Meti – Appellant
Versus
Shri Kadappa S/o Tippanna Payagond – Respondent
M.S.A. No. 537 of 2013
Decided On : 16-02-2022