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2023 Supreme(Kar) 754
IN THE HIGH COURT OF KARNATAKA
Sachin Shankar Magadum, J.
Saraswathi – Appellant
Versus
K. N. Thirumala Raj – Respondent
R.S.A No. 3055 of 2006(INJ)
Decided On : 02-01-2023
K.N.Thirumala Raj, Advocate, N.Shankaranarayana Bhat, Advocate
The plaintiff was entitled to protection unless the construction of the compound wall violated local act regulations.
Headnote:
Injunction - Property Dispute - Local Act - [Section 6, Section 8, Section 10 of the Local Act] - The court examined the controversy between the parties regarding the existence and height of a compound wall. The plaintiff sought injunction against the defendants from damaging the wall, while the defendants disputed the increase in height. The Appellate Court erred in dismissing the suit without considering the actual controversy and misinterpreting the existence of the compound wall. The plaintiff was entitled to protection unless the construction of the wall violated local act regulations.
Fact of the Case:
The plaintiff filed a suit for injunction against the defendants, alleging that they tried to encroach on the plaintiff's property by damaging the existing compound wall. The Trial Court decreed the suit, but the Appellate Court allowed the defendants' appeal and dismissed the suit.
Finding of the Court:
The Appellate Court erred in dismissing the suit without examining the actual controversy between the parties. The plaintiff was entitled to protection unless the construction of the compound wall violated local act regulations.
Issues: Dispute over the existence and height of the compound wall, non-joinder of necessary party, and the entitlement of the plaintiff to perpetual injunction.
Ratio Decidendi: The existence of the compound wall was not in dispute, and the Appellate Court erred in misinterpreting the controversy and the relevant legal provisions.
Final Decision: The second appeal was allowed, and the judgment and decree of the Appellate Court were set aside, restoring the judgment and decree passed by the Trial Court.
JUDGMENT/ORDER
1. The captioned second appeal is filed by the plaintiff feeling aggrieved by the divergent findings of the Courts below wherein Appellate Court has allowed the appeal filed by the defendants and the plaintiff's suit for injunction simplicitor is dismissed. These divergent findings are under challenge by the plaintiff.
2. For the sake of brevity, the parties are referred to as per their rank before the Trial Court.
3. The plaintiff has instituted the present suit for injunction simplicitor seeking perpetual injunction against the defendants. The plaintiff has alleged that on 6/11/1996, the defendants tried to encroach over the plaintiff's property by damaging the existing compound wall. The present suit is filed alleging that defendants are rich, influential and backed by anti social elements and there is every possibility that they would demolish the existing compound wall and hence, the present suit.
4. The defendant No.1 tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendant No.1 disputed the plaintiff's title over the suit schedule property and also disputed its measurements. The defendant No.1 contended that plaintiff has encroached 10 feet passage belonging to the municipality and therefore, has put up a compound wall by encroaching over the municipality property and inspite of there being serious protest by defendant Nos.1 and 2, the plaintiff has raised the height of the compound wall to 10 feet. The defendants alleged that plaintiff by encroaching has left only 1 1/2 feet vacant space and therefore, the highhandedness of plaintiff has affected the easementary rights of defendants and hence, sought for dismissal of the suit.
5. The plaintiff and defendants to substantiate their respective claim, have led in oral and documentary evidence.
6. The Trial Court having examined the material on record, answered issue Nos.1 to 3 in the affirmative. The Trial Court held that plaintiff has succeeded in proving her lawful possession over the suit schedule property. The Trial Court also held that plaintiff has succeeded in proving the alleged interference by the defendants and proceeded to decree the suit.
7. The defendants feeling aggrieved by the judgment and decree passed in O.S.No.427/1996 preferred appeal in R.A.No.267/2006 while defendants preferred appeal in R.A.No.315/2006 questioning the judgment and decree passed in O.S.No.426/1996 which was also for bare injunction filed by the defendants. The said suit was also dismissed. Both the appeals were clubbed and the Appellate Court having assessed oral and documentary evidence on record, however, took a divergent view in regard to the controversy between the parties. The Appellate Court while examining Ex.D-2 which is a commissioner's report tendered in bare suit for injunction filed by the defendants has come to conclusion that properties held by plaintiff and defendants is divided by a common passage measuring 10 feet. Therefore, referring to these rebuttal evidence, Appellate Court was of the view that plaintiff is not entitled for injunction. The Appellate Court has also held that the present suit filed by plaintiff is bad for non- joinder of necessary party. The Appellate Court was of the view that municipality is a necessary party and therefore, held that the present suit for injunction without impleading the municipality is not maintainable. Having drawn adverse inference against the plaintiff, the Appellate Court proceeded to hold that defendants have not encroached over the plaintiff's property and therefore, proceeded to hold that plaintiff is not entitled for perpetual injunction against the defendants. Consequently, the appeal filed by the defendants in R.A.No.267/2006 was allowed. Consequently, suit filed by the plaintiff was dismissed. However, the decree passed in the connected suit filed by defendant in O.S.No.426/1996 was confirmed by the Appellate Court. The appeal filed by the
