ORAL JUDGMENT

1. The plaintiffs are before this Court in the Regular Second Appeal assailing the judgment and decree passed in R.A. Nos.104/2006 & 105/2006, dated 28.02.2007 on the file of the II-Addl. Civil Judge (Sr.Dn.) Ballari (for short “the First Appellate Court”) confirming the judgment and decree in O.S. Nos.362/1995 & 183/1995 dated 20.02.2001 on the file of the Prl. Civil Judge (Jr.Dn.), Ballari (for short “the trial Court”).

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

3. Suit schedule property in both the suits is Building bearing Door Nos.21, XI Ward, Aspalli Lane, Flower Street, Ballari with the following boundaries:

“East: Premises belonging to Kavakuntla Bheemaiah Family and lane;

West: Open space belonging to the defendant;

North: Premises originally belonging to Tunga Guru Siddappa and Gogi Gunapallappa; &

South: Premises belonging the Soruppa family.”

4. O.S. No.183/1995 is filed seeking permanent injunction and O.S. No.362/1994 is filed seeking permanent injunction as well as mandatory injunction in respect of the suit schedule property. The case of the plaintiffs is that, they are the absolute owner of the suit schedule property and the property is 60 years old building and there are two ventilators in the western wall. There are two portions, consisting of two rooms and in occupation of the tenants. The western wall contains ventilators, which is the only source of air and light and is the exclusive wall belonging to the plaintiffs. It is the case of the plaintiffs that the defendant is the owner of the property situated towards western side of the suit schedule property. The defendant started construction with RCC pillars by leaving just one feet from exclusive western wall of the plaintiffs. It is the case of the plaintiffs that, the defendant completed the construction without leaving 10 feet open space between his construction and the western wall of the plaintiffs and it is blocking the ventilators and preventing the access of air and light.

5. The defendant appeared and filed written statement inter alia contending that the plaintiffs have not mentioned as to what is the inconvenience caused to the plaintiffs when the construction by the defendant is in his property and there is a wall which divides and demarcates the property of the plaintiffs and defendant. It is stated that the defendant is putting up the construction after obtaining the necessary permission from the authorities and construction of defendant does not prevent the access of any air and light as contended by the plaintiffs.

6. The trial Court based on the pleadings in both the suits, framed the following issues:

“ISSUES (IN O.S.NO.362/1995)

1. Whether plaintiffs prove that they are the absolute owners of the schedule property?

(Deleted)

2. Whether plaintiffs prove that defendant is the owner of adjacent to the suit property on western side? (Deleted)

3. Whether plaintiffs prove that defendant has recently started put up construction in the suit open space with R.C.C. Pillars? (Deleted)

4. Whether plaintiffs prove that the defendant started to put up construction adjacent to the suit property on the western side by leaving just one feet between the western wall of the suit schedule property and the proposed construction?

5. Whether plaintiffs prove that western wall of the suit schedule property which divides the properties of plaintiffs and defendant is exclusive wall belonging to the plaintiffs?

6. Whether plaintiffs prove that defendant has to construct his construction in his property within a distance of 10' from western wall of the suit premises?

7. Whether plaintiffs are entitled for the relief of permanent injunction as prayed for?

8. What order and decree?

ADDITIONAL ISSUE

1. Whether the plaintiff is entitled to the relief of mandatory injunction?

ISSUES (IN O.S.NO.183/1995)

1. Whether the plaintiff proves that the plaintiff is the absolute owner in possession of the suit schedule property