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2017 DIGILAW 1457 (ORI)

Padma Charan Purohit v. Uma Patra

2017-12-15

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Defendant is the appellant against reversing judgment. 2. Plaintiff-respondent instituted the suit for mandatory injunction and permanent injunction. The case of the plaintiff is that the defendant is his neighbour. The defendant demolished his old house with a view to remodel/renovate the old one. She had absolute right, title, interest and possession over the wall of her house. Defendant has no semblance of right, title and interest over the wall. He illegally scrapped away and removed 10 inches from the outer side of northern wall of her house and put a plinth bent on her plinth. He digged the wall and made construction of a wall to height of four feet on her plinth. With this factual scenario, she instituted the suit seeking the relief mentioned supra. 3. The defendant resisted the claim of the plaintiff pleading, inter alia, that the suit wall was a common wall. He approached the plaintiff and requested her to give consent to construct the wall by subscribing half of amount, as it was a common wall being used by both the parties. The plaintiff did not agree. There was urgent need of remodelling of this old house. Having no other way out, he constructed a new wall of his own without causing any harm to the northern side wall. 4. Stemming on the pleadings of the parties, the learned trial court struck four issues. Learned trial court appointed a Commissioner under Order 26 Rule 9 CPC to take measurement of the suit house of the plaintiff and defendant and to ascertain the situs of the disputed wall. The Commissioner took the measurement of the plaintiff’s house. He could not measure the house of the defendant since it was locked. In course of trial, the Commissioner has examined as P.W.2. He stated that he could not measure the house of the defendant, since it was locked. Learned trial court came to hold that both the parties have right, title and interest over the suit wall. Held so, it dismissed the suit. The plaintiff filed T.A. No. 55 of 1988 before the learned District Judge, Berhampur, Ganjam, which was subsequently transferred to the court of the learned Additional District Judge, Berhampur and renumbered as T.A. No. 55/88 (T.A. No. 20/87 GDC). Learned appellate court framed an issue “as to whether the suit wall is a joint wall of both the parties”. The plaintiff filed T.A. No. 55 of 1988 before the learned District Judge, Berhampur, Ganjam, which was subsequently transferred to the court of the learned Additional District Judge, Berhampur and renumbered as T.A. No. 55/88 (T.A. No. 20/87 GDC). Learned appellate court framed an issue “as to whether the suit wall is a joint wall of both the parties”. It held that the defendant has not challenged the sale deed executed in favour of the father of the plaintiff vide Ext.1. The Commissioner went to spot. Defendant deliberately had avoided to remain present. Scrapping of 41/2 inches of the wall from the side of the defendant is gaining strength in view of the fact that D.W.2 had clearly stated that no plinth was laid for the new wall which was constructed by him. Without the plinth, a wall could not be constructed for the resting of a roof over it. The defendant without any semblance of right, title, interest or possession over this northern wall of the plaintiff interfered and constructed the house resting the roof over the wall. Held so, it directed the defendant to demolish his construction of the wall touching to the plaintiff’s northern portion of the wall of the suit house at his own costs and allowed the appeal. 5. The Second Appeal was admitted on the following substantial question of law:- “Whether the lower appellate court was right in reversing the decision of the trial court without discussing the materials and without giving the specific finding that the plaintiff has succeeded in establishing his case that the disputed wall in question exclusively belonged to him ?” 6. Heard Mr. Ashok Mohanty, learned Senior Advocate along with Ms. Lopamudra Pradhan, learned advocate for the appellant. None appears for the respondent. 7. Mr. Mohanty, learned Senior Advocate for the appellant submits that during trial, a civil court Commissioner was deputed to ascertain the position of the wall. The Commissioner was examined P.W.2. He stated that the house of the defendant was locked. For unavoidable reasons, the defendant could not remain present, when the Commissioner visited his spot. In view of the same, an opportunity ought to have been provided to the Commissioner to measure the house. He further submits that the learned appellate court fell into patent error of law in framing an issue and deciding the same. According to Mr. For unavoidable reasons, the defendant could not remain present, when the Commissioner visited his spot. In view of the same, an opportunity ought to have been provided to the Commissioner to measure the house. He further submits that the learned appellate court fell into patent error of law in framing an issue and deciding the same. According to Mr. Mohanty, learned Senior Advocate, once the learned appellate court frames an issue, it is incumbent on him either to set aside the judgment of the learned trial court and remit the matter back for de novo hearing or keep the appeal itself and direct the learned trial court to answer the issue and return the findings. There is no material available on record that the wall has been constructed over the house of the plaintiff. It is a joint wall. He further submits that the defendant does not dispute the title of the plaintiff where the house is constructed. The defendant disputes the construction of the boundary. Thus the question of challenging the sale deed does not arise. The finding of the learned appellate court that the defendant has not challenged the sale deed is perverse. 8. This Court finds ample force in the submission of Mr. Mohanty, learned Senior Advocate for the appellant. The dispute pertains to a wall. Rightly, the learned trial court has deputed a commissioner to ascertain the position of the same. But then, the commissioner submitted a report holding, inter alia, that when he visited the spot, the house of the defendant was locked. In such a contingency, the learned appellate court could have deputed a survey knowing commissioner to ascertain the truth. The learned appellate court is also not justified in framing an issue and decides the same. The substantial question of law is answered accordingly. 9. As a sequel to the above conclusion, the judgment and decree of the learned appellate court are set aside. The matter is remitted back to the learned appellate court for de novo hearing. Learned appellate court may appoint a survey knowing commissioner to give quietus of the issue. To avoid further delay, the appellant shall appear before the learned District judge, Berhampur, Ganjam on 19th January, 2018, on which date, the learned District judge, Berhampur, Ganjam shall issue notice to the respondent and conclude the hearing of the appeal within a period of six months.