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2022 DIGILAW 182 (KAR)

Atta-ur-rahiman v. Basavaraj

2022-02-09

SACHIN SHANKAR MAGADUM

body2022
JUDGMENT 1. The captioned second appeal is filed by unsuccessful defendants questioning the concurrent judgment and decree of the Courts below wherein the suit filed by the respondents/plaintiffs seeking relief of declaration and consequential relief of mandatory injunction is decreed thereby directing the present appellants to remove the pan shop constructed by defendant Nos.1 to 4 in the portion of common staircase and a further direction to restore the KEB meters which existed prior to shifting at their own cost. 2. The facts leading to the case are as under: The respondents/plaintiffs filed a suit for declaration and for consequential relief of mandatory injunction. The respondents/plaintiffs contended that plaintiff Nos.1 to 3 along with defendants family members jointly purchased the suit property from erstwhile owner namely one Pushpa Mallikarjuna Reddy in the year 2011 under registered sale deed. The respondents further contended that both the joint purchasers got the property divided under registered partition deed dtd. 9/3/2015. It was specifically contended that the western portion of the property measuring 421 sq.ft. was allotted to the share of plaintiffs whereas eastern portion was allotted to the share of defendants family.Whereas the suit staircase measuring 6ft x 20 ft. was kept as a common staircase/common passage. 3. The grievance of the respondents/plaintiffs was that the present appellant Nos.1 to 4/defendant Nos.1 to 4 having succeeded to the eastern portion under registered partition deed without any semblance of exclusive right over the suit staircase have illegally constructed pan shop in the portion of a suit staircase and the same is rented to appellant No.5/defendant No.5. In the process, the appellant Nos.1 to 4/defendant Nos.1 to 4 have also illegally shifted electric meters situated in the first floor and thereby causing interference and obstruction in peaceful usage and enjoyment of respondents/plaintiffs right in the common suit staircase. It is on this ground, the respondents/plaintiffs filed a suit for declaration and for consequential relief of mandatory injunction. 4. On receipt of summons, the present appellant Nos.1 to 4 filed written statement and stoutly denied the entire averments madein the plaint. However, they admitted the ownership of respondents/plaintiffs over western portion measuring 421 sq.ft. It is on this ground, the respondents/plaintiffs filed a suit for declaration and for consequential relief of mandatory injunction. 4. On receipt of summons, the present appellant Nos.1 to 4 filed written statement and stoutly denied the entire averments madein the plaint. However, they admitted the ownership of respondents/plaintiffs over western portion measuring 421 sq.ft. They have specifically contended that the pan shop was in fact constructed by the original owner and the same was rented to appellant No.5/defendant No.5 much prior to purchase made by defendant Nos.1 to 4 and therefore, sought for dismissal of the suit. 5. The Trial Court, having examined oral and documentary evidence and having also taken note of several categorical admissions given by DW.1 in cross-examination, found that there is absolutely no recital in the sale deed of appellant Nos.1 to 4 in Ex.D-7 in regard to existence of pan shop. DW.4 who is the owner of stationery shop has specifically deposed that there was no pan shop under the staircase. The Trial Court has also taken into consideration the recitals in the registered partition deed and in the said partition deed, there is absolutely no reference to existence of a pan shop. 6. While cross-examining PW.1, the learned counsel appearing for defendant Nos.1 to 4 has made a specific suggestion that on account of inconvenience to record reading of electricity meter, the KEB authorities have shifted the meters. Therefore, by making such a suggestion, defendant Nos.1 to 4 during trial have admitted that they have shifted the electric meter which was infact located near the staircase. Having referred to the material evidence on record, Trial Court has come to conclusion that this electric meter was shifted by defendant Nos.1 to 4 only with an ulterior motive to utilize the vacant space for putting up pan shop and thereby defendant Nos.1 to 4 have illegally asserted exclusive right over the common passage which was in fact kept joint between plaintiffs and defendants. 7. The Trial Court has also taken note of the photographs which are produced by both the sides. Having assessed the ocular and documentary evidence over all, the Trial Court has come to conclusion that the staircase area is in fact kept common among plaintiffs and defendants family and the said fact is evident from the recitals in the registered partition deed which is not disputed by the present appellants/defendants. Having assessed the ocular and documentary evidence over all, the Trial Court has come to conclusion that the staircase area is in fact kept common among plaintiffs and defendants family and the said fact is evident from the recitals in the registered partition deed which is not disputed by the present appellants/defendants. On these set of reasonings, the Trial Court has proceeded to dismiss the suit and the same is confirmed by the First Appellate Court in R.A.No.99/2019. 8. Heard the learned counsel appearing for appellants and learned counsel appearing for respondents. 9. It is not in dispute that plaintiffs and defendants together have purchased the suit schedule property from their erstwhile owner under registered sale deed dtd. 12/3/2015. In the said sale deed, it is clearly recited that both plaintiffs and defendant Nos.1 to 4 have been jointly enjoying the staircase. The defence set up by the present appellant Nos.1 to 4 is that defendant No.5 has been running a pan shop as a tenant under the original owner and therefore, the pan shop was in existence much prior to joint purchase made by plaintiffs and defendants. Having taken such a contention, neither defendant Nos.1 to 4 nor defendant No.5 have placed cogent and clinching rebuttal evidence to disprove the allegations made by the plaintiffs that the staircase is being illegally utilized to run pan shop by defendant No.5 in collusion with defendant Nos.1 to 4. 10. The Trial Court as well as Appellate Court having reappreciated oral and documentary evidence have rightly discarded the documents which are relied by the present appellants/defendants vide Ex.D-1 to D-6 and D-10 to D-18. Both the Courts having referred to the recitals made in the sale deed and also the registered partition deed dtd. 9/3/2015 have come to conclusion that the staircase measuring 6 ft. x 20 ft. was infact kept common and both plaintiffs and defendant Nos.1 to 4 are entitled to use the staircase and therefore, defendant Nos.1 to 4 cannot assert exclusive right. It is in this background, both the Courts have proceeded to declare that plaintiffs and defendant Nos.1 to 4 have got right to use the staircase jointly and consequently mandatory injunction is granted directing the present appellants to remove the pan shop and to restore the electric meters which was in existence prior to illegally putting up pan shop. 11. It is in this background, both the Courts have proceeded to declare that plaintiffs and defendant Nos.1 to 4 have got right to use the staircase jointly and consequently mandatory injunction is granted directing the present appellants to remove the pan shop and to restore the electric meters which was in existence prior to illegally putting up pan shop. 11. The concurrent findings recorded by the Courts below is based on legal evidence adduced by the respondents/plaintiffs. The rebuttal evidence led in by appellants/defendant Nos.1 to 5 would not come to the aid of the present appellants/defendants. If the suit staircase is kept in common, the present appellant Nos.1 to 4/defendant Nos.1 to 4 cannot assert exclusive right and they are bound by the recitals in the registered sale deed which was jointly purchased by the plaintiffs and defendants and consequently they are also bound by the terms and conditions contemplated in the registered partition deed where the staircase is kept joint. In that view of the matter, both the Courts were justified in granting relief of mandatory injunction directing the defendant Nos.1 to 5 to immediately remove the pan shop which was illegally constructed by them under the portion of suit staircase and both the Courts were justified in directing the KEB authorities to restore the KEB meters where it existed prior to shifting highhandedly. 12. Therefore, on perusal of the material on record, I do not find any substantial questions of law that would arise for consideration in the present appeal. Accordingly, the appeal is devoid of merits and the same stands dismissed.