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2022 DIGILAW 462 (KAR)

Bhanuprakash v. R. Jagadeesh

2022-04-04

R.NATARAJ

body2022
JUDGMENT 1. This appeal is filed by the unsuccessful plaintiff challenging the concurrent finding of fact recorded by both the Courts that the plaintiff is not entitled to relief of declaration of his easementary right and for perpetual injunction and mandatory injunction to remove the construction put up by the defendant. 2. The parties shall henceforth be referred as they were arrayed before the Trial Court. 3. It is the case of the plaintiff that he purchased the suit schedule property in terms of a Sale Deed dtd. 13/8/1973 and that the eastern boundary of the said property was an alley (galli) and thereafter, the house of the defendant was situated. The plaintiff alleged that he was enjoying free passage of air and light from the windows that were in existence in the eastern wall of building in the suit schedule property. He claimed that there was a 2 feet wide space on the east of the eastern side wall of the building in the suit schedule property which was owned by him. He, claimed that he had an easementary right over the said alley for enjoying free passage of air and light continuously. He alleged that the defendant demolished the building that existed in his property and later on, undertook massive construction over his property by encroaching the alley area and the 2 feet wide space situated on the east of the eastern side wall of the suit schedule property. Therefore, the plaintiff alleged that the defendant had encroached 3 feet alley on the eastern side and also 2 feet wide space on the east of the eastern side wall of the suit schedule property. The plaintiff, therefore, sought for a declaration of his easementary right and for consequential relief of permanent injunction and also for mandatory injunction to demolish the construction put up by the defendant. 4. The defendant contested the suit and claimed that there were two windows in the first floor and three windows in the second floor as contended by the plaintiff. He contended that the plaintiff had no authority to open those windows in the eastern side wall of the suit schedule property. 4. The defendant contested the suit and claimed that there were two windows in the first floor and three windows in the second floor as contended by the plaintiff. He contended that the plaintiff had no authority to open those windows in the eastern side wall of the suit schedule property. He also alleged that the plaintiff had also opened windows in the first and second floor on the northern side wall of the suit schedule property facing the main door and therefore, he had enough passage of air and light, which was sufficient for his comfortable living in the suit schedule property. 5. Defendant also contended that his property was old and dilapidated which comprised of three shops and a residential house. Since the tenants who were in occupation of the said property did not vacate, he filed HRC Nos.27, 28 and 29 of 2008 on the file of the II Additional I Civil Judge (Jr.Dn.), Mysuru. The tenants in the said cases entered into compromise and handed over vacant possession of the said property. Thereafter, the defendant demolished and reconstructed the building in his property, which the plaintiff could not resist and therefore, filed the present suit. 6. Based on these rival contentions, the Trial Court framed the following issues: "i) Whether the plaintiff proves that he has been drawing air and light uninterruptedly through 3 feet width galli situated to the eastern side of the suit schedule property by way of easementary right? ii) Whether the plaintiff proves that the defendant has illegally constructed building to an extent of 5 feet width including the galli measuring 3 feet to the eastern side of the suit schedule property? iii) Whether the plaintiff proves that the defendant is illegally making further attempt to construct the building over the said 5 feet width area to the eastern side of the suit schedule property? iv) Whether the plaintiff is entitled for the declaration of easementary right as prayed? v) Whether the plaintiff is entitled for the relief of mandatory injunction and permanent injunction as prayed for? vi) What order or decree?" 7. The plaintiff was examined as P.W.1 and he marked documents as Exs.P1 to P24 and also examined another witness as P.W.2. The defendant was examined as D.W.1 and he marked the documents as Exs.D1 to D17. 8. vi) What order or decree?" 7. The plaintiff was examined as P.W.1 and he marked documents as Exs.P1 to P24 and also examined another witness as P.W.2. The defendant was examined as D.W.1 and he marked the documents as Exs.D1 to D17. 8. It can be gathered from the Judgment of both the Courts that the suit property was owned by Surappa who sold it to Kempamma on 21/12/1916 (Ex.P4) and later her grandson Rangaswamy sold it to plaintiff on 13/8/1973 (Ex.P1). The Trial Court noticed from Ex.P4 - Sale Deed dtd. 21/12/1916 that the boundaries of the suit schedule property purchased by the plaintiff was, East by alley and house of Olagada Puttanna, West by the share of father of the vendor of the plaintiff, North by road and South by conservancy. This was in contradiction with Ex.P1 which was the Gift Deed executed by the father of the plaintiff which showed the eastern boundary not as alley, but as the house of Hanumanthaiah. Therefore, the Trial Court held that even according to the case of the plaintiff, the eastern alley did not exist as per Ex.P1. The Trial Court noticed the evidence of P.W.1, where he deposed that the construction put up by him abutted the old construction of the defendant as per Exs.D1 and D2. He also admitted that the RCC construction found therein belonged to the plaintiff, while the old building belonged to the defendant. The Trial Court, therefore, held that it is not the defendant who had encroached into the alley, but it was the plaintiff who had encroached into the alley abutting the house of the defendant and there was no vacant space on the eastern side of the house of the plaintiff. The plaintiff deposed that he had constructed the house on the suit property as per the plan and the measurement of the old house that existed and the new house constructed was mentioned therein. However, he did not produce the building plan. It also held that a perusal of Ex.D2 disclosed that the wall on the eastern side of the alley was a common wall separating the property of the plaintiff and defendant. The Trial Court relying upon Exs.D1 and D2 further held that it was the plaintiff who had not left any set back area on the eastern side of his building and thus, dismissed the suit. 9. The Trial Court relying upon Exs.D1 and D2 further held that it was the plaintiff who had not left any set back area on the eastern side of his building and thus, dismissed the suit. 9. Being aggrieved by the aforesaid judgment and decree, the plaintiff preferred R.A.No.251/2018. 10. The First Appellate Court secured the records of the Trial Court, heard the counsel and framed the following points for consideration: "i) Whether appellant had urged valid and proper grounds to set aside the judgment and decree passed by the lower court as it is opposed to law, facts and circumstances of the case and interference of this court is necessary? ii) What order?" 11. The First Appellate Court held that Exs.D2 and D3 disclosed that there was no space between the property of the plaintiff and the defendant on the eastern side. Therefore, it held that the claim of the plaintiff that there was 2 feet wide space belonging to him on the eastern side of the eastern wall was not proved. It also held that a perusal of Ex.P1 did not disclose that there was any space on the eastern side and therefore, the First Appellate Court dismissed the appeal. 12. Being aggrieved by the aforesaid judgments and decrees, the present second appeal is filed. 13. Learned counsel for the plaintiff submitted that the Trial Court and the First Appellate Court committed an error in appreciating the evidence of the plaintiff. He submitted that the evidence disclosed that there did exist an alley on the eastern side and 2 feet wide space on the east of the eastern side wall of the suit schedule property. He also submitted that the defendant had demolished the existed building and constructed a new building by encroaching the alley and had thereby deprived the free flow of air and light to the plaintiff. 14. Learned counsel for the plaintiff further submitted that an application was filed before the Trial Court for appointment of a Commissioner to measure the property of the plaintiff and the defendant and that the same was rejected by the Trial Court without proper reasons. 14. Learned counsel for the plaintiff further submitted that an application was filed before the Trial Court for appointment of a Commissioner to measure the property of the plaintiff and the defendant and that the same was rejected by the Trial Court without proper reasons. Learned counsel also submitted that if only the Trial Court had appointed a Commissioner, the exact extent of the property owned by the plaintiff and the defendant would have been decided and it would have assisted the Court in arriving at a conclusion whether the plaintiff or the defendant had encroached the alley on the eastern side. 15. It is evident from the impugned judgment of the Trial Court and the First Appellate Court that Exs.D2 and D3 indicated the nature and extent of construction put up by the plaintiff over the suit property. It is evident that the old building of the defendant existed until the plaintiff demolished and re-constructed a new building over the suit property. The building over the suit property extended upto the building of the defendant on the eastern side. Therefore, if the plaintiff had extended his building up to the western wall of the defendant, the plaintiff cannot claim that there existed an alley or 2 feet wide space beyond the eastern side wall of his property. It was also evident from Ex.P1 that there existed no vacant space or alley on the eastern side of the property of the plaintiff. The Trial Court and the First Appellate Court have considered the contentions urged by the plaintiff and have rightly dismissed the suit. 16. The contention of the plaintiff that the Trial Court ought to have appointed a Commissioner to ascertain the measurement of the property is to be rejected for the simple reason that it was not the case of the plaintiff before the Trial Court that the defendant had encroached into his property. In that view of the matter, the question of appointment of a Commissioner did not arise. 17. The Trial Court and the First Appellate Court have recorded a finding of fact based on the oral and documentary evidence and this Court does not consider it appropriate to interfere with the said finding of fact. Hence, no substantial question of law arises for consideration in this second appeal and the same is accordingly dismissed.