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2023 DIGILAW 10 (KAR)

Saraswathi v. K. N. Thirumala Raj

2023-01-02

SACHIN SHANKAR MAGADUM

body2023
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. 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 defendants questioning the judgment and decree passed in O.S.No.426/1996 was also dismissed. 8. The present captioned appeal is filed by the plaintiff questioning the findings of the Courts below arising out of R.A.No.267/2006. 9. This Court vide order dtd. 29/2/2008 was pleased to admit the appeal on the following substantial question of law: "Whether the lower Appellate Court was justified in holding that though the grievance of the plaintiff was his compound wall is being damaged by the defendant still holding the encroachment alleged is not proved?" 10. Heard learned counsel appearing for the appellant/plaintiff. The defendants have not chosen to contest the appeal. 11. Heard learned counsel appearing for the appellant/plaintiff. The defendants have not chosen to contest the appeal. 11. The short point that needs consideration at the hands of this Court is, as to whether the Appellate Court erred in dismissing the suit without examining the actual controversy between the parties. The present suit for bare injunction is filed by the plaintiff under an apprehension that defendants are likely to cause damage to the existing compound wall put up by plaintiff. While defendants' grievance is that plaintiff has highhandedly increased the height of compound wall which was in existence from 6 feet to 10 feet. 12. Now para 6 of the written statement would clinch the entire controversy between the parties. The existence of compound wall over the plaintiff's property is not in dispute. The defendants are alleging that on account of increase of height of the compound wall, his easementary rights are being affected. So what probably presupposes is that defendants are not happy with the plaintiff's act of increasing the height of compound wall. The defendants are feeling aggrieved by the increase of height of compound wall and probably it appears that there was some exchange of words between plaintiff and defendants who are adjoining owners. Therefore, plaintiff apprehending that there is likelihood of defendants taking law in their hands has come up with this bare suit for injunction seeking protection against the defendants from demolishing the compound wall. It is in this background, this Court is of the view that para 6 of the written statement would be relevant and the same is culled out as under: "6. That the act of the plaintiff is highly arbitrary and his act is the arrogant character of the plaintiff. The plaintiff has no right whatsoever to exceed her measurements shown in the schedule property. Even otherwise the schedule shown by the plaintiff is defective. That the plaintiff being influenced by the local politicians and also the Municipal authorities she is over riding the mandatory provisions to be followed in putting a compound has clearly violated the terms of the license. Even otherwise the schedule shown by the plaintiff is defective. That the plaintiff being influenced by the local politicians and also the Municipal authorities she is over riding the mandatory provisions to be followed in putting a compound has clearly violated the terms of the license. Though the license discloses that she can erect the compound to a height of six feet she has erected compound wall to a height a more than 8 feet, virtually blocking the air, light and using the passage which they were using from the time immemorial and from the days of their predecessors in title." 13. On plain reading of the averments made at para 6 of the written statement, the existence of compound wall is not at all in dispute. Now whether this compound wall is put up by plaintiff by encroaching over the common passage is not the subject matter of the suit. The plaintiff is seeking perpetual injunction to restrain the defendants from encroaching over the suit schedule property by damaging the existing compound wall. If defendants have admitted in unequivocal terms at para 6 of the written statement in regard to existence of the compound wall, then I am of the view that the entire approach adopted by the Appellate Court is found to be patently erroneous. Appellate Court has missed out the actual controversy between the parties. It has proceeded on some insignificant and irrelevant incidents which in fact had no relevancy to the dispute between plaintiff and defendants. The plaintiff apprehends that the defendants may demolish the existing compound wall while defendants are asserting that plaintiff had no right to increase the height of the compound wall. If the compound wall put up by plaintiff is in contravention to rules and bye-laws of local Act, then defendants can have recourse and seek remedy in the manner provided under law and therefore, cannot take law in their hands. Therefore, this Court is of the view that the Trial Court was justified in granting perpetual injunction. The findings and conclusions recorded by the Trial Court are very casually reversed by the Appellate Court. The findings of the Appellate Court that there is a passage measuring 10 feet between plaintiff's property and defendants' property was totally unwarranted. The existence of compound wall surrounding the plaintiff's property is not in dispute. The findings and conclusions recorded by the Trial Court are very casually reversed by the Appellate Court. The findings of the Appellate Court that there is a passage measuring 10 feet between plaintiff's property and defendants' property was totally unwarranted. The existence of compound wall surrounding the plaintiff's property is not in dispute. Therefore, any encroachment made by the plaintiff was not the actual controversy between the parties. Therefore, the substantial question of law is answered in the negative. The Appellate Court erred in reversing the decree for perpetual injunction granted in favour of the plaintiff. If defendants admit the very existence of compound wall, then plaintiff is entitled to protection unless the construction of compound wall is held to be in violation of rules and regulations of local act. 14. For the foregoing reasons, I pass the following: ORDER (i) The second appeal is allowed; (ii) The judgment and decree of the Appellate Court passed in R.A.No.267/2006 is set aside. Consequently, the judgment and decree passed by the Trial Court in O.S.No.427/1996 stands restored.