Judgment:
(Prayer: RSA Filed U/S 100 CPC Against The Judgment And Decree Dated:12.9.2005 Passed In Ra.No. 55/1997 On The File Of The Addl.Civil Judge (Sr.Dn.), Kolar, Partly Allowing The Appeal And Confirming And Setting Aside The Judgment And Decree Dated:25.2.1997 Passed In Os.No.229/1984 On The File Of The Addl.Munsiff, Kolar.)
1. This is an appeal under Section 100, C.P.C. filed by the plaintiff in an original suit in O.S.229/84 which was pending on the file of Additional Munsiff, Kolar. Plaintiff is aggrieved by the divergent judgment passed in R.A.55/97 which was pending on the file of Additional Civil Judge (Senior Divn.), Kolar, insofar as it relates the relief of rejection of his prayer for declaration of title and also for permanent injunction against the defendant in respect of the suit schedule property.
2. The respondents are defendants in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking before the trial court.
3. The original plaintiff-A.S.Subbaiah Shetty chose to file suit for the relief of declaration of title and mandatory injunction against the defendant- Nanjundappa in O.S.229/84. During the pendency of the suit, Subbaiah Shetty died and his legal heirs were brought on record. The relief of declaration and mandatory injunction sought in respect of the schedule property as stated in the schedule appended to the plaint is stated to be an open space in between the houses of the plaintiff and defendant situated in Kataripalya, Main Road, Kolar Town4, bearing Municipal Katha No.1231, bearing Door No.1650 bounded on the east by the vacant space of Dhobi Nanjappa and house of defendant in South-West Corner, West by residence of the plaintiff, North by road of Venkataramanaswamy Temply and south by Portion of the defendant's house.
4. The suit so filed in O.S.229/84 was contested by the deceased defendant. On the basis of the above pleadings, the following issues were framed for consideration by the trial court:
1. Whether plaintiff proves that he is the owner in possession and enjoyment of the suit schedule property?
2. Whether plaintiff further proves that the defendant attempted to trespass in the suit schedule property and has fixed stone slabs about 7 years ago preventing him to have access to his backyard and house as alleged?
3. Whether defendant proves that he has perfected his title over the suit schedule property by way of adverse possession?
4. Whether defendant further proves that the suit of the plaintiff is barred by principles of resjudicata?
5. Whether cause of action has arisen to the plaintiff to file this suit?
6. What decree or order?
On behalf of the plaintiff, Ramachandra has been examined as PW1 and 14 documents have been got marked. Nanjundappa was examined as DW1. Ultimately the suit came to be dismissed after contest answering issue nos.1 to 4 in the negative.
5. Being aggrieved by the dismissal of suit on merits, plaintiff chose to file an appeal under Section 96, C.P.C. before the court of Civil Judge (Senior Divn.), Kolar, and was numbered as R.A.55/97. The learned judge has allowed the regular appeal in part, affirming rejection of the relief of rejection of declaration of title but has granted mandatory injunction against the defendants, directing them to remove the stone slabs and permitting the plaintiff and defendants to use the suit schedule property. It is this partial decree which is called in question in this appeal on various grounds as set out in the appeal memo.
6. This appeal has been admitted to consider the following substantial question of law framed on 10.1.2007:
"Whether the lower appellate court was justified in interpreting the word 'Hithalu' in Ex.P1, the sale deed as 'conservancy' and in declining to grant the decree of declaration?"
Even the defendants had been aggrieved by the partial decree passed against them insofar as it relates to grant of relief of mandatory injunction and permitting the plaintiff also to use the suit schedule property. They had chosen to file R.S.A.2601/05 which came to be dismissed at the stage of admission itself on 22.12.2005.
7. During the pendency of this appeal, the appellants have filed an application under Order VI Rule 17, C.P.C. with a request to grant permission to amend the plaint to include further relief of mandatory injunction against the defendants in order to direct them to remove the staircase put up to their house. The said application has been objected to by filing written statement.
8. Learned counsel for both the parties have submitted arguments at length.
9. After going through the records and hearing arguments, the following additional point arises for consideration in view of the application filed under Order VI Rule 17, C.P.C:
Whether it is just and necessary to allow the application filed by the appellants under Order VI Rule 17, C.P.C. for the purpose of amending the plaint to invoke further prayer of mandatory injunction relating to staircase stated to have been put up by the defendants to their house in the suit schedule property?
The substantial question of law and the point now framed for consideration are inter-related and hence they are taken up together for common discussion.
10. Learned counsel for the appellants have submitted their arguments both on merits as well as on the interlocutory application. Emphasis is laid on the contents of Ex.P1-sale deed by the learned counsel for the appellants-plaintiffs to contend that the suit schedule property is a part and parcel of the property purchased by his senior uncle in the year 1900 vide Ex.P1. This aspect of the matter has been well dealt at length by the trial court as well as the first appellate court.
11. Ex.P1-sale deed dated 6.9.1900 has been relied upon to contend that the schedule property is part and parcel of the property when it was purchased by his ancestors. Therefore it is necessary to look into the contents of Ex.P1 cautiously in order to know whether they had really acquired title over the suit schedule property. This sale deed was executed by Dobi Subba in favour of Ramaiah, senior uncle of the original plaintiff. On going through the contents of Ex.P1, it is evident that Ramaiah purchased a mud roofed house bearing Municipal katha No.2439 situated in Kumbarpet, Kolar Town, bounded on the East by Dobi Nanjappa's backyard, West by Doddapet-Katripalya Nanjappa Road, North road and South Aktha Hasan Sab house with backyard. Though it is mentioned in Ex.P1 that the senior uncle-Ramaiah purchased the mud roofed house and also backyard, as rightly pointed out by the trial court and first appellate court, the entire contents of Ex.P1 is silent about the description of the backyard over which the plaintiffs have sought the relief of declaration of title and mandatory injunction. Nothing is mentioned in Ex.P1 about the dimension and exact location. On the other hand, in Ex.P1, there is no reference about the existence of the so-called backyard and in the absence of clear reference about the exact location with reference to dimension; the appellate court has found it difficult to accept the stand of the plaintiff that the backyard is the same area as the suit schedule property.
12. Plaintiffs have further relied on Ex.P2, copy of the partition deed dated 25.8.1947 executed between the sons of Dobi Subanna. A very plain reading of Ex.P2 shows that one of the items came to be divided between the sons of Subbaiah Shetty and the western boundary is shown as backyard of Alambadi Seetharamaiah. Based on this, learned counsel for the plaintiffs-appellants has vehemently argued that the suit schedule property now claimed by the plaintiffs is the same that has been shown as Alambadi Seetharamaiah's property in Ex.P2.
13. Admittedly there is no clear description about the so-called backyard belonging to Alambadi Seetharamaiah. The exact backyard and its dimension is not mentioned either in Ex.P1 or Ex.P2. Such being the case, mere stray reference in Ex.P2 cannot be taken advantage of by the plaintiffs to prove their title. On assessing the oral and documentary evidence on record, the first appellate court has come to the conclusion that even the defendants have not made out a case of clear title in respect of the schedule property.
14. Plaintiffs have relied upon Ex.P8-rough sketch and other documents to prove their title and possession over the suit schedule property. In fact, a Commissioner had been appointed by the trial court to visit the spot and submit a report. The court commissioner has submitted a report as well as a sketch and the same has not been objected to by either of the parties. Therefore it has become evidence under Rule XXVI Rule 10(2), C.P.C. The contents of the sketch prepared by the court commissioner would depict the hard reality that existed on the date of filing the suit.
15. PW-1 has deposed that lavatory pipes from his house are laid underneath the suit schedule property and it is connected to the northern side. During the course of cross-examination, it is suggested to him that the defendants have also laid pipes in the suit schedule property so as to allow waste to pass through. A suggestion put to PW-1 on behalf of the defendant would clearly indicate that the defendants have not disputed the lavatory pipes underneath the suit schedule property. The eastern wall of the plaintiffs' house and the western wall of the defendants' house are facing the open space situated in between these two houses.
16. Of course the open space is not uniform in measurement from one end to the other, but the same cannot be a ground to hold that it is not a conservancy. The open space is virtually a conservancy used by plaintiffs as well as the defendants and not as a backyard, as contended by the plaintiffs. Therefore the first appellate court has made a detailed discussion holding that both parties are in need of this particular area to carry out repairs to the walls and also to carry on repairs to the underground lavatory pipes.
17. The reality is that the space as shown in the schedule does not exist as backyard, but it is a small conservancy which is beneficial both to the plaintiffs as well as the defendants and that space is required for both of them to repair their respective houses facing this conservancy.
18. Instead of throwing the entire case of the plaintiff on technicalities of pleading, the learned judge has moulded the relief so as to enable both the parties to make use of their small space, that too, on the basis of the report of the Commissioner which has remained unchallenged.
19. In fact, the appellate court has moulded the relief on the basis of hard realities and it is a well considered judgment. The defendants have been directed to remove the stone slabs put therein.
19. As discussed earlier, the defendants had filed an appeal before this court in R.S.A.2601/05 being aggrieved by the partial decree passed in R.A.55/97 dated 12.9.2005. The said appeal came to be dismissed at the stage of admission. This court has made a detailed discussion about the approach adopted by the first appellate court while disposing of the appeal and has held that the commissioner's report is an important piece of evidence since it has not been objected to by the parties. Reference is made to some admissions elicited from the mouth of PW1 regarding laying of lavatory pipes by both the parties underneath the suit schedule property. It is further held that both the parties can make use of this small strip so as to carry out repairs to the latrine pipes as also the walls of their houses facing the conservancy.
20. In fact the trial court had failed to consider the report of the commissioner in right perspective and that report has been considered by the first appellate court so as to do justice to both the parties. In fact the first appellate court has specifically held that the trial court was not justified in dismissing the entire suit. The order passed in R.S.A.2601/05, though at the stage of admission, is a well considered order and has a great bearing on the present appeal also.
21. The report of the commissioner has falsified the very case set up by the plaintiffs because plaintiffs' case is that the suit schedule property is part and parcel of the backyard purchased under Ex.P1. But the commissioner, on visiting the spot, has found that the suit schedule property is nothing but a small piece of vacant space lying in between the houses of the plaintiffs and defendants measuring 0.08 mts. in width and 1.04 mts. in length. Thus the first appellate court has re-assessed the entire oral and documentary evidence in right perspective. It has taken into consideration the usefulness of this piece of space to both the parties and has moulded the relief. No fault could be found with the approach adopted by the first appellate court.
22. The application filed under Order VI Rule 17, C.P.C. on 20.8.2013 is to include the words 'along with the staircase and chajja' to be added in paragraph 3 of the prayer. The said application is supported by the affidavit sworn to by Ramachandra. What is sworn to by him is that during the pendency of the proceedings, the defendants have put up construction in their backyard/open space leading to the terrace and also chajja protruding into the open space. According to him, the said construction has been made with ulterior motive to defeat the case of the plaintiff and the decree. According to the plaintiffs, defendants cannot put up any structure or staircase along with the stone slabs which are to be removed.
23. Detailed objections have been filed to this application. The entire contents of the application filed under Order VI Rule 17, C.P.C. have been emphatically denied. Defendant-Amaravathi has sworn to that the earlier suit filed in O.S.218/1977 against Nanjundappa in respect of the same property for the relief of permanent injunction was dismissed and the regular appeal in R.A. 27/82 was also dismissed on 30.9.1983. As rightly contended by the learned counsel for the defendants, plaintiffs have filed objection regarding the alleged illegal construction leading to the terrace and also chajja protruding. Taking into consideration the width of the open space lying in between the houses of the plaintiffs and defendants, no construction could be made and it is admitted that it is actually still open.
24. The defendants have specifically stated that the staircase was constructed in the year 1999. The suit was filed in the year 1984 and it was dismissed in the year 1997. The plaintiffs have thoroughly failed to prove their title to the property in question and the very property described is vague and it is not identifiable with reference to the contents of Ex.P1. Anyhow the second appeal, R.S.A.2601/05 has already been dismissed and they will have to remove the existing stone slabs put in the schedule property, and they are bound to do so. Thirteen years after the alleged construction of the chajja, the present application has been filed and this virtually amounts to introducing a new case. In the peculiar facts and circumstances of the case, I find no merits to allow the application. Accordingly it is liable to be dismissed.
25. The approach adopted by the first appellate court is quite proper and correct. It has properly re-assessed the entire evidence on the broad preponderance of probabilities and has properly moulded the relief. Accordingly the substantial question of law is answered in the affirmative and the appeal is also liable to be dismissed.
26. In the result, the following order is passed:
ORDER
The appeal filed under Section 100, C.P.C. challenging the divergent judgment in R.A.55/97 is dismissed. Consequently the application filed under Order VI Rule 17, C.P.C. is also dismissed.
Parties to bear their own costs.