TKRISHNASWAMI RAO Vs. DUNDAPPA

JUDGEMENT

(1.) This is the defendants' Second Appeal Plaintiff respondent filed a suit for mandatory injunction for closing the windows O and P marked in the plaint plan. He contended that there was a wall between the house of the plaintiff and the defendants and that wall marked ABCD in the plan produced along with the plaint was a common wall and, therefore, defendants should not have raised the same or put up windows or ventilators in the upstairs portion. Defendants, on the other hand, contend that the disputed wall ABCD is not a common wall as alleged by the plaintiff but it is their execution wall. Therefore they were entitled to build on that wall up to any height. They are also entitled to put up the window and ventilator in their own wall. The learned District Munsiff, Bellary, who tried this case, dismissed the plaintiff's suit but the learned District Judge Bellary upheld the plaintiff's contention and granted him a decree as prayed for. He ordered that the defendants have no right to put up the windows O and P or to interfere with the plaintiff's half right to the common wall ABCD and issued a mandatory injunction to remove the windows O and P as shown in the plan. Defendants have preferred an appeal against the said judgment and decree .

(2.) The important point therefore that arises in this appeal is whether the wall ABCD is the common wall as alleged by the plaintiff respondent or is the exclusive wall of the defendant as contended by them. If it is held that this is the exclusive wall, then they are entitled to build on it and also to open windows or ventilators as well. When the plaintiff comes up with the case that it is a common wall, naturally in the first instance the burden of proof is heavy on him to prove that allegation. In support of his contention two documents have been produced in this case, Exhibit A-2 is a sale deed dated 19.10.1929 executed in favour of P.W.1 Rangamma, the predecessor-in-title of the plaintiff, Exhibit A-1 is the subsequent sale deed dated 17.7.1946 executed by the said Rangamma in favour of the plaintiff. Plaintiff, in his evidence, admits that there is nothing stated in the said sale deeds that the disputed wall is a party or common wall. He also states that he did not make any inquires about this suit wall, neither does he know who built the disputed wall. Therefore it is abundantly clear that the plaintiff has failed to establish that the wall in dispute is the common wall and if he falls to do so, it follows as a corollary that he has no right to object to the opening of the windows or the ventilators on the side of the wall as done by the defendant.

(3.) P.W. 1, the vendor of the plaintiff is examined in the date. On the material point she does not support the plaintiff's case. She states that the disputed wall had already been built when the purchased the house - the very house to which the plaintiff now lays claim, she also states that Seshagiri Rao, the husband of defendant 6, might have built the disputed wall. There is further a significant statement made by her to the effect that when she wanted to put suffers in this wall viz., ABCD and sought the permission of Seshagiri Rao, he objected to the same. Therefore, she says she put a parallel beam and rested the rafters on it. This statement gives up the whole case of the plaintiff. On the side of the defendants, the important witness that has been examined is D.W. 2 Nagamma, widow of Seshagiri Rao. According to her evidence defendants' house was built by her husband Seshagiri Rao about 30 years ago and they built the upper story 15 years ago. She also states that P.W. 1 Rangamma, the predecessor of the plaintiff asked for permission to put the beams in the wall and that her husband refused the same. It is needless to refer to the evidence of the neighbour who is examined as D.W. 1 in the case under the circumstances . The evidence discussed above loads to the conclusion that the wall in dispute viz. ABCD is not a common wall but the exclusion wall of the defendants and if that is so, it also follows, that the defendants can build upon the said wall and open windows and ventilators.