AHMED ALI SAHEB Vs. THAMMANNA GOWDA

JUDGEMENT

(1.) THIS is the defendant ™s Second Appeal against the concurrent findings of facts arrived at by the Courts below. The respondent herein filed suit for declaration that he is the owner of the area BCKL shown in the plaint sketch. He has also sought for declaration that the wall BC is a common wall of both the plaintiff and defendant. The Perpetual Injunction is also sought for restraining the defendant/appellant from interfering with the peaceful possession and enjoyment of the passage/area BCKL for ever. The trial Court as well as the first appellate Court decreed the suit.

(2.) THE case of the plaintiff is that he is the owner of the house shown in the plaint sketch marked as HBCG. The plaintiff originally owning a house shown as AFGH in the rough sketch. Subsequently, he purchased the old house shown as ABCF in the rough sketch from its earlier owner on 12.2.1980. The wall shown as BC is the common wall to the houses ABCF and BCJI i.e. houses of the plaintiff and the defendant. Thereafter the plaintiff demolished the old house and constructed the new house on the very area leaving passage BCKL having width of 3 feet space to go to backyard FCDE shown in the plaint sketch. Thus according to the plaintiff, the defendant has no manner of right, title and interest of possession whatsoever over the suit schedule passage BCKL and the same belongs to the plaintiff exclusively. The case of the defendant is that the grand -father of the defendant and Mr. Alijan (vendor of the plaintiff) purchased 3 ankanas house from one Mohammed Akbar Sab on 4.6.1923; one ankana house means 8 feet in width; that the defendant ™s father and the said Alijan ™s father Khasin Sab were brothers inter se; that the defendant ™s father was given 2 ankanas house i.e. 16 feet in width and Mr. Alijan ™s father was given one ankana house i.e. 8 feet in width. To the east of Alijan ™s house and to the west of AFGH i.e. the house purchased by the plaintiff from Peersab on 4.2.1974 there existed a passage measuring 6 feet for the use of access to the backyard of Alijan and defendant; that right from 1923, the defendant ™s ancestors had no separate access to backyard other than the one mentioned in the sale deed of 1974; that when the plaintiff is intended to demolish the house which was purchased from Mr. Alijan, he has requested the defendant that he would make use of the space lying between Alijan ™s house and the house he purchased from Mr. Peersab to construct a new house and he would leave 3 feet space shown as BCKL for his use as well as for the use of the defendant to approach the backyard for which the defendant agreed; thus the space BCKL has been left for the use of the plaintiff and the defendant; that the documents produced by the plaintiff do not tally with the sale deed dated 4.6.1923; that the rough sketch produced alongwith the plaint does not speak of the reality. The sum and substance of the case of the defendant is that 3 feet width passage lying between the house of the plaintiff and the defendant is a common passage for the plaintiff and the defendant and the plaintiff cannot claim ownership over the said property.

(3.) DURING the course of trial, the plaintiff examined himself as PW -1 and got marked six Exhibits. On behalf of the defendant, two witnesses were examined including the defendant and no document is marked. The Commissioner was appointed and the report of the Commissioner is marked at Ex.C1, sketch prepared by the Commissioner is marked at Ex.C2 and the Mahazar is marked at Ex.C3. As aforementioned, the trial Court decreed the suit. The first appellate Court confirmed the same.