B R KAVETTI RANGAPPA Vs. D R MUNIYANNA

JUDGEMENT

(1.) THIS regular second appeal is preferred by the appellants who were respondents before the first appellate Court being aggrieved by the judgment and decree dated 22.11.2003 passed by the VI Addl. City Civil Judge, Bangalore in R.A.No.1/1983 in partly allowing the appeal and modifying the judgment and decree dated 4.1.1977 passed by the III Addl. I Munsiff, Bangalore in O.S.No.337/1962. The appellants herein are the legal representatives of the original defendant and respondents are the legal representatives of the original plaintiff in O.S.No.337/1962 before the trial Court. Plaintiff filed the suit for the relief of declaration of title to the suit schedule property and also seeking permanent injunction and mandatory injunction against the defendants.

(2.) THE brief facts of the plaintiff's case is that, he is the purchaser of the suit schedule property A,B,C,D,E,F,G,H shown in the plaint sketch relating to premises bearing old No.196 and present Nos.248, 249 and 250, Sultanpet, Bangalore city. Plaintiff has purchased the said property in a court auction held in 1929 and since then, he is the owner of the said property and has been enjoying it as such. The defendant in the said suit is the owner of the premises No.251 (old No.169) adjoining the plaintiff's above mentioned property. Defendant has only a right of way over the suit property to a limited extent. Defendant's property was a school and suit property so far as defendant is concerned is subject to only to the dominant right of ordinary passage to and from his premises. The property purchased by the plaintiff and defendant's property belongs to same persons and the defendant's predecessor -in -title one Sri.B.Ramanna. Advocate has attested the sale deed dated 15.7.1916 in favour of one Channappa from whom the plaintiff has derived his title to the property in question. Defendant has no right to raise any construction or to encroach on the said property in any manner. It is also alleged that defendant is preparing to put up a projection into the suit property at a height of about 8 -9ft. If it is allowed, it will be an encroachment over the property of the plaintiff. Defendant is also preparing to put up a pavement in front of his building as the suit space and he has no right to do so. Defendant has opened three doors in place of one which existed all through and has constructed 15 go downs in his premises in spite of warning given by the plaintiff and he wanted to make use of the suit property for movement of goods to and from his go downs through and over the suit property by means of heavy vehicles. It is in excess of the right of defendant to use the passage. Defendant has no right to open more than one door towards the suit property. It is also alleged that since the institution of the suit and just after the Courts were closed for the vacation defendant put up heaps of mud on the suit land and raised the level of the space in front of his building by more than two feet and sloped it towards the west and north of the suit land with a result that the rain water flowing formerly from the plaintiff's house is obstructed and it collects and stagnates in the front portico of the plaintiff's house. So the defendant is now discharging dirty water from his building into the suit land making it insanitary and filthy. By making the amendment application, plaintiff has sought for declaration of title to the suit schedule property that he is the owner in possession; for permanent injunction to restrain the defendant from putting up projection to the suit property or putting up pavements; for permanent injunction against the defendant from making use of the suit property for movement of heavy vehicles and fixing of new doors towards the suit space; for mandatory injunction to remove the projections and pavements if put up and also to close all but one door towards the suit schedule property and also to permanently restrain the defendant from discharging the rain water falling on the suit land from his building.

(3.) THE original defendant has filed his written statement denying the averments made in the plaint that the plaintiff purchased the space shown in A,B,C,D,E,F,G,H along with the suit schedule property. It is pleaded that plaintiff has made false averment that he has been in possession and enjoyment of the said area. The allegations made in plaint paragraphs 3 to 7 are also denied and contended as false averments. It is further pleaded that defendant is the owner of the premises bearing No.251 and in front of the said building towards the north there is an open space belonging to the defendant measuring 4 ft. on the west, 37 1/2 ft. on the east and the total length connecting the two from east to west being 62 1/4 feet in the north and 66 1/2 ft. on the other side towards the south. Beyond that there is a open space on the northern side, north western side and that open space are meant for common passage of the plaintiff and defendant and they have got equal privilege to use the same for their right of way. So far as the land from the Sultanpet is concerned that land belongs to the defendant and plaintiff has only a right of passage from there. Therefore, it is meaningless to say that this defendant has got only easementary right of way from Sultanpet to the lane. Defendant is entitled to make use of the land in any way he likes and wants. In fact from number of years the passage from Sultanpet is being used both by the plaintiff as well as by the defendant for transporting goods by lorries and carts. Plaintiff himself and his tenants are making use of the land to carry goods by carts and heavy lorries. On the other hand, plaintiff and his tenants are trespassing on the land in front of defendant's premises giving trouble and annoyance. There is no cause of action. Plaintiff's claim for declaration is neither true nor bonafide and he is not entitled to the relief of declaration and the claim for declaration is also barred by time. Hence, he has sought to dismiss the suit. On the basis of the said pleadings the trial Court has framed the following issues and additional issues: