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2025 DAILYLAW 54057 (KAR)

S K SANJEEVAMURTHY v. SMT AZMA S J

RSA/1425/2016 · 2025-08-12

E S Indiresh

body2025

Judgment text

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- 1 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1425 OF 2016 (INJ) BETWEEN: 1. 1(a). 1(b). 1(c). 1(d). S.K. SANJEEVAMURTHY SINCE DECEASED REP. BY LRS. SMT.RATHNAMMA W/O LATE S.K. SANJEEVAMURTHY AGED ABOUT 79 YEARS, R/AT SANJEEVMURTHY GALLI B.H. ROAD CROSS, GOURIBIDANUR CHIKKABALLAPUR DISTRICT -561208. SRI. S.S. RADHAKRISHNA S/O LATE S.K SANJEEVAMURTHY AGED ABOUT 53 YEARS R/AT NO.576, 11TH MAIN 5TH BLOCK, JAYANAGARA BENGALURU - 560041. SMT. SUSHEELAMMA D/O LATE S.K. SANJEEVAMURTHY AGED ABOUT 56 YEARS, R/AT SANJEEVMURTHY GALLI B.H. ROAD CROSS, GOURIBIDANUR CHIKKABALLAPUR DISTRICT -561208. SMT. S.S. VASANTHI D/O LATE S.K. SANJEEVAMURTHY AGED ABOUT 50 YEARS, R/AT SANJEEVMURTHY GALLI B.H. ROAD CROSS, Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 GOURIBIDANUR CHIKKABALLAPUR DISTRICT -561208. …APPELLANTS (BY SRI. RAHUL S. REDDY, ADVOCATE FOR R1(a) TO R1(d)) AND: 1. SMT. AZMA S J D/O LATE ABDUL JABBAR AGED ABOUT 36 YEARS, R/AT B.H. ROAD CROSS, OPP. KASABA LSOCIETY, GOWRIBIDANUR TOWN, GOWRIBIDANUR-561208. …RESPONDENT (BY SRI. ADITYA BHAT, ADVOCATE FOR SRI. G.S. BHAT, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 01.04.2016 PASSED IN R.A.NO.176/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., GOWRIBIDANUR. ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 26.08.2013 PASSED IN OS.NO.277/2010 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC., GOWRIBIDANUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 ORAL JUDGMENT 1. This Regular Second Appeal is filed by the plaintiff challenging the judgment and decree dated 01.04.2016 passed in RA No.176 of 2013 on the file of the Senior Civil Judge and JMFC, Gouribidanur, allowing the appeal and setting aside the judgment and decree dated 26.08.2013 passed in OS.No.277 of 2010 on the file of the Principal Civil Judge and JMFC, Gouridbidanur, decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The plaintiff averred in the plaint that the suit schedule property is the joint family property of late Sendi Kasavaiah, who is the plaintiff's father. The said property fell to the share of the plaintiff under a registered partition deed dated 03.09.1971. It is the - 4 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 plaintiff's case that the defendant had purchased property located to the west of the plaintiff’s property from the sister of the plaintiff and constructed a building. The plaintiff claims that the defendant has no right over the suit schedule property and is attempting to encroach upon the same, particularly the five feet of land earmarked in the partition deed for ventilation and access. Consequently, the plaintiff filed O.S. No. 277 of 2010 seeking a decree of permanent injunction against the defendant 4. Upon service of summons, the defendant entered appearance and filed a written statement denying the averments in the plaint. The defendant contended that he had purchased the property situated on the western side of the suit schedule property under a registered sale deed dated 08.12.2008. He further stated that he constructed the building after obtaining - 5 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 necessary permission from the municipality and as such, sought dismissal of the suit. 5. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 6. In support of the case, the plaintiff examined three witnesses as PW1 to PW3 and produced three documents, marked as Exhibits P1 to P3. The defendant examined himself as DW1 and produced five documents, marked as Exhibits D1 to D5. 7. Upon appreciation of the evidence on record, the Trial Court, by judgment and decree dated 26.08.2013, decreed the suit in favour of the plaintiff. Aggrieved by this judgment, the defendant preferred a Regular Appeal in R.A. No. 176 of 2013 before the Senior Civil Judge and JMFC, Gouribidanur. The plaintiff contested the appeal. The First Appellate Court, after re-appreciating the evidence on record, - 6 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 allowed the appeal by judgment and decree dated 01.04.2016 and set aside the judgment and decree passed by the Trial Court in O.S. No. 277 of 2010. Being aggrieved by the same, the plaintiff has preferred this Regular Second Appeal under Section 100 of the Code of Civil Procedure. 8. I have heard Sri. Rahul S. Reddy, learned counsel for the appellants and Sri. Aditya Bhat, learned counsel appearing for learned counsel Sri. G.S. Bhat for the respondent. 9. Sri. Rahul S. Reddy, learned counsel for the appellant submitted that, the plaintiff had acquired the suit schedule properties as per the Partition Deed dated 03.09.1971 and as per the said registered Partition deed five feet road (Sandhu) was kept vacant for the purpose of free access to air and light. It is further argued that the defendant had constructed the - 7 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 building towards the western side of the suit schedule property and trying to encroach the five feet which has been earmarked for aforementioned purpose and the said aspect of the matter was properly appreciated by the Trial Court, however, the First Appellate Court while re-appreciating the material on record misconstrued the schedule mentioned in the registered Partition Deed dated 03.09.1971 and therefore, sought for interference of this court. 10. Per contra, Sri. Aditya Bhat, learned counsel for the respondent submitted that the defendant purchased the property to the west of the plaintiff’s land under a registered sale deed dated 08.12.2008. He contended that the five feet wide strip, as claimed by the plaintiff, was left untouched by the defendant during construction. Hence, there is no encroachment, and as such argued that, the appeal deserves to be dismissed. - 8 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 11. In the light of the submission made by the learned counsel appearing for parties, I have carefully examined the records. It is not in dispute that the plaintiff acquired the suit property under a registered partition deed dated 03.09.1971. The said deed specifically provides that five feet on the western side shall be left vacant for the purpose of access to air and light. It is also undisputed that this five-feet strip lies between the plaintiff’s property and the property later purchased by the defendant from the plaintiff’s sister. It is to be noted that the five feet which has been left towards the western side of the suit schedule property is to be utilized by both the appellant as well as the vendor of the defendant. It is also not in dispute that towards the western side of the suit schedule property, i.e. after five feet, which has been earmarked for the purpose of air and light, is belong to the sister of the plaintiff and thereafter, the - 9 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 defendant had purchased the same. In that view of the matter, I have carefully examined finding recorded by the Trial Court on Issue Nos.1 and 2. Taking into consideration the oral evidence adduced by the parties, the five feet of the disputed land situate towards western side of the suit schedule property is exclusively belonging to the plaintiff and defendant for the purpose of air and light and also for the purpose of ingress and egress. In that view of the matter, the Trial Court committed an error in arriving at a conclusion, solely relying upon Exhibit P3-Blue Print relating to the property of the defendant, however, has not appreciated the schedule mentioned in Exhibit P1. In that view of the matter, the First Appellate Court has rectified the same by reversing the judgment and decree passed by the Trial Court after re-appreciating the evidence on record as per Order XLI Rule 31 of CPC. It is also to be noted from the - 10 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 cross-examination of PW1 that, PW1 has deposed that PW1 has constructed the building to the entire extent of the suit schedule property and claiming, 5x41 for the purpose of access to air and light and it is also not in dispute that after the said 'Sandhu', the property belonging to the defendant is situated. In that view of the matter, re-appreciation of the evidence by the First Appellate Court is just and proper and in accordance with the judgment of the Hon'ble Supreme Court Santosh Hazari Vs. Purushottam Tiwari (D) by LR's reported in AIR 2001 SC 965. Therefore, the appellants have not made out a case for interference in this appeal. 12. Therefore, I do not find material irregularity or perversity in the judgment of the First Appellate Court. Since, the plaintiff/appellants have not made out grounds for formulation of substantial question of - 11 - HC-KAR NC: 2025:KHC:31151 RSA No. 1425 of 2016 law as required under Section 100 of Code of Civil Procedure, this appeal is liable to be dismissed at the Admission stage itself, accordingly, Regular Second Appeal is dismissed. 13. However, in view of the conflicting findings by the Trial Court and the First Appellate Court, it is clarified that both the plaintiff and the defendant shall have the right to utilize the five feet wide strip (measuring 5' x 41') for the purposes of access to air, and light and for ingress and egress, without interference from either party. SD/- (E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 31