RSA No. 1609 2006 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 21ST DAY OF JUNE, 2012 BEFORE THE HON’BLE DR. JUSTICE K. BHAKTHAVATSALA REGULAR SECOND APPEAL No.1609/2006 (INJ) BETWEEN: MRUNTL NJAYA MALAKAYYA NEELAKANTHMATH SINCE DEAD BY LRS VIJAY NEELAKANTHMATI-i S/C) MRUTYUNJAYYA NEELAKANTHMATH AGED ABOUT 50 YEARS, R/A RABAKAVI TQ: JAMKHANDI, DIST: BAGALKOTE 2 PRAI3HU NEELAKANTIIMATH S/0 MRUTYUNJAYYA NEELAKANTHMATH AGED ABOUT 45 YEARS, R/A NO.32/2B RAMA MESTRI, ADDEY MISHRI KOTI CHAWL CROSS-J. KAPILESHWARI ROAD, BELGAUM SHANTU NEELAKANTH MATH S/C) MRUTYUNJAYYA NEELANANTHMATH AGED ABOUT 44 YEARS, R/A NO32/2B RAMA MESTRI. ADDEY MISHRI KOTI CRAWL CROSSI. KAPILESHWARI ROAD I3ELGACM MALLTKARJUN NEELAKANTHMATH S/C) MRUTYUNJAYYA NEELANANTHMATH AGED ABOUT 42 YEARS. P/A NC).32/2B R\M’ MEPRI ADDEY MISHRI KO’lI CHAWL CRC)SSI. KAPILESH\VARI ROAD. F3ELG-\LNI RSA No. ItO) 7U06 5. PANCHAKSHARI NEELANANTHMATH S/C) MRUTYUNJAYYA NEELARANTI1MATH AGED ABOUT 41 YEARS, R/A N0.32/2B RAMA MESTRI . ADDEY MISI-IRI ROTI CHA\VL CROSS-I. KAP1LESHWARI ROAD. BELO.-\CM 6. SMT.ROOPAW\VA NEELANXNTHMATH / 0 MRUTYUNJAYYA NEELAKANTHMATH AGED ABOUT 70 YEARS, R/A NO.32/2B RM MESTRI NDDE\ MISHRI kOTI CHG\L CROSS-I, KAPILESHWARI ROAD BELGAUM-590 010 7. SMT.KAMPLAKSHI SUMA RARKASAGI W/O CHANDRAKANTH RAKKASAGI AGED ABOUT 35 YEARS. RjA KAMTGI. TQ: HUNAGUND. DIST: BPCALkOTE APPELLANTS 2 To 7 ARE REPRESENTED BY THEIR POWER OF A’VFORNEY HOLDER SRI.VIJAY VIJAYNAND S/O MRUTHYUNJAYYA NEELAKANTHMATI-I, APPELLANT NO, 1 ... APPELLANTS (BY SRLMRUTHYUNJAY TATA BANGI AND SMT.SHASHIKALA M.BANGI, ADV.) AND: I. THE RABAKAVI BANAHAYI’I CITY MUNICIPAL CC)I NCIL RAMPUR. BANHiVVFI, TQ: JAMKHANDI DIST: BAGALKOTE REP BY ITS COMMISSIONER MAHALINGAPPA S/O VEERAPPA MURTELI SINCE DEAD BY LRs 2. SUMITRP 1 MURTELI W/ 0 MAHAL1NGAPPA MURTELI AGED ABOUT 80 YEARS, R/A RABAKAVI JAMKHANDI, DIST: BAGALKOTE c trth4- c- U q1J)L /. SMT.LEELA\ All MIRJI - ‘ \\ U HI’ PL1 RAPP \1IR 11 RSA No.1609,2006 e 3 ‘4. I AGED ABOUT 70 YEARS NO.744/A, ASHOK NAGAR, KITI’UR CHANNAMMA CIRCLE, NIPPANI DIST: BELGAUM 3. BHAGIRVFHI KAMATGI W/O VEERUPAXAPPA KAMATGI AGED ABOUT 50 YEARS BASAV SADAN. 8Th NAVARANG ROAD, THAKUR DWAR, MLJMBAI-400 002. 5. VEERANNA MURTEU S/O MAHALINGAPPA MURTELI DEAD BY LRs 5a. SMT.SHAKUNTALA VEERANNA MURTELI, AGED ABOUT 59 YEARS Sb. SRI.RAJU VEERANNA MURTELI, AGED ABOUT 35 YEARS, BOTH R/AT JYOTIRLING HOUSING CO-SOCIETY, BEHIND SHAHAPURI POLICE STATION. KOLHAPUR. 6. BASAVARAJ MURTELI S/O MAHALINGAPPA MURflLI AGED ABOUT 60 YEARS NO.75, DANESHWARI NILAYA, CHALUKYA NAGAR, SOLAPUR ROAD, BIJAPUR-586 101. 7. SHANKAR MURTELI S/O MAHAUNGAPPA MURTELI AGED ABOUT 63 YEARS R/A RABAKAVI TQ: JAMKHANDI-587 301 DIST: BAGALKOTE 8. ANNAPPA MURTELI S/O MAHALINGAPPA MURTELI AGED ABOUT 60 YEARS R/A NEAR ROOBY HOSPITAL STATION ROAD, PINE 9. SMT.SHANTA OUNAKI W/O SUBHASH GUNAKI AGED ABOUT 55 YEARS R/A RAMPUR, TQ: JAMKHANDI RSA No 6(0) ./000 .4 DIST: BAGALKOTE 10. CHANDRAKANT MURTELI S/C MAHALINGAPPA MURTELI AGED ABOUT 50 YEARS R/A RABAKAVI. TQ: JAMKHANDI D1ST: BAGALKUTE. RESPONDENTS (BY SRI.A.R.HOLLA, ADV FOR Ri, SRI.RAVI S.BALIKAI, ADV. FOR R7, R9, RiO) THIS APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.03.2006 PASSED IN R.A.NO.10/2001 ON THE FILE OF THE SESSIONS JUDGE AND PRESIDING OFFICER. PAST TRACK COURT. JAMAKHANDI, ALLOWING THE APPEAL AND SE11’ING ASiDE THE JUDGMENT AND DECREE DATED 08.12.2000 PASSED IN OS NO 26/1q96 ON THE FILE OF THE CI\IL J DuE JR DN BANAHA1TI, THIS APPEAL COMING ON FOR ADMISSION, THIS DAY. THE COURT DELIVERED THE FOLLOWING: JUDGMENT 1. This is an appeal filed under Section 100 of the Code of Civil Procedure challenging the judgment and decree dated 18.03.2006 made in R.A.No.l0/2001 on the file of the Sessions Judge and Presiding Officer, Fast Track Court, Jamkhandi. 2. For the purpose of convenience and better understanding. the appellants and the respondents are RS.\ N. (( ) UU( N hereinafter referred to as plaintiffs and defendants as arraigned in the suit. 3. The brief facts of the case leading to the filing of the appeal may be stated as under: The plaintiff filed a suit in O.S.No.26/ 1996 on the file of the Civil dudge (dr.Dn.), Banahatti, for a mandatory injunction against the defendants contending that he is the owner of the house property hearing No.TMC No.9 1 5. Division No.IV of RabkaviBanhatti (now numbered as CTS Nos.1874, 1884, 1885 and 1886); open space towards west of plaintiff’s house belongs to Municipalit\ and the 1st defendant has a peepal tree touching the western wall of the plaintiff’s house; the tree is old and branches of the tree are leaning towards the plaintiff’s house; roots penetrate below the house of the plaintiff and the western wail of the plaintiff is damaged and likely to collapse. Hence. the plaintiff filed a suit for mandatory injunction for removal of the peepal tree. Defendant No. 1 filed a L \ “.u. I nu (()( 6 written statement denying the averments of the plaint as to the alleged damage to the wall etc.. and prayed for dismissal of the suit, Defendant No.2 also filed v ritten statement denying the averments of the plaint with regard to the grounds urged for mandatory injunction. The trial Court framed the necessary issues. In support of the case of the plaintiff, he got himself examined as PW I besides examining Shankar and Kallappa as PWs-2 and 3 and got marked Exs.P. 1 to 2 1. In support of the ease of defendant No.1- CMC, Rampur, its Inspector was examined as DW 1: son of defendant No.2 was examined as DW-2 and one Holeppa s/o Kallappa Arakeri was examined as DW 3 and got marked photographs and other documents as Ex.D. I to Ex.D.5. The trial Court after hearing the argunients and perusing the oral and documentary evidence on record directed the defendants jointly and severally to remove the peeple tree touching the estern wall of the plaintiff’s house. Feeling aggrieved by i he udgrn ent and decree of the trial court, the 2 defendant filed p’aI Ifl RS \ No 6O) NiOo RANolO/2OO1. The first appellate court after servke of notice on the respondents to the appeal and after hearing the arguments, perusing the trial court records came to a conclusion that the trial court erred in decreeing the suit. Consequently, allowed the appeal and set aside the judgment and decree of the trial court. This is impugned in this appeal. 4 Learned counsel for the appellants who are the legal representatives of the original plaintiff, submits that there are number of litigations between the appellants and the defendants and there is likelihood of amicable settlement. With regard to the merits of the appeal, he submits that on account of the tree situated in the western side of the house of the plaintiff, the entire house is being damaged and cracks have developed and the trial court on appreciation of evidence decreed the suit but the appellate court erred in setting aside the judgment and decree of the trial court and there is a di\ergent finding. He submits 1 t’OQ 2O(’ S wises for questO” 1 of law that the ç 0 og subStait9i was justified cnsidertOhl appettate court tt Wh.ether the loufl concwSio7L ma’) in comi o a dlffelthtt beifl9 VCZhL 1 rec.Wnttt to b the trial court with0’ nterf with the findih’9 5 ofthe picJ cort” appellate court Ott of 5. view, the record and the Pbot0c1 caine the evide the old peeple tree as can be seen to a that s it is in eidstttt for 4denof both the pafti eat 5 the fromthfl more tha” j50 to 200 yeatS and for all these v either to the proPe or not cause’I anY damMe de in the plaint holds no ma further obsefl’ that the wthC life nd the me apP court has pee tree has caused vat provV 1 that plaU’ has not vestem 1l or to the root. first aince the ailS datflfle to obS’1 that çuther 5 fust roufl’1 of ljtigatiott vhiC’’ ‘a plah1tlOS t hi totWs coU and suffered a deC 1 qgO and I Rs: No.1609 2006 4. • mandatory injunction was granted against the plaintiff and while executing the decree, the window which was opened in the said disputed wall was got closed by the 2 defendant/neighbour of the plaintiff and in order to take revenge against defendant No.2, the plaintiff filed a suit on the basis of reckless allegations. Therefore. the first appellate court reached the conclusion that the trial court erred in decreeing the suit and set aside the judgment and decree of the trial court. In, my view, no substantial question of law arises for consideration in this appeal and there is no illegality or infirmity in the impugned order. 6. In the result. the appeal fails and the same is hereby dismissed directing the parties to bear their own costs. V Sd/a JUDGE Jm/ HBJ: 26M72O13 RSA.No.1609/2006 Perused the office note. Office is directed to incorporate the following after respondent No2 in the cause-title to the judgment. “Since deceased, R6 to R8 and RiO are treated as LR’s (yb. dated 14.32012)” ] f. Bss.