I IN TIlE [II(;[I COt RF OF KARNATAKA CIRCUIT IIENCII AT DHARVA1) DATFI) THIS TIlE 5’” DAY OF APRIL. 2011 PRSENT THE IION’IILE Mr. JI STICE K.L. MANJUNATH ANI) THE [ION’HLE Mr. iUSTICE H.N. NAGAMOIIAN DAS R.F.A No. 206212005 CIv. R.F.A. No. 309/2006 RI A. No. 2062 2005 BE! \\ lIN: P1 l( ){ NIX SC! 1(X)! BY I IS CIIAIR\IAN NiIIIU. N;\GAR BE! ( ii\t Ni. 2, \ 1.1A’ ANA(iAR S It 1)IN I’S 1I0SIIlJYl!SPR1Sl1)INI NI lIRt \A(iAR Bli (iALM 5i0 010. APP!!.! AN I S (13Y Sri. A 0 MIt :\WAI)\IA Ii!. AI)V.) \N I) II 11 (:1 IA!! lAN AN!) MANA(jI\(i 1 Rt Sit ! P1 OP1 I I I )l. ( A I i( iN SUCh I Y ANI) 1 R S 1 A \1 SIIAIKII JIOMI P1\ 1111 1 1C \iF1)1C\.l CU! II Ci. Ni Ilk!. NACr\k 1W! ti\t Al H’i Sri, ABUt I RI] IAMAN Al LAH 1 \X SIIAIKII AG!.!) MAJOR (ICC. \IANA(iiNG I Rt’SI 1’!. R 0. C 0. A.M. 51 IAIKI I I IU\ll UP/\ II II(’ NI1 I)I(.’,\l Hit GA!. Al 500 010. (13\ Sri. RAVI S HAl IKA1, Al )V.) RI SP()N1)IN I PASS1i) IN U.S. No. AI)1)1 1i( )NAI (‘IV!!. 1)1 CR11 INC 1111 St ‘11 ‘Nl)I’R SiC’ lION 9( ANt) I)ICRII i)A lU) l9) 1904 ON I III’. 1Iii oI it i)(iI (SR.I)N.) H11,GAt\1 [OR I)AMA(jtS. 01 CPC F.! 0Z005 liii• III PAR II V Hll\\l I•\ R.i .A. No. 309 2006 1111 (11 \!R\I\\ \‘cI) \i\N •\ 1\C I Rh S III PU P! 1 II)!. L\ I IUN 50(11 I \\I) 1k!. SI .\ \1 SI !\IKI I I IO\1IOPA 11 I1C Ml DIC.\I L1!0I. NIl 1k!. \A(IAR HI I ( \h \1 5c)0 O1() 11115 R1’.\ IS Ill II) AG.\INS 1 1111 .1!. l)C!’vll NI Sri. \131)I I RI I I\1 \\ \l \I3 \\ Sit \iKI L •\(ii I) 60 Ni .\RS O( ( \1\\ \(ii\(r I R Si Ii R 0. ( ().\ \1 SI l\IK1 I I iO\1i UP \ ii ii( Mi I)I( \i CUI I lol Ni liRi N.\(rR 131 I (\ \i Q() 010 .. \PPI I L\N I BY Sri R \\I S 13\I 1KM. \I)V.) I. 110 (1 i\IRM:\N P1 I( )I NIX 5(1 IOU! Ni lIR \\(\R 131 1 (;.\1 \1 50001 (). 2 liii iiI Ii)i ‘\ I \ I.! \Y\N \(i\R Si I DIN I 11051 LI. NI IIRI N\(i\R 131 1 (.\[ \1 500 010, RI SP()NI)LN IS l3Y Sri \ 0 \H I .\\\ \I)M.\ III, \DV.) Illis \PP1 A! 15 1:111.1) 1 ‘NI )Lk SI’ C 1 I( )i\ 06 CPC ;\(I\lSN I III! Jl’i)(iMIN I ANt) I)l,c’RLI DAlI!) 1’”,10.2005 PASSII) IN OS, No. 109 1994 ON liii: iii i (W liii III Al)!)!. CiVil .11 ‘i)(il (Sk.1)N.) 1311 GAl ‘NI PAR1 I Y i)ICRI±1NG Dli SI lii OR I)ANI/\GI:S. I 11151 \PPI Al S ( ONIING ON 10k 1ILARIN(i ililS DAY. VI A’.Jt N\FH .J. 1)11 I\i RI I) 1111 I( )I I OWING: J 1, 1) (; M F 1’ RI A No. 2062 2005 is thud h thu appellants eha11enun the ieaiiI\ and correciness ol’ the judmeni and deeree passed in 0.5. No. l°) (9°-I h\ the Ill \ddi jonal (i\ ii Judce (Senior 1)i isit)n). BcHiuin. on I [U (11(5 I he appellants in the aho\ e appeal \ crc (IC kndants. RI A No. 309 0U6 is filed h\ the respondent in the aho e appeal and ho \\ as the plainti II, in the aho\ e suit. In other ords the plainti fl and deletidants beme not satis fled ‘ jill the judgment and decree ol the I riul Court ha e filed 1\\ o separate appealN. I herefore these t\\ 0 appeals are heard togeil icr. I or the sake of cons enienee the parties are relcrred as per their status heflare the I nat (ourt. 3. I he plaint ill is an educational institution. 1 he de fendanis are also running an educational institution. Both the institutions are situated side h\ side. It the case of plainti ii that deicndant No. I being a lessee of dekndant o. h filling mud raised its play ground to an e\lent of [cci in height adjoining the compound of the plainti hi’ as a result of hich. in the month of .1 une I 994. on account of hea rains there \ as ‘ ater lugging hicli resulted iii col lapsin of the compound ul plaintiff to an e\teni oh It) let height. 350 flj’et length and 1 feet 3 4 inch s \ idth approx imatel\ . According to the plai nfl fl the compound as iiiade ol e lone and cement and it \\ UN permaneni in nature. le1ore the c ie of the compound the phnni II had cal led upon de tendant \o. I to set rnht the tliins appreliendine dancer to the conipotiiid tilI defendant ‘o . did not look into the dainace hieh mas he canNed to the compound of the plainti fl on account I v alec loegi nc h ich resulted in col lapsi nc of the compound of the plainti IT on 1 2.1). I I he suit v as filed hs the plaintif[ aIer e\chance of notice. claiming the e\pendilure v hich mas he incurred for construction of nev compound at 4O.OO() -. 4. I )eIendants contested the suit dens in the al leations made in the complaint. According to them the compound dd not fall on account of raising of de hndant s pla\ ground. Hut. it \\ as on accouni 01 hea \ rains and also on account of the age of the compound since the same constructed man\ decades ago Ac cording to them it is an .\cl of God. I hereh.re the\ reities1ed the Court to dismiss the suit. 5. Based on the aho\ e pleadins. the liallo\\ ing issn ‘ere trained h\ the In al Court. 6 \\ hether the plaint I pros e that durine .1 une I °°4 the de hndant raised the height ol the play ground hehind the ladies hostel building md analom\ hall of the plamtiff h\ adding extra nuad and h\ le\ clung the same endangerine the said plaint ills buildings? ii. \\ hether the plaint ill pros e that the part of the compound all measuring 35(Y in length behind the ladies hostel to\\ ards estern side collapsed on 12.07. 1 94 due to the aho\ e acts ol the de ‘endants and the rain ‘a aler Ntarled enterin the properl\ of the plaintiff ‘a ith fl ree and damaged the hii i Id i ng of the pla i nti ii? iii. ‘\ hether the plainli If pro\ Cs that in order to pros e the damage to the propert\ ot the plaint ill and lr sa lt\ ot the students the plaintiff has to construct ne’a compound ‘a all the costs of ‘a hich is estimated to .4(f00() h the plaint il I ngi neer C. \ 1. Khinl’a adkar? i\ \\ hether the plaintiff pros us that due to the ‘a illl’ul negligence on the p’t of the deIndant. the plaint it I’ has su1Ered loss to the extent of 8.40.000 -? •1 Whether the plaintiff is entitled to reeoer fl.40.000— as damages from the plaintiff? vi. Whether the plaimiff is entitled for the interest at the rate of 18% p.a. on the said amount? vii. Whether the plaintiff is entitled for the permanern injunction order restraining the defendant from committing further damages to the plaintiirs property by diverting rain, drain or other water and earth or mud from his property to the plaintiffs property? viii. Whether the defendant proves that the old dilapidated compound ‘vail between the play ground and Vijaynagar Students hostel and the premises of the plaintiff cot lapsed due to unprecedented rain in monsoon season of the year 1994? ix. Whether the suit is bad for non joinder of the necessary parties? x. What order? 6. In order to prove the respective contentions. the Chairman of the plaintiff was examined as P.W. I. One Engineer was examined as S P\k .2. I he phun1i1’t i.lied in I NP. I to I\.P.26. (in bchal[ ol the deleiidaiils one \ itness \‘ as e\amined as I ).\\ . 1. 1 he cleibndant relied on I \l). I and l\.l).2. l3ased c)fl the abo\ C C\ idence the I nal (ourt held issue sos. I . 2 in a Ihirinati s e. 3 to 5 partl\ in a Ilirmati \ c. 6 in negati\ c. in alhrmali\ e. $ partl\ in allirmaii e. 9 in negati e and ultimate l\ the suit ol the plaint ill caine to be decreed liar a stun oh 4.20i)0() -. Being crie ed bx the udginent and decree o 1 the I rial Court the defendants tiled RI A. o. 2062 2005. Being not satisfied \\it h the decree granted b the I rial Court the plainti If has tiled RI .A. No 300 2006, In this background e ha e heard the learned counsel br both the parties. $ According to the learned counsel for the defendants. the I rial Court has committed an error iii holding that there x’ a negligence on the part ol defendants in raising the phi ground. According to hun. in the months I .1 tine dnd .lul\ I 904 there crc hea\ rains and on account ol hea rains the compound o I the plai nfl Ii ‘ as ‘ ashed a a\ on account of v ater logging and unforeseen Act of (od. lIe also contended that the compound as constructed se eral decades hack uid on account d us usual ear and tear a Iso a portion o I the corn pound ‘a all had fallen. In the circumstances he req uesls to al lo’a appeal and dism i the suit flIed h\ the plaint if. 9. Per contra. learned eounsel appearing br the plainti IT suhmits that the I na I Court ha’ ing come to the conclusion that the compound had collapsed on account of the act ot defendant No. I and ha ing accepted the e idence of P.\\ .2 C.M. Khinj’a adkar the I rial Court has coin in tied a seriotis error n not considering the claim I the appel lain far X.49.Ot)() - and that the finding of the I rial Court that the detndaiits are I iahle to pa on I\ $.2()()OO - is tunj ust and there Ire he requests the ( ‘ourt to allo\\ the appeal and he contends that the Trial Court did not consider the interest pa able h\ the del’euidauils on account ol’ deIa and laches in not reconstructing the compound intmediatel\ alter ii had collapsed. In the ciretumsiances he reqtuest the (our1 to decree the suit as p’ ed far. It) ter hearing the learned counsel for both the parties. considering that both the institutions are imparting education. 15 the\ 0 1(1 arc neighbours, all attempt was made by this Court to settle the mailer amieahk. During the course of settlement learned counsel (hr delendants made a suhmissioii that e en though the compound of the plaintiIi’as old as the said compound sali was made out ot si/c stones the ery same si/c stones can he reused thr rebuilding the compound and that the defimdants. in order to keep good relationship with the plaintifl. are willing to pay the cost of cement. sand and labour and so also the earth work br lay mg tile loundation provided the sue stones which were fallen and remained with the plaintiff are supplied to the defendants. l.eanled counsel lot’ tile plaintifl submits that tile piaintifl has not presen ed the si/c stones and therefore the elltire construction has to be made at tile cost of dekndants and in the circumstances the attempt made by this Court to settle the matter amicably between the parties was ended in ‘ain. I I it is Ilot in dispute that both the parties are not satisfied with the iudgment and decree of the I rial Court. l’hough the I rial Court decreed the suit 11w a sum ot ?4.20.000 — tile plaintiff contends that in iew of the e idenee of P. .2 the plaintiff was entitled tbr a decree ol .4OMO() - aIon w ith interest Ii is the ease ol defendants that the compound \\ as \ er old and it had col lapsed on account 01 heas rains lou \\ Inch the de lcndant cannot be made answ erable as it unotints to an :\ct 0! (iod. lie also contends that the pla inn II puricl\ did not lead e idence w nh reard to the ae ol the compound and he Ilirther contends that the e idence ol P.\\ .2 could not have been appreciated h the Court below since the details o t cost o construction o I the compound has not been gi en h\ him. In the circumstances he rejuested the Court to allow the appeal ol’ the defendants. 1 2 11 a ing heard the counsel or both the parties w hat i to he considered b\ us in these appeals is. whether the decree bar 4.2i JMU() - has to he con lirmed or to he modi lied or to be set aside and w hether the plainti If is entitled bar interest.’ I 3. .\s stated stipra the dispute hei een the parties is in rcard to the port ion oh coil apsed compound. It is not. in dispute that the same as a \ r\ old compound. P. \\ . i is not ilhiii to admit the ate ol the compound. Ii is also not. in dispute that the si/c stones w hich had follen alter a portion of the compound v all had collapsed can he reused for rehui Id i ie the compound. But the plainti 11s contention he tore u is that the plai nh IT has not retained the sue stones and thc ‘ crc taken a a h\ the eneraI puhl ic. I here is no e idence to the said efIct. :\dm i tied l\ hoth t lie parties are the educational inst i tnt ions and the\ are side h\ side and hoth the institutions are completeR enclosed h\ a compound. ( )ther than the students o 1 ihese parties no third part\ can trespass into the premises. In addition to that the compound ‘ hich has collapsed is neither situated in the IIont or hack or otherside o[ the plai nh tl s properl\ hut it is in het een the properties or plaint i 1.1. and deIndants. In such a place it is not possihie lIar an\ third par to enter into the premises and take out the size stones of the collapsed compound since the hostel of the plaini.i if is also situated in the same prctnise hich is secured completeR in all aspects. I here flare the content ion ol the plaintiff that the said si/c stones are tiot a ai lahle cannot he accepted. \ en other ise. hen the si/c stones o the plainti II \\ as a ailahle aller collapsin ol the compound \\all ii is the d ut\ o [the plainti Ii to keep them properl>. I cii if the plainti It has not kept those Ia I len stones it is lIar the plaint i IT to suppl\ the stones lien the de[cndants are illin to rchuild the compound at then cost h\ usine cement. sand. id l\ and labour. \k e ha e seen the iudgment of’ the I rial ourt. I he I rial ( ourt ha\ n come to the conclusion that the compound i a old one has allo\\ ed the claim of plaintiff to an e\tdnt oI 0. e ha\ e ako seen tile c idence of’ P.’vk .2. 1 us ease i that it reLj uires .40J)L)() - for construct ion 01 fld\\ compound and the mature of’ compound to he htn it is not disclosed in his report. lie has not stated that time sue stones could he used for construction ol’ nex compound in place ol collapsed portion. I Ic has also not stated hether it ould RCC compound or not. In the circumstances e are of the opinion that the evidence of’ P.\k .2 is not useful to the plaintiff 10 prose its Use. in the cue u nistances \\ e are of’ the pinion that both the parties ha\ e failed to lead d\ idence in a manner \\ hich v as required to he let in considering the actual nature of’ dispute hetw een the parties. Ii has come in the e idence of plainti IT that remnaining portion of’ time compound is ill CX i steilce d\ en toda\. i o match the e\isting poi’tion 0 the compound the collapsed portion has to be rebuilt usiilg si/C stone onl\, I here fbre in all ftirness p Ia i nh f’f’ ‘ as required to sa fguard the hillen si/c stones or piotect tlmem, \\ hen the defndants are \ ill ing to construct the collapsed compound at their cost subject to the plamnti fl prox idin si/c sk ne’. in all l’nrness. the plaint i if’ has to acree to the saiie. Si nec the parties ha e not let ans e\ idenee in this nianner, x e are ol’ the opinion. that the udgment and decree 01 the I rial Court i to he set aside and the matter is req u i red to he remanded to the I na I onri to e\aflflne u hat ould he cost ol cement. el l\. sand, earth ork br las ing flundation 1r the collapsed portion and the cost of lah tir pros id ini an opporlunil\ to hoi h the parties. II the parties are ahle to assist the Court in assessina the e\penditure that ma\ he incurred for rehui Idii’ig the compound \\ all and if the plainti if is ‘c ii ling to suppl\ the si/C stones then the de l’endants ma\ he directed to rehti 11(1 the eoinpotind considering the market al tie ol the material and cost of lahour. If the de fendant is ‘ ill mu to pa the said amount it is hr the plainti IT to make use of the constructed compound in the manner he likes. \\ hen this Court is directinu the I na! Court to consider toda ‘s market al ue of the materials as s elI as the lahour there is m necessit for 0 ie defendants to pa\ the interest also. 1 4 In \ i \\ 01 the aho\ e hot h the appeals are a I lo ccl. I he udumeni and decree of the I rial Court dated I . 1 (1.2(105 in 0.5. N 0. I 90 I 994 is hereh\ set aside. [he matter is remanded to the I rii I ‘ourl onl to consider the cost ol material (excludint size stones) and cost ol lahour and iherea tier a decree shall he passed directing the delendanis to the cost ol aho e material ithi n the stipulated time. II’ the amount is not paid ithin the spcci lied time. then the defendants ma\ he directed to pa\ interest. Parties to hear their ovn costs. In \ jew ol the order of remand the Court fee paid by the appellants in both the appeals are directed to be rc lunded to the appellants. Sd,’ sal Irs.