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Judgment
Huluvadi G. Ramesh
This second appeal is by the defendants challenging the order passed by the Prl. Civil Judge (Sr. Dn.) and CJM, Gadag in R.A. No. 211/2006 allowing the appeal filed by the plaintiff. Respondent-plaintiff filed a suit before the II Addl. Civil Judge (Jr. Dn.), Gadag in O.S. No. 203/2004 for permanent and mandatory injunction restraining the defendants from diminishing the wall shown as AE and fixing of cupboards etc, in the half portion of the wall belonging to the plaintiff and put roofing on the said wall and also to direct the defendants to demolish half portion of the wall lying towards their side and close the cupboard etc., fixed in the half portion towards left side. On the matter being contested, the trial Court has raised as many as six issues and two additional issues and while dealing with the relevant issues, has dismissed the suit of the plaintiff, against which in the appeal preferred, the appellate Court has set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff with cost. Hence, this second appeal by the defendant.
Heard.
The substantial question of law that arises for consideration in this appeal is, whether the lower appellate Court is justified in decreeing the suit of the plaintiff when the trial Court has dismissed the suit in entirety?
As is asserted by the plaintiff., there is a cupboard fixed on the side of the plaintiffs wall, as such the said wall has become hollow. Further, the common wall was of 2 feet width and by removing the same, a wall of 1 1/2 feet has been rebuilt by reducing 1/2 feet, thereby the strength of the wall has been reduced. Although, the suit of the plaintiff has been dismissed before the trial Court, when the plaintiff before the lower appellate Court has raised the grievance, it has allowed the suit in entirety to restore the common wall to its original position. However, while modifying the order of the lower appellate Court, it is hereby ordered that the wall so built by the defendants after demolishing the old wall shall be retained. But to strengthen the said wall, the cupboards fixed by the defendants on the side of the plaintiff''s wall has to be removed and it should be re-strengthened by completing the wall structure by closing the cupboards/hollows/holes. The reinforcing of the common wall shall be done in three months from the date of obtaining this order.
While answering the substantial question of law raised accordingly, appeal is allowed in part.