Karnataka High Court
Sri.Mahadevappa S/O. ... vs Basanagouda S/O. Ujjanagouda ... on 25 July, 2024
-1-
NC: 2024:KHC-D:10655
RSA No. 100095 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100095 OF 2019
BETWEEN:
1. SRI MAHADEVAPPA
S/O VEERABASANAGOUDA HARANAHALLI,
AGE: 67 YEARS,
OCC: AGRICULTURIST,
R/O: HIREMADAPUR,
TQ: HIREKERUR, DIST: HAVERI.
2. SMT. LALITAMMA
W/O ERANAGOUDA HARANAHALLI,
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HIREMADAPURA,
TQ: HIREKERUR, DIST: HAVERI.
3. KAREGOUDA
S/O. ERANAGOUDA HARANAHALLI,
AGE: 25 YEARS,
Digitally
signed by OCC: AGRICULTURIST,
BHARATHI S R/O: HIREMADAPURA,
Location: TQ: HIREKERUR, DIST: HAVERI.
HIGH COURT
OF 4. SUMA ERANAGOUDA HARANAHALLI,
KARNATAKA
AGE: 27 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HIREMADAPURA,
TQ: HIREKERUR, DIST: HAVERI.
5. UMA ERANAGOUDA HARANAHALLI,
AGE: 22 YEARS,
OCC: STUDENT,
R/O: HIREMADAPURA,
TQ: HIREKERUR, DIST: HAVERI.
6. SHANKARGOUDA
-2-
NC: 2024:KHC-D:10655
RSA No. 100095 of 2019
S/O. VEERABASANAGOUDA
HARANAHALLI, AGE: 48 YEARS,
OCC: AGRICULTURIST,
R/O: HIREMADAPURA,
TQ: HIREKERUR, DIST: HAVERI.
7. SMT. LALITA
W/O. JATTEPPA HORAKERI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: JOYISARAHARALA HALLI,
TQ: RANEBENNUR, DIST: HAVERI.
8. SMT. LEELA
W/O PARAMESHAPPA SOMANAHALLI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: KUNCHUR, TQ: HIREKERUR,
DIST: HAVERI.
...APPELLANTS
(BY SRI S N BANAKAR, ADVOCATE)
AND:
1. BASANAGOUDA
S/O. UJJANAGOUDA NAGAVVANAVAR,
AGE: MAJOR, OCC:AGRICULTURIST,
R/O: HIREMADAPURA - 581 111,
TQ: HIREKERUR, DIST: HAVERI.
2. BHARAMAPPA
A/F BASAPPA NAGAVVANAVAR,
AGE: 53 YEARS, OCC: KSRTC EMPLOYEE,
R/O: HIREMADAPURA - 581 111,
TQ: HIREKERUR, DIST: HAVERI.
3. SHIVAPPA
S/O. BASAPPA MALIYAPPANAVAR,
AGE: 57 YEARS, OCC: AGRICULTURIST,
R/O: HIREMADAPURA - 581 111,
TQ: HIREKERUR, DIST: HAVERI.
...RESPONDENTS
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED BY SENIOR CIVIL JUDGE AND
JMFC, HIREKERUR IN R.A.NO.82/2016 DATED 01.09.2018, SO ALSO
-3-
NC: 2024:KHC-D:10655
RSA No. 100095 of 2019
THE JUDGMENT AND DECREE PASSED IN O.S.NO.274/2013 BY THE
ADDITIONAL CIVIL JUDGE AND JMFC, HIREKERUR DATED
21.04.2016 AND TO DECREE THE SUIT IN O.S.NO.274/2013 BY
ALLOWING THIS RSA.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of Code of Civil Procedure1 by the plaintiffs challenging the judgement and decree dated 01.09.2018 passed in RA No.82/2016 by the Court of the Senior Civil Judge and JMFC, Hirekerur2 and the judgement and decree dated 21.04.2016 passed in OS No.274/2013 by the Court of the Additional Civil Judge and JMFC, Hirekerur3 whereunder, the suit for easement right filed by the plaintiffs has been dismissed by the Trial Court which has been affirmed by the First Appellate Court.
1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as 'First Appellate Court' 3 Hereinafter referred to as 'Trial Court' -4- NC: 2024:KHC-D:10655 RSA No. 100095 of 2019
2. The parties herein are referred to as per their rankings before the Trial Court for the sake of convenience.
3. It is the case of the plaintiffs that they are the owners of the property in RS Nos.147 and 146 shown as GKNP and PNCQ in the hand sketch produced along with the plaint. That the defendant No.1 is the owner of RS No.147 mentioned as LMNO in the said hand sketch and defendant No.2 is the owner to an extent of 6 acres 22 guntas mentioned in the EFGH in the said hand sketch. That EFGH portion is a bullock cart pathway in RS No.147.
4. It is the further case of the plaintiffs that the suit property in RS No.147/1B and 146/1A was originally belonging to the ancestor of the plaintiff and before defendant Nos.2 and 3 become the owners, it was in possession and enjoyment of the plaintiffs brother. That the plaintiffs and their elders used the pathway mentioned in EFGH for the purpose of cultivating their property and for transportation of crops grown in the plaintiff property. -5-
NC: 2024:KHC-D:10655 RSA No. 100095 of 2019 That the said pathway is starting from Hiremedur to Ratihalli main road. That the said pathway is used by plaintiff and defendant since 50 years and there is no alternative pathway to reach plaintiffs property. That the defendants interfered and are obstructing the plaintiff in using the said pathway. Hence, the plaintiff filed a suit for declaration that the plaintiffs have a right to use the pathway and to restrain the defendants from interfering with the same.
5. The defendants entered appearance through their counsel and the defendant No.1 in his written statement admitted the existence of the pathway in the suit property. However, it is stated that he has not restrained the plaintiffs and the plaintiffs have filed a false suit.
6. Defendant Nos.2 and 3 filed the written statement and they denied the case of the plaintiffs and denied the existence of the pathway as mentioned as ABCD in the hand sketch map in the plaint. The existence -6- NC: 2024:KHC-D:10655 RSA No. 100095 of 2019 of the properties by the parties are admitted. However, the defendants contended that there is an alternative route which is available for entering of the property and also for public to use the same. Hence, the defendant sought for dismissal of the suit.
7. Consequent to the pleadings of the parties, the Trial Court framed following issues:
"1. Whether the plaintiffs prove that there is Government bullock cart pathway in the suit schedule property, it given as ABEFG & H as shown in the hand sketch map?
2. Whether the plaintiff further proves that they have used this pathway since from more than 25 years?
3. Whether the plaintiff proves that they have entitle for the by way of prescription right?
4. Whether the plaintiffs have entitle for permanent injunction?
5. Whether the plaintiffs have entitle relief sought for?
6. What order or decree?"
8. Oral and documentary evidence have been adduced by the parties. The Trial Court also appointed an Advocate Commissioner who visited the spot and -7- NC: 2024:KHC-D:10655 RSA No. 100095 of 2019 submitted his report. The Commissioner was examined as PW.1 and Ex.C.1 to Ex.C.4 have been marked in evidence.
9. The Trial Court upon appreciation of the oral and documentary evidence on record dismissed the suit. Being aggrieved, the plaintiff preferred RA No.82/2016. The defendants entered appearance and contested the same. The First Appellate Court by its judgement and decree dated 01.09.2018 dismissed the appeal filed by the plaintiffs with cost. Being aggrieved, the present second appeal is filed. Along with the above appeal, IA No.1/2019 is filed under Section 5 of the Limitation Act to condone the delay of 39 days in filing the appeal.
10. Learned counsel Sri.S.N.Banakar contends that the application for delay is required to be favourably considered and thereafter the merits of the matter is to be considered. However, the learned counsel for the appellants was called upon to make his submissions on the merits of the matter for admission so as to consider as to whether IA No.1/2019 is required to be favourably -8- NC: 2024:KHC-D:10655 RSA No. 100095 of 2019 considered and accordingly submissions of the learned counsel for the appellants have been heard for admission.
11. Learned counsel for the appellant vehemently contends that the defendants have admitted the existence of the pathway/ road as per the case of the plaintiffs and hence, both of the Courts concurrently erred in dismissing the suit.
12. The submissions of the learned counsel for the appellants have been considered and the material on record have been perused.
13. It is forthcoming that consequent to both the parties adducing the evidence, since the evidence on record was not clear, the Trial Court appointed a Court Commissioner to inspect the pathway. Accordingly, the Court Commissioner visited the spot after due notice to the parties and filed his report and hand sketch, pertaining to the suit property. The Commissioner was examined as -9- NC: 2024:KHC-D:10655 RSA No. 100095 of 2019 CW.1 and Ex.C.1 to Ex.C.4 have been marked in evidence. The plaintiff cross-examined CW.1.
14. The Trial Court appreciating the evidence adduced by the Commissioner, noticing the contention of the plaintiff that there was a Government pathway which is in existence which is mentioned as ABCD in the plaint hand sketch has noticed that the Commissioner has stated that there is no pathway in existence in RS Nos.146 and 147 properties. Further, the Trial Court has recorded a finding that the pathway as per the contention of the plaintiff is not in existence in the village map (Ex.P.1).
15. Further, the Trial Court appreciating the hand sketch map (Ex.C.4) submitted by the Commissioner has recorded a finding that there is a village border road in existence in the southern side of the plaintiffs land which is not been shown in the plaint hand sketch. Hence, the Trial Court held that the conduct of the plaintiffs shows that the material facts are being suppressed.
- 10 -
NC: 2024:KHC-D:10655 RSA No. 100095 of 2019
16. Further, the Trial Court appreciated the report of the Commissioner, has recorded a finding that CW.1 has clearly admitted that there was a border pathway in existence, which is 7 to 8 feet in width, which shows that the same can be used to reach the plaintiffs land. Having regard to the Commissioner report, the Trial Court dismissed the suit.
17. The First Appellate Court re-appreciating the factual matrix of the matter as also noticing the Commissioner report and the contentions put forth by the plaintiff in the appeal, with regard to the Commissioner report, has recorded following findings:
18. The Court Commissioner Sri. B.G. Patil has been examined as CW-1 and he submitted his report which is marked as Ex.C1. He also produced the sketch prepared by him which is marked as Ex.C4. The court Commissioner has been cross examined on behalf of the plaintiffs, even though he has been cross examined at length, but nothing has been elicited from his mouth. The learned counsel for the plaintiffs fails to elicit the existence of "EFGH" road as shown in the plaint rough sketch. Further the Court commissioner has been questioned by the Trial Court and in his
- 11 -
NC: 2024:KHC-D:10655 RSA No. 100095 of 2019 answer, the Court Commissioner has clearly answered the existence of 7-8 feet road which is situated to the southern side of properties of the plaintiffs and defendants, as such the evidence of Court Commissioner corroborates the contentions of the written statement filed by the defendants No.2 and 3. On perusal of the Ex.C4 the sketch prepared by the Court Commissioner it reveals that, the cartway is situated from Rattihalli-Madapura road which runs till the end of R.S. No.144 only which is shown as "ABC". Further the Court Commissioner has not shown the existence of cartway as pleaded by the plaintiffs till the land of the plaintiffs. As such the plaintiffs fail to prove that, they are using the "EFGH" cartway as shown in the plaint rough sketch to reach their land. On the other hand, the defendants No.2 and 3 have established that, the plaintiffs are having an alternative way which is situated towards the southern side of the properties and the Trial Court has rightly observed the same and it rightly dismissed the suit of the plaintiffs. More over the plaintiffs have not produced sufficient and cogent material to prove that, they are using the "EFGH" cartway since more than 20 years.
(emphasis supplied)
18. Hence, the First Appellate Court has dismissed the appeal of the plaintiff with cost.
- 12 -
NC: 2024:KHC-D:10655 RSA No. 100095 of 2019
19. It is forthcoming from the aforementioned that having regard to the Commissioner report both the Courts have recorded concurrent findings of fact that the plaintiffs have failed to demonstrate the existence of the road as claimed by them in the plaint and in the hand sketch map filed along with the plaint. Further, as per the Commissioner report, it has been clearly stated that there is an alternative way for the plaintiff to reach his property. Hence, the First Appellate Court has also dismissed the appeal of the plaintiff.
20. It is forthcoming from the aforementioned that the Trial Court has appointed a Court Commissioner who has visited the spot and submitted his report. The Commissioner has also being cross-examined by the plaintiff. Both the Courts have recorded a concurrent finding of facts that the plaintiffs have failed to prove the existence of the road as claimed in the plaint. Further, both the Courts have recorded a concurrent finding of fact that there is an alternative road in existence for the
- 13 -
NC: 2024:KHC-D:10655 RSA No. 100095 of 2019 plaintiff to approach his property. The appellants have failed in demonstrating that the said concurrent findings of facts are in any manner erroneous and contrary to any specific oral and document evidence on record.
21. Having regard to the same, the appellants have failed in demonstrating that any substantial question of law arises for consideration in the above appeal.
22. Hence, no useful purpose would be served in favourably considering IA No.1/2019. Hence, IA No.1/2019 is dismissed and consequently, the above appeal is dismissed.
Sd/-
JUDGE PJ List No.: 1 Sl No.: 13