THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
SECOND APPEAL No.344 OF 2022
JUDGMENT:
This Second Appeal has been filed under Section 100 CPC by an unsuccessful defendants in O.S.No.138 of 2004 questioning the concurrent finding of the trial Court in its judgment dated 11.10.2012 and judgment of the 1st appellate Court in A.S.No.99 of 2018, dated 18.02.2020. The respondent/plaintiff filed O.S.No.138 of 2004 for declaration of right to use a particular way which is shown in the schedule and also for perpetual injunction and mandatory injunction in respect of suit schedule way which is passing through the land in Sy.No.246 and touching the National Highway-7 in the land of defendant in Sy.No.246 of Siddapur revenue village.
2. The trial Court passed Judgment and Decree in favour of the plaintiff declaring the right of the plaintiff to use the suit schedule property as way and granted 2 SSRN, J SA No.344 of 2022 mandatory injunction directing the appellants herein to remove the obstructs and barbed wire fencing in the suit way within a month from the date of Judgment and Decree. The appellants herein were permanently restrained from interfering with the right of respondent/plaintiff in using the said way.
3. Being not happy with the said Judgment, the appellants have filed 1st appeal before the district Court, Nirmal vide A.S.No.99 of 2018. However, the 1st appellate Court dismissed the appeal and confirmed the Judgment of the trial Court. Being aggrieved by the said Judgment, the appellants filed this appeal on the following grounds:
The 1st appellate Court committed an error by dismissing the 1st appeal without considering the oral and documentary evidence in proper way, but on the assumptions and presumptions. The trial Court and the 1st appellate Court have given unnecessary importance to the evidence of PW1. The trial Court and 1st appellate Court failed to appreciate the evidence in a proper way and 3 SSRN, J SA No.344 of 2022 the Court ought to have seen that the documents filed by the respondent do not show the alleged passage, but the Courts below without considering the fact that the respondent did not file the sale deed through which they said to have acquired the right over the suit way, passed decree. But, there was no such passage at the time of filing the suit and even prior to filing the suit. The Courts below ought to have considered that the appellants are in peaceful possession and enjoyment of the land without any interruption whatsoever from any corner and it is not being used by the respondent or villagers. Therefore, the suit filed by the respondent ought not to have been decreed.
4. The appellants further prayed that the 1st appellate Court ought to have seen that the Court below relied on Exs.A1 to A3 and oral evidence of PWs 1 and 3. But, the said evidence was not appreciated nor discussed in the Judgments. Therefore, the appellants sought for setting aside the Judgment and Decree and prayed for dismissal of the suit.
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5. However, after hearing the counsel, this appeal has been admitted on the following substantial questions of law:
1. Whether the Judgment and Decree of the trial Court and 1st appellate Court are right and based on acceptable evidence?
2. Whether the Judgment and Decree on the basis of Exs.A2 and A3 which are subsequent to the suit are sustainable?
3. Whether the conclusion of trial Court and 1st appellate Court about the right of plaintiff to obtain mandatory injunction is contrary to the settled principles of law?
6. Heard learned counsel for the appellants. None appeared for the respondent.
7. Before adverting to the substantial questions of law and the arguments advanced by the learned counsel for the appellants, it is necessary to see what was the case of the respondent before the trial Court and what was the contention of the present appellants and as to how the trial 5 SSRN, J SA No.344 of 2022 Court as well as the 1st appellate Court dealt with the suit. According to the plaint filed by the respondent/plaintiff, it shows that the respondent sought for declaration of right to use 60 feet wide way which is passing through the land in Sy.No.246 and touching the National Highway-7 and though the land of defendants in Sy.No.246 at Siddapur Village which is shown in red colour in the land annexed to the plaint and also for mandatory injunction to direct the appellants herein to remove the barbed wired fencing which was raised by the appellants to obstruct free passage through the said way.
8. The respondent has claimed that he is the owner and possessor of lands in Sy.No.244,245,246,128 and 129 of Siddapur Village. The lands in Sy.No.244 and 245 are sub- divided as Sy.No.244/1 to 244/3 and 245/1 to 245/3 in the revenue records. The appellants herein are owners of part of land in Sy.No.246. The land purchased by the defendants has been identified as Sy.No.246/2 and the remaining land is identified as Sy.No.246/1. Both the 6 SSRN, J SA No.344 of 2022 appellants as well as respondent purchased their respective properties from the same vendor. The respondent has claimed that there is a way passing through the land in Sy.No.246,245,244 and 243 of Siddapur Village. The said way is shown in the village map and also as per the master plan 60 feet width road shown through the suit land and is running from East to West, touching the National Highway-7. The godowns of the appellants herein are situated on the South of the suit way and there remains rest of the open space which belongs to the appellants on the Northern side of the said way. The Respondent has claimed that when the defendants closed the suit way by fixing wire fencing, the respondent made complaint to Mandal Revenue Officer and got the land measured through Surveyor. The Surveyor has presented his report showing the existence of the suit way. The respondent has further stated in the plaint that during August, 2003 the appellants herein closed the suit way and the Municipal authorities did not take any action against 7 SSRN, J SA No.344 of 2022 the appellants. Therefore, the respondent sought for declaration to declaring his right to use the way and other reliefs.
9. The appellants herein filed written statement denying the averments made in the plant and contending that the respondent is not the owner and possessor of land in Sy.No.246 or 246/1. The 1st appellant purchased 3 acres of land in Sy.No.246 under a registered sale deed, dated 06.10.1976. The appellants have claimed possession over the property which they purchased under the above referred sale deed and claimed that there is no such way as alleged by the respondent. Therefore, the question of their closing way as alleged by the respondent does not arise and sought for dismissal of the suit.
10. The trial Court framed the following 5 issues:
1. Whether the plaintiff is entitled to suit way as right of necessity?
2. Whether the plaintiff is entitled to relief as prayed for ?8
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3. Whether the suit way exclusively used by the defendants are not ?
4. Whether the suit is liable to be dismissed?
5. To what relief?
11. During trial the plaintiff has produced 3 witnesses and they were examined as PWs 1 to 3. However, the evidence affidavit of PW2 was eschewed as he was not produced before the Court for cross examination. The respondent has marked Ex.A1 to A3. The counsel representing the appellants herein reported no evidence, thereby the trial Court having appreciated the pleadings of both parties, oral evidence of PW1, PW3 and the documents marked as Exs.A1 to A3 came to the conclusion that the suit path way is in existence, the respondent is able to show his right to use the said way and decreed the suit by its judgment.
12. The 1st appeal filed by the appellants herein was dismissed, confirming the Judgment and Decree of the trial Court. Therefore, there is a concurrent finding against the 9 SSRN, J SA No.344 of 2022 appellants herein. This being Second Appeal, the appellant shall show substantial questions of law by which the Court can interfere with the Judgment and Decree of the trial Court or the lower appellate Court.
13. As already stated in the previous paragraphs, except written statement which is nothing but total denial of the plaintiff case, the appellants did not adduce any oral or documentary evidence in support of their contention. The respondent/plaintiff, who has claimed right of way to reach his lands, examined himself as PW1 and examined one more witness who is neighbor and who is enjoying the same way as PW3. Exs.A1 to A3 were also marked. Learned counsel for the appellants herein cross examined Pws 1 and 3, but nothing important could be elicited. The trial Court while passing Decree, considered the oral evidence of PWs 1 and 3 and also master plan and rough sketch. According to the impugned Judgment it is quite clear that even though PW1 was cross examined at length, the appellants herein could not show that there was no such 10 SSRN, J SA No.344 of 2022 way as claimed by the respondent. In fact, in the cross examination the respondent has deposed before the Court that he purchased an extent of 35 guntas of land out of Ac.3.35 guntas and further claimed that except the suit path way, there is no other way to approach his land. PW3 also deposed the same version.
14. As could be seen from Ex.A2 letter addressed by Commissioner, Municipality, he has admitted the existence of 60 feet wide road in master plan which runs from Venkatapur to Siddapur village and the said road is passing through the lands in Sy.No.246,245,244 and 243 and crossing National Highway-7 and ends in Sy.No.129 at Siddapur Village. Ex.A3 location map signed by the Mandal Revenue Officer also supports the case of respondent.
15. Therefore, the oral evidence and documents marked as Ex.A1 to A3 would disclose that the suit schedule path way is running through the above referred survey numbers and that is the only way for the plaintiff and other 11 SSRN, J SA No.344 of 2022 neighboring rights. Therefore, the trial Court as well as 1st appellate Court accepted the contention of the respondent/plaintiff and granted mandatory injunction with a direction to the appellant herein to remove the obstruction if any. The rough sketch filed along with plaint also indicates that the suit way is the only way for the respondent/plaintiff to reach their property.
16. The appellants herein did not choose to adduce any evidence to substantiate their claim raised through written statement. Even the cross examination of PWs 1 and 3 also could not support the contention of the appellant herein. It may be true that Exs.A2 and A3 are subsequent to filing of suit, but they indicates the existence of suit way and there is no contra evidence by the appellant herein to show that those documents are created for the purpose of the suit. Therefore, the finding recorded by the trial Court as well as the 1st appellate Court on facts, cannot be questioned in the present appeal and in fact the appellants 12 SSRN, J SA No.344 of 2022 herein could not raise any substantial questions, thereby the appeal is liable to be dismissed.
17. In the result, this Second Appeal is dismissed. No costs.
As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date:29.09.2023 PSSK