Adiyapap Gurusiddappa ... vs Channappa A/F Channappa ...
2022 Latest Caselaw 2046 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 9TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.100900/2014 (INJ)
BETWEEN

1.    ADIVEPAP GURUSIDDAPPA MARABASANNAVAR,
      AGE: 63 YEARS, OCC: AGRICULTURE,
      R/O. HIREKOPPA, TQ: NARGUND, DIST: GADAG -583231.

2.    KALLAPPA GURUSIDDAPPA MARABASANNAVAR
      AGE: 61 YEARS, OCC: AGRICULTURE, R/O. HIREKOPPA, TQ:
      NARGUND, DIST: GADAG - 583231.

                                               ... APPELLANTS

(BY SRI.MANOJ BIKKANNAVAR, ADV. FOR SRI.ANAND R.KOLLI, ADV.)


AND

CHANNAPPA A/F CHANNAPPA MARABASANNAVAR
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. HIREKOPPA, TQ: NARGUND, DIST: GADAG - 583231.

                                               ... RESPONDENT
(BY SRI.S.G.KADADAKATTI, ADV.)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 28.10.2014 IN
R.A.NO.18/2014 PASSED BY THE ADDL. SENIOR CIVIL JUDGE,
GADAG AND THEREBY CONFIRMING THE JUDGMENT AND DECREE
PASSED BY THE CIVIL JUDGE & JMFC, NARGUND IN O.S.NO.62/2011
DATED 01.04.2014.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                2




                          JUDGMENT

The captioned regular second appeal is filed by

unsuccessful defendants who have suffered concurrent

judgment and decree of the courts below wherein both the

courts below have granted perpetual injunction restraining

the present appellants/defendants from interfering with

plaintiffs right to enjoy the suit road.

2. Facts leading to the case are as under:

Respondent/plaintiff filed a bare suit for injunction by

specifically contending that he is the absolute owner in

possession and enjoyment of property bearing VPC No.206.

Respondent/plaintiff further contended that

appellants/defendants own property on the northern side of

the suit schedule property bearing VPC No.68.

Respondent/plaintiff further contended that sale deed

pertaining to VPC No.68 clearly indicates that on the

western side there is hospital road. Respondent/plaintiff

further contended that main door of plaintiff's house is

facing towards west and on the western side of the house,

the present public road is situated and respondent/plaintiff

is entitled for ingress and egress and also take cattle and

agriculture equipments by having access to the said

western road. The grievance of respondent/plaintiff was

that appellants/defendants are trying to put up a

construction and thereby tried to block the road and this

compelled the respondent/plaintiff to approach the court by

filing a suit for injunction simplicitor in O.S.No.62/2011.

3. On receipt of summons, the

appellants/defendants contested the proceedings by filing

written statement. The appellants/defendants having

stoutly denied the averments made in the plaint, however

contended that the road situated between the property

owned by plaintiff and defendants is a private road and the

same is exclusively owned by appellants/defendants.

Therefore, it is contended that respondent/plaintiff has no

legal right to use the said road since it is exclusively owned

by appellants/defendants. The respondent/plaintiff in

support of his contention examined himself as P.W.1 and

relied on documentary evidence vide Exs.P1 to P6.

However, the present appellants/defendants have not let in

any evidence and therefore, there is no contest by the

present appellants/defendants. The trial court having

examined the recitals in the sale deed vide Ex.P1, which is

the sale deed of defendants has come to the conclusion

that respondent/plaintiff has succeeded in establishing that

the road on the western side is a public road and not a

private road as alleged by appellants/defendants. Ex.P1 is

a sale deed of defendants and in the said sale deed, on the

western side it is clearly shown as public road. If the sale

deed of appellants/defendants indicates that on the

western side there is a public road, then the

appellants/defendants are estopped from taking a contrary

stand than what is stated in the sale deed of

appellants/defendants pertaining to property bearing VPC

No.68. Since there was no contest by the

appellants/defendants, the trial court having examined the

cogent and clinching evidence adduced by

respondent/plaintiff has proceeded to decree the suit.

4. The first appellate court having independently

assessed oral and documentary evidence has also taken

note of the recitals in the sale deed vide Ex.P1. The first

appellate court apart from examining the recitals in the

sale deed has also taken note of a specific suggestion

made by counsel appearing for appellants/defendants while

cross-examining P.W.1. There is specific suggestion in

cross-examination by the present appellants/defendants

that there is a public road. This part of the cross-

examination would clinch the issue and would further

strengthen the case of respondent/plaintiff. On these set of

reasoning, the first appellate court has proceeded to

dismiss the appeal.

5. It is against these concurrent judgment and

decree of the courts below, the unsuccessful

appellants/defendants are before this court.

6. Respondent/plaintiff to demonstrate that on the

western side of plaintiff's property as well as defendants

property there is a public road has relied on the title

document of appellants/defendants. In the sale deed

obtained by appellants/defendants, on the western side

there is reference to existence of public road. Coupled with

this title document, there is specific suggestion by

appellants/defendants while cross-examining plaintiff that

on the western side there is a public road. Moreover, the

appellants/defendants have not chosen to lead any rebuttal

evidence. In that view of the matter, both the courts were

justified in decreeing the suit filed by respondent/plaintiff

thereby restraining the present appellants/defendants from

interfering with the respondent/plaintiff's right to use the

road and to have access to his property. In the absence of

rebuttal evidence, the grounds urged in the present appeal

cannot be entertained under Section 100 of CPC.

7. No substantial question of law arises for

consideration in the present case on hand. Accordingly, the

appeal stands dismissed.

8. In view of dismissal of the appeal,

I.A.No.1/2014 does not survive for consideration and the

same is dismissed.

SD/-

JUDGE MBS/-