Y C Gowrish vs Sri. K B Shambu
2022 Latest Caselaw 2066 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                       BEFORE

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

      REGULAR SECOND APPEAL NO.1603 OF 2013

BETWEEN:
Y.C. GOWRISH
AGED ABOUT 37 YEARS
S/O CHANNABASAPPA
YEDEHALLI VILLAGE
NONAVINAKERE HOBLI
TIPTUR TALUK
TUMAKURU DISTRICT - 572 201.
                                        ... APPELLANT
(BY SMT SHRUTHI S P, ADVOCATE FOR
    SRI VINAYA KEERTHY M, ADVOCATE)
AND:
1.    SRI K B SHAMBU
      AGED ABOUT 50 YEARS
      S/O BASAPPA

2.    MANJULAMMA
      AGED ABOUT 45 YEARS
      W/O K.B. SHAMBU
      BOTH ARE RESIDENTS OF
      KANNUGHATTA
      NONAVINAKERE HOBLI
      TIPTUR TALUK
      TUMAKURU DISTRICT - 572 201.
                                      ...RESPONDENTS
(BY SRI S NAGARAJA, ADVOCATE).
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      THIS APPEAL IS FILED UNDER SECTION 100 R/W ORDER
XLII OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGEMENT
& DECREE DTD 12.08.2013 PASSED IN R.A.NO.21/2008 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC., TIPTUR,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DTD 18.1.2007 PASSED IN O.S.NO.108/2007 ON THE
FILE OF THE ADDL. CIVIL JUDGE (JR.DN) & JMFC, TIPTUR.


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


                        JUDGMENT

The present regular second appeal is filed by the

appellant/plaintiff aggrieved by the concurrent

findings rendered in the judgment and decree dated

18/01/2007 in O.S.No.108/2007 by the Additional

Civil Judge (Junior Division) and J.M.F.C., Tiptur (for

short hereinafter referred to as 'the Trial Court') and

the judgment and decree dated 12/08/2013 in

RA.No.21/2008 by the Senior Civil Judge and J.M.F.C,

Tiptur (for short hereinafter referred to as 'the First

Appellate Court') dismissing the suit of the

appellant/plaintiff for bare injunction.

2. The case of the appellant/plaintiff is that;

he is the absolute owner of the suit schedule property

being land in Sy.No.279 measuring 1 acre 1 gunta

having purchased the same in terms of deed of sale

dated 30/01/1984. That the revenue records are

standing in his name. That the

respondents/defendants having no manner of right

over the suit schedule property are claiming pathway

through the suit schedule property and are forcibly

making attempt to form pathway through the suit

schedule property. Hence, the appellant/plaintiff was

constrained to file the suit for permanent injunction

preventing the respondents/defendants from causing

interference.

     3.    Upon     service     of       summons,    the

respondents/defendants         entered       appearance.

Defendant No.1 filed written statement and defendant

No.2 adopted the same, specifically contending that

they are the owners of land bearing Sy.No.137/3A of

Kannughatta Village measuring 1 acre 20 guntas

having purchased the same in terms of the deed of

sale dated 05/10/1998 and the revenue records are

standing in their names. That there is a pathway

existing on the eastern side of schedule property in a

north-south direction and the said pathway is still

existing which is being used by them to have access

to their property and to carry the cattles through.

That the property of the brother of the plaintiff by

name Sarvesh is existing on the southern side of the

suit schedule property and except the said pathway

there is no other way to reach their property. That

the appellant/plaintiff without disclosing the existence

of pathway has filed the suit for permanent injunction

with an intention to cause obstruction in the

defendants' enjoying the said pathway. Hence,

sought for dismissal of the suit.

4. The Trial Court based on the pleadings

framed the following issues:

(1) Whether the plaintiff proves his lawful possession and enjoyment of suit schedule property as on date of suit?

(2) Whether the plaintiff further proves the alleged interference by the defendants?

(3) Whether the plaintiff is entitle for permanent injunction?

(4) What order or decree?

5. The plaintiff examined himself as P.W.1

and one Rajashekaraiah has been examined as PW.2

and exhibited 5 documents as per Ex.P1 to Ex.P5. On

behalf of the defendants, three witnesses have been

examined as DWs.1 to 3 and exhibited 12 documents

as Exs.D1 to D12. On appreciation of evidence, the

Trial Court by its judgment and decree dated

18/01/2008 dismissed the suit of the

appellant/plaintiff as the plaintiff failed to prove the

interference by the defendants. Aggrieved by the

same, appellant/plaintiff filed regular appeal in

RA.No.21/2008 before the First Appellate Court.

Considering the grounds urged in the appeal memo,

the First Appellate Court framed the following points

for its consideration.

(1) Whether the appellant proves the judgment and decree of the Trial Court is perverse, capricious and opposed to law and existing factual circumstance of this case, does it need interference by this Court?

(2) What order?

6. On re-consideration of oral and

documentary evidence, the first appellate court, by its

judgment and decree dated 12/08/2013 dismissed the

appeal of the appellant/plaintiff and confirmed the

judgment and decree passed by the Trial Court. Being

aggrieved with the same, the appellant/plaintiff is

before this Court in this regular second appeal.

7. Smt. Shruthi S.P., learned counsel for the

appellant/plaintiff reiterating the grounds urged in the

appeal memorandum submitted that;

a) That the trial court and the first appellate

court even in the absence of any material evidence

with regard to existence of pathway have grossly

erred in dismissing the suit accepting the contention

of the respondents/defendants.

b) That the respondents/defendants had not

claimed any easementary rights at any point of time

over the pathway and the courts below, thus, erred in

recognizing the right of respondents/defendants to

use the pathway and thereby causing miscarriage of

justice which gives rise to substantial question of law

requiring consideration. Hence, sought for allowing

the appeal.

8. Heard the learned counsel for the

appellant/plaintiff and perused the records.

9. It is the specific case of the

appellant/plaintiff that he being the absolute owner of

the suit schedule property has been in exclusive

possession and enjoyment thereof. That the

respondents/defendants are forcibly making attempt

to form pathway through suit schedule property. As

observed by the trial court and the first appellate

court the pathway is existing is outside of the

boundaries of the suit schedule property. Except

stating that the respondents/defendants are making

attempt to form pathway through suit schedule

property, the appellant/plaintiff has neither pleaded

nor produced any material evidence regarding

interference by the respondents/defendants.

10. The respondents/defendants, on the other

hand, have contended that they have been using

pathway which is situated on the eastern side of the

suit schedule property running north-south. The

pleading and material evidence would reveal that

there was no interference by the

respondents/defendants into the suit schedule

property of the appellant/plaintiff.

11. On a holistic reading of the pleading and

material evidence, no fault can be found with the

reasoning and finding given by the trial court and the

first appellate court. For the aforesaid reasons and

analysis, no substantial question of law is involved in

this appeal requiring consideration. In the result, the

following.

ORDER

i) Regular Second Appeal No.1603/2013

filed by the appellant/plaintiff is

dismissed.

ii) The judgment and decree dated

18/01/2007 passed in

OS.No.108/2007 by the trial court

and the judgment and decree dated

12/08/2013 passed in RA.No.21/2008

by the first appellate are confirmed.

Sd/-

JUDGE

Mkm