Zakir Hussain S/O Rajasab Kukanur vs T R Suresh S/O D.C.Rangappa
2022 Latest Caselaw 878 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 19TH DAY OF JANUARY 2022

                            BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        REGULAR SECOND APPEAL NO.5541 OF 2012 (INJ)

BETWEEN
SRI. ZAKIR HUSSAIN
S/O RAJASAB KUKANUR
AGE: 41 YEARS, OCC: TEACHER,
R/O. GOVT. HIGH SCHOOL, HORATHANAL,
NOW WORKING AT
MINORITY DEVELOPMENT OFFICE,
D. C. COMPLEX, KOPPAL,
TQ: AND DIST: KOPPAL
                                                ...APPELLANT
(BY SRI. P. H. GOTKHINDI, ADVOCATE)

AND
SRI. T. R. SURESH
S/O D. C. RANGAPPA
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O. ALLANAGAR, KOPPAL,
TQ. AND DIST: KOPPAL.
                                               ...RESPONDENT

(BY SRI. S B HEBBALLI, ADV.,)

      THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 07.01.2012 PASSED IN
R.A.NO.48/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
KOPPAL, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT
DATED 14.07.2011 AND THE DECREE PASSED IN O.S.NO.172/2009
                               2




ON THE FILE OF THE CIVIL JUDGE AND J.M.F.C., KOPPAL,
DECREEING THE SUIT FILED FOR INJUNCTION.

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


                           JUDGMENT

The captioned second appeal is filed by the

defendant questioning the concurrent judgment and

decree of the Courts below granting easementary rights

to respondent-plaintiff.

2. Today, the learned counsel appearing for

appellant would bring to the notice of this Court that

respondent-plaintiff, who is the owner of the residential

house situated at Survey No.192/A bearing plot No.32,

has sold his residential house in favour of the appellant-

defendant. The very claim of the respondent-plaintiff is

that the property purchased by him which is referred as

Schedule-I property marked as 'ABEFG' is on the hind

side and therefore, he has a right of easement in

Schedule-II property owned by the appellant-defendant

and the right of easement portion is referred as 'ABCD'.

The counsel appearing for appellant-defendant submits

that Schedule-I property, which is a residential house

owned by respondent-plaintiff is sold in favour of

appellant-defendant under a registered sale deed dated

20.11.2018 and the copy of the registered sale deed and

photographs are also furnished along with the affidavit

filed by the appellant. This factual aspect is not disputed

by respondent-plaintiff. Counsel appearing for

respondent-plaintiff submits that the respondent-plaintiff

has already sold schedule-I property in favour of

defendant. On account of subsequent development, the

claim made by the respondent-plaintiff asserting

easementary right in appellant-defendant's property

would not survive since the hind portion, which was the

residential house of the plaintiff, is already purchased by

the appellant. Therefore, on account of subsequent

development, the cause of action and the relief claimed

do not survive for consideration. With this observation,

the second regular appeal stands disposed of as the

documents placed on record clearly demonstrate that the

appellant-defendant has become the owner of the entire

extent of the property.

3. In view of disposal of the matter, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN