Ragvendra S/O Dashrath ... vs Khandappa S/O Yankappa Kopurkar
2022 Latest Caselaw 10216 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

       DATED THIS THE 04TH DAY OF JULY 2022

                        BEFORE

 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

              RSA No.7429/2013 (DEC/INJ)

BETWEEN:

Raghavendra S/o Dashrath Jammanakatti,
Age: 32 years,
R/o Bhiogalli Shorapur,
Dist: Yadgiri-585325.
                                             ... Appellant
(By Sri Shivanand Patil, Advocate)

AND:

Khandappa S/o Yankappa Koppurkar,
Age: 67 yaers, Occ: Rtd. Govt. Servant,
R/o Mochigalli Shamsheerpura,
Shorapur Town, Dist. Yadgiri-585325.
                                           ... Respondent
(By Sri J.Augustin, Advocate)


      This Regular Second Appeal is filed under Section
100 of CPC, praying to allow the appeal by setting aside
the impugned judgment and decree dated 19.08.2013 in
R.A.No.06/2013 on the file of the Senior Civil Judge,
Shorapur, and the judgment and decree dated 29.02.2012
in O.S.No.200/2005 on the file of the Civil Judge (Jr.Dn)
Shorapur, and dismiss the suit of the plaintiff and etc.
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     This appeal having been heard and Reserved for
Judgment on 14.06.2022, coming on for pronouncement of
Judgment this day, the Court delivered the following:

                            JUDGMENT

This regular second appeal is filed by the original

defendant challenging the judgment and decree dated

29.02.2012 passed in O.S.No.200/2005 on the file of

Civil Judge (Jr.Dn) Shorapur, and confirmed in

R.A.No.06/2013 on the file of the Senior Civil Judge,

Shorapur vide order dated 19.08.2013.

2. For the sake of convenience, parties herein

are referred with the original ranks occupied by them

before the Trial Court.

3. The brief facts leading to the case is that,

the plaintiff has filed a suit for declaration of his

easementary right of way from the northern gate of

house No.1-2-24 and 24 situated in Mochigalli

Shamsheepura, Shorapur and further sought for

direction for removal of RCC pillars erected by the

defendant infront of northern gate of the plaintiff's

house by way of mandatory injunction.

4. It is the case that the plaintiff is the owner

and possessor of house No.1-2-23 and 24 (new)

corresponding old No.1-2-21 and defendant is the

owner of the house bearing No.1-2-07 (new)

corresponding old No.1-2-6/A situated in Medargalli

towards northern side of plaintiff's house. The suit

open space width of 05 feet adjacent to the northern

wall running east to west and thereafter 08 feet wide

road running east-west situated on the side of

northern wall of plaintiff's house. The same is shown

by red colour in the hand sketch map. That the

plaintiff is using the suit way through his northern

gate to have access to Machigera Bhavi and the

western main road. The plaintiff is using the suit way

for more than 20 years openly, peacefully and

uninterruptedly and thereby he has acquired

easementary right over the suit schedule property

since from his fore-fathers. That the plaintiff has got

easementary right over the suit property for better

enjoyment of the suit schedule property. That the

defendant, in the absence of plaintiff, started

construction work over his property and excavated the

foundation pits for laying RCC pillars infront of the

northern door of plaintiff's house adjacent northern

compound wall illegally. That the defendant has no

authority and right to erect pillars by blocking the

access to the plaintiff's house from northern gate. It

is further asserted that in the sale deed of the

defendant, pertaining to his property executed by one

Shivbai, the 08 feet wide road is shown and certified

copy of the sale deed reveals existence of open space

and defendant without any right title or interest

constructing the house illegally by blocking the road.

Hence, the plaintiff has filed a suit.

5. The defendant has filed written statement

and admitted the title of plaintiff over his property and

also admitted his ownership over his property as

pleaded by the plaintiff. However, he denied the

averments in respect of existence of way and

easementary right as claimed by the plaintiff. He has

also denied that defendant is constructing the house

by encroaching public open space and road by putting

the pillars. He contended that he has applied for

municipal license for construction as per law and after

complying all the procedures permission has been

granted. According to defendant, plaintiff has

constructed compound wall infront of his house

including the suit open space illegally and further

asserted that plaintiff himself has encroached the

public space and has caused nuisance to the general

public. He contended that he is constructing as per the

sanctioned plan and denied rest of the allegations and

sought for dismissal of the suit.

6. On the basis of these rival pleadings, the

trial Court has framed following issues;

(a) Whether the plaintiff proves that, he has got an easementary right of way from the northern gate of his house till the Machigera Bhavi and the main road situated on the western side of his house?

(b) Whether the plaintiff prove that, the defendant is trying to block the said way by constructing RCC pillars abutting the northern gate of his house?

(c) Whether the defendant proves that the valuation of suit is incorrect and the

Court fee paid on the plaint is in sufficient?

(d) Whether the plaintiff is entitle for the reliefs sought for?

(e) What order or decree?

7. The plaintiff has got examined as PW.1 and

two witnesses were examined on behalf plaintiff as

PWs.2 and 3 and he placed reliance on 11 documents

marked as Ex.P1 to P11. On the contrary, the power

of attorney of defendant got examined as DW.1 and

Exs.D1 to D3 were got marked.

8. After hearing the arguments and

appreciating the oral and documentary evidence, the

trial Court has answered all the issues in the

affirmative and decreed the suit.

9. Being aggrieved by this judgment and

decree, the defendant has filed an appeal in

R.A.No.6/2013 on the file of the Senior Civil Judge,

Shorapur and the learned Senior Civil Judge after

hearing the arguments, by judgment dated

19.08.2013 dismissed the appeal by confirming the

judgment and decree passed by the trial Court.

10. Being aggrieved by this concurrent findings

by both the Courts below, the plaintiff has filed this

appeal under Section 100 of CPC.

11. Heard the arguments advanced by the

learned counsel for the appellant/defendant and

respondent/plaintiff. Perused the records.

12. Learned counsel for the

appellant/defendant would contend that there is no

dispute regarding the title of respective properties and

he would contend that plaintiff has not disclosed the

dimensions of his property. He would contend the trial

Court as well as the First Appellate Court have

proceeded on negative perceptive and the concerned

municipal authorities have granted permission to

defendant for constructing of house. He would

contend that the plaintiff who has encroached the

public way and now he had filed a false suit and even

he would submit that plaintiff has not obtained a local

Commission to ascertain factual aspects. He would

also contend that how the plaintiff has acquired the

property and source of property is not disclosed and

there is no evidence that for more than 20 years the

plaintiff is using the suit schedule property. He would

further contend that even till today, he is ready for

appointment of Commission for spot inspection.

Hence, he would contend that both the Courts below

have proceeded on wrong presumption and it has

resulted in miscarriage of justice. As such, he would

seek for dismissal of the suit and prayed for allowing

the appeal.

13. On the contrary, learned counsel for the

respondent/plaintiff would contend that the title on

the respective property is not clouded and there is no

dispute regarding this aspect. He would also contend

that the defendant is the best person to give evidence

as the facts are within his knowledge, but he did not

enter into witness box, but the power of attorney was

examined. He would also contend that there is no

evidence to show that whether the property of

defendant is converted into NA and both the Courts

below on proper appreciation of oral and documentary

evidence have come to a conclusion that there existed

a common way and plaintiff is encroaching the same,

which is also admitted by DW.1. He would contend

that title of defendant is not disputed and though the

defendant is making allegations of plaintiff

encroaching, thereby he has admitted the existence of

the way and he has not sought for any counter claim.

He would also contend that no local person was

examined on behalf of the defendant and the

defendant has blocked the plaintiff's way by putting

the pillars. Hence, he would contend that no

substantial question of law is involved and as such he

would seek for dismissal of the appeal.

14. Having heard the arguments and perusing

the records, it is evident that there is no dispute

between the parties in respect of title pertaining to

respective properties. The plaintiff is claiming

easementary right over the suit schedule property.

Though the defendant admitted existence of suit

property, interestingly has taken up a defence that the

plaintiff has encroached the suit property. The plaintiff

has produced Ex.P1, hand sketch map, while Ex.P2,

property extract, which stands in his name. Ex.P3,

property extract of defendant. Ex.P4, is a material

document which is the certified copy of the sale deed

in respect of the property of the defendant, which he

has purchased. On perusal of the sale deed, it is

evident that it is shown to be 55 feet x 50 feet and on

the southern side it is shown to be as 8 feet road. It

is the specific contention of the plaintiff that on the

northern side of his property, there is a 5 feet open

space and thereafter the public road is situated and

then the property of defendant is situated.

15. It is the specific contention of the plaintiff

that defendant has erected the pillars adjoining to the

northern gate of his property and thereby blocked his

way. From Ex.P4, it is evident that 8 feet wide road is

existed towards southern side of the property of the

defendant. Interestingly, the defendant is contending

that the plaintiff has encroached the road, however no

counter claim is made by defendant in this regard in

his written statement. The defendant has not placed

any material to show the alleged encroachment.

16. The defendant has placed reliance on

Ex.P5, P5(a) and P6, which are the construction

permission and approved map. But it is important to

note here that the defendant did not enter into

witness box. On the contrary, he has got examined his

power of attorney, who is not related to defendant by

blood. Hence, DW.1, cannot depose regarding the acts

done by the defendant or acts within the knowledge of

the defendant. He can only depose in respect of acts

done by him after execution of the power of attorney.

Though the defendant claims to be residing in

Belagavi, that itself is not a ground for his non-

examination.

17. Apart from that, power of attorney in his

cross-examination pleads ignorance to each and every

aspect. Even, DW.1 pleads ignorance regarding the

suit property number and he further claims that the

suit property was not converted into Non-Agricultural

and he do not know regarding approved plan of Non-

Agricultural. If this version is considered, then this

witness does not know anything and when the

property is not converted into Non-Agricultural,

question of Municipal Authorities granting permission

does not arise at all. Hence, it is evident that

Municipal Authorities have also acted high handedly

without verifying the records.

18. Much arguments have been advanced

regarding the plaintiff having approached the Court

and burden is on the plaintiff to substantiate his

contention. No doubt, the plaintiff has approached this

Court but the documents clearly disclose the existence

of road on the southern side of the property of

defendant and on the northern side of the property of

plaintiff. On the contrary, the defendant himself all

along asserted that plaintiff has encroached the public

road, but interestingly, he did not claim any counter

claim in this regard. Further, the defendant has not

examined any of the independent witnesses but PWs.2

and 3, who are the local witnesses have deposed in

favour of the plaintiff.

19. Apart from that, DW.1 in his cross-

examination admitted that on the southern side of the

property of plaintiff 8 feet road is situated and

thereafter 5 feet open space is situated. Hence, the

very admission proves the existence of the suit

schedule property and when the defendant is

asserting encroachment on behalf of plaintiff, no such

relief is claimed by him. The evidence of plaintiff

establish existence of the gate on the northern side

and DW.1 has also admitted that pillars were erected

up to the gate of plaintiff. That itself clearly establish

that the road to approach the plaintiff's house was

blocked and defendant has no right to block the public

road and access to the plaintiff's property. DW.1

clearly admitted in his cross-examination that pillars

were raised up to the compound gate and that itself

disclose that it is encroached and erected the pillars

on the public property. Under these circumstances,

the evidence clearly disclose that it is the defendant

who has encroached the public way and thereby

obstructed in use of the public way as well as in

exercising easementary right to approach the well

situated on the northern side of defendant's house.

Both the Courts below have appreciated this oral and

documentary evidence in detail and have rightly

decreed the suit of the plaintiff and dismissed the

appeal filed by the defendant. The judgment and

decree passed does not suffer from any illegality or

infirmity so as to call for any interference. No

substantial question of law is involved and under such

circumstances, the appeal is devoid of any merits and

needs to be rejected.

20. Accordingly, I proceed to pass the

following;

ORDER

The appeal is dismissed.

Sd/-

JUDGE

msr