Venugopal vs S Krishna Murthy
2022 Latest Caselaw 10605 Kant

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                                                       RSA No. 106 of 2018


                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 11TH DAY OF JULY, 2022

                                            BEFORE
                          THE HON'BLE MR JUSTICE RAVI V HOSMANI
                       REGULAR SECOND APPEAL NO. 106 OF 2018 (PAR)

                  BETWEEN:

                  VENUGOPAL
                  AGED ABOUT 73 YEARS
                  S/O LATE B.S.SUBBARAYA
                  R/AT KODASOGE VILLAGE
                  TERAKANAMBI HOBLI
                  GUNDLUPET TALUK
                  CHAMARAJANAGAR DISTRICT-571 123.
                                                               ...APPELLANT
                  [BY SRI P.NATARAJU, ADVOCATE (PH)]

                  AND:

                  S.KRISHNA MURTHY
                  SINCE DEAD BY LR's

                  1.     SMT. MANJULA
                         AGED ABOUT 62 YEARS
                         W/O LATE S.KRISHNA MURTHY

                  2.
Digitally signed by
                         VENKATESHA MURTHY
VEENA KUMARI B           AGED ABOUT 44 YEARS
Location: High           S/O LATE S.KRISHNA MURTHY
Court of
Karnataka
                  3.     JAGADEESH
                         AGED ABOUT 40 YEARS
                         S/O LATE S.KRISHNA MURTHY

                  4.     RAJU
                         AGED ABOUT 36 YEARS
                         S/O LATE S.KRISHNA MURTHY
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                                             RSA No. 106 of 2018


      RESPONDENTS NO.1 TO 4 ARE
      R/AT KODASOGE VILLAGE
      TERAKANAMBI HOBLI
      GUNDLUPET TALUK
      CHAMARAJANAGAR DISTRICT-571 123.
                                                   ...RESPONDENTS
[BY SRI P.MAHESHA, ADVOCATE (PH)]

      THIS R.S.A IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.11.2017 PASSED IN
R.A.NO.193/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., GUNDLUPET, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.06.2017 PASSED IN
O.S.NO.220/2007 ON THE FILE OF THE ADDL. CIVIL JUDGE AND
JMFC., GUNDLUPET.

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

                           JUDGMENT

Challenging impugned judgment and decree dated

21.11.2017 passed in R.A.No.193/2017 by Senior Civil Judge &

JMFC., Gundlupet, by dismissing appeal, confirming judgment

and decree dated 30.06.2017 passed in O.S.No.220/2007 by

Addl. Civil Judge & JMFC. Gundlupet, appellant has preferred

this second appeal.

2. Though this matter is listed for admission, with

consent of learned counsel on both sides, it is taken up for final

disposal.

RSA No. 106 of 2018

3. Appellant herein was defendant in suit, while

respondents no.1 to 4 herein are legal heirs i.e., wife and

children of plaintiff in suit. For sake of convenience, parties

shall hereinafter be referred to as per their ranks in original

suit.

4. O.S.No.220/2007 was filed by plaintiff seeking for

decree declaring that plaintiff got right of way over item no.3 of

suit schedule property and to restrain defendants from

interfering with such right of way by issuing permanent

injunction etc. In plaint, it was stated that plaintiff and

defendant were brothers. Their father B.S.Subbaraya had three

sons namely, S. Krishnamurthy (plaintiff), S. Venugopal

(defendant) and another son - K. S. Venkataramaiah. It was

further stated that suit properties were originally ancestral joint

family properties held by their father. During his lifetime there

was partition and all properties were divided between three

sons. Item no.1 of suit schedule was allotted to share of

plaintiff, item no.2 was allotted to defendant with remaining

allotted to K.S. Venkataramaiah. Though, it was not registered,

partition deed was signed by all brothers on 25.10.1974. In

said deed, existence of pathway between properties of brothers

RSA No. 106 of 2018

was recognised. It was further stated that even before

partition, their father used such pathway for agricultural

purposes. It was his intention that even after partition, it

should be commonly available to all three sons. It was stated to

be measuring 11 guntas, to be used by all three sons for

agricultural purpose. Said pathway was described in detail in

item no.3 of suit schedule.

5. It was further stated that K.S. Venkataramaiah, sold

his share of property to defendant for consideration and died

about 12 years prior to suit. Thereafter, defendant demanded

plaintiff to sell his share of property. As plaintiff refused of such

offer, defendant began causing obstruction to plaintiff's

cultivation. He tried to block pathway by putting 'kalli-plant'

fence. Though plaintiff filed police complaint, no action was

taken as defendant was a retired police sub-inspector. In fact,

a case was registered against plaintiff and charge sheet was

filed. After trial, plaintiff was acquitted. Having failed to force

upon plaintiff to sell his share, defendant filed suit against

plaintiff. Thereafter on 10.01.2006, defendant tried to block

pathway and on 23.11.2007, he ploughed pathway. Once

RSA No. 106 of 2018

again, plaintiff did not receive proper response from police,

constraining him to file suit.

6. On service of suit summons, defendant filed written

statement admitting relationship and partition between children

of B.S. Subbaraya. He further stated that other brother had

sold his share to defendant. It was stated that after said

purchase, he developed agricultural activity by obtaining

electricity connection and using lift irrigation facility, he planted

coconut trees in Sy.no.166/1 and in a portion of Sy.no.167/1.

Existence of pathway in suit property was vehemently denied.

It was specifically asserted that plaintiff was using cart-road

existing on southern side of property since many years. Few

others namely Siddaiah and Kamarinaika along with plaintiff

were using said pathway to reach main road. Hence,

interference or obstruction of pathway was denied. It was

contended that there was no mention about pathway in

partition deed.

7. Based on pleadings, trial Court framed following

issues:

RSA No. 106 of 2018

1. Whether the plaintiffs proves that he is using the way as stated in schedule item no.3 to approach his lands as on date of filing of this suit?

2. Whether the plaintiff further proves that he has right of way on suit schedule item no.3?

3. Whether the plaintiff further proves that the alleged interference of the defendant over the suit schedule property item no.3?

4. Whether the plaintiffs prove the cause of action?

5. Whether the plaintiff is entitled for the relief as sought for in the plaint?

6. For what order or decree?

8. Thereafter plaintiff examined himself and two other

witnesses as PWs 1 to 3 and got marked exhibits P.1 to P.21.

Defendant examined himself and another witness as DWs. 1

and 2 and got marked exhibits Ex.D.1 to D.10.

9. On consideration, trial Court answered issues no.1 to

5 in affirmative and issue no.6 by decreeing suit, declaring that

RSA No. 106 of 2018

plaintiff was having right of way over item no.3 of suit property

and directing defendant by way of mandatory injunction to

remove fence put up in item no.3 of suit property and to refrain

from interfering with such right of way.

10. Aggrieved by same, defendant filed R.A.No.193/2017

on several grounds. It was contended that judgment and

decree was opposed to law, evidence and probabilities of case.

Reasons assigned and findings recorded were perverse,

capricious and unsustainable. Finding on issue no.4 was

perverse as plaintiff admitted that he had given application to

Tahsildar to issue directions for clearing of pathway, which was

replied on ground that there was no pathway in existence.

There was improper appreciation of admission by PW.1.

11. Based on contentions, first appellate Court framed

following points for consideration:

1. Whether the respondent/plaintiff has been established before the trial Court that, item no.3 property (cart track) is in existence and item no.3 property is only road to reach his land?

RSA No. 106 of 2018

2. Whether the defendant/appellant proves that, the suit is hit by of Section 34 proviso of Specific Relief Act?

3. Whether the defendant/appellant proves that, there are sufficient grounds to interfere in the trial court judgment and trial Court judgment and trial Court judgment is liable to be set aside?

4. What order?

12. On consideration, first appellate Court answered

point no.1 in affirmative, points no.2 and 3 in negative and

point no.4 by dismissing appeal.

13. Challenging concurrent findings, this appeal is filed.

14. Sri P. Nataraju, learned counsel for appellant

submitted that in addition to his share allotted to him under

partition dated 25.10.1974 - Ex.P.7, he purchased share of his

brother - K.S. Venkataramaiah under registered sale deed

dated 06.02.1991 - Ex.D.9. In said sale deed, to which,

plaintiff was also a signatory, there was no mention of

pathway. Further, about 4 to 5 years prior to suit, PW.1

admitted in cross-examination that defendant fenced

RSA No. 106 of 2018

Sy.No.166/1. And plaintiff gave application to revenue

authorities for clearing obstruction. After spot inspection,

revenue authorities rejected application observing that there

was no pathway. It was further contended that plaintiff

admitted to having alternative way to reach his lands. Findings

were therefore perverse. Hence, trial Court erred in decreeing

suit. Having failed to interfere, first appellate Court committed

error. Hence sought for admitting appeal and for granting

interim order.

15. On other hand, Sri P. Mahesha, learned counsel for

respondents - legal heirs of original plaintiff supported

impugned judgment and decree. He submitted that finding

about existence of common pathway and defendant causing

obstruction to its usage by plaintiff were findings of fact

recorded concurrently by both Courts upon consideration of

evidence on record. It was submitted that in Ex.P.7 - partition

deed, there was clear mention of common pathway, used by all

three sons of B.S. Subbaraya to reach their respective lands

allotted in partition. Even while planting coconut trees,

defendant had left space of 15 ft. wide for pathway. Though,

plaintiff had given application to Tahsildar for removal of

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RSA No. 106 of 2018

obstruction to road, said application was not considered as

pathway was not public road. It was further contended that

since existence of common pathway was claimed as an

easement by agreement, non-mention of pathway in Ex.D.9 -

sale deed would not bind or estopp plaintiff from enforcing his

rights. It was further submitted that existence of alternative

pathway would therefore, be irrelevant. Both Courts on due

appreciation of facts and evidence on record, held in favour of

plaintiff and therefore no substantial question of law arose for

consideration.

16. Heard learned counsel, perused impugned judgment

and decree and also record.

17. From above submissions, relationship between

plaintiff and defendant as brothers is not in dispute. Ex.P.7 -

Partition deed effected on 25.10.1974, whereunder, plaintiff

was allotted item no.1 is admitted. Thereafter, defendant

purchased share of other K.S. Venkataramaiah and thus, item

no.2 belonged to defendant is also admitted. While, plaintiff

contends that there exists pathway running through land

belonging to defendant described as item no.3 of suit schedule

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RSA No. 106 of 2018

property, defendant denies existence of pathway and

alternatively contends that same is either extinguished or

plaintiff is having alternative way to reach his lands.

18. While passing impugned judgment, trial Court noted

that relief claimed was with regard to an easement. Therefore,

it cast burden upon plaintiff to establish its existence. It

observed that plaintiff had clearly pleaded that his father was

using item no.3 - pathway to reach agricultural lands. It was

used for agricultural purposes only. At time of partition, it was

intended to be common to all sons to reach their respective

lands. Ex.P.7 admitted by both parties mentions pathway at

several places, especially while describing boundaries of lands

allotted to respective sharers. It was used by plaintiff and

defendants jointly. Above description corroborates oral

evidence of plaintiff witnesses.

19. It also considered objection of defendant from

considering Ex.P.7 on ground that it was an unregistered

partition deed. However, as partition in terms of Ex.P.7 was

admitted, it was considered only for collateral purpose of

establishing pathway, which would not be prohibited. It also

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RSA No. 106 of 2018

observes the reply to a suggestion put to DW.1 that an extent

of 06 guntas in his portion of land was left for pathway. He

answered that he was unaware instead of clear denial which

was his original stand adopted in written statement. By

considering fact that DW.1 was a retired Police sub-inspector, it

held that said answer was given consciously and amounted to

admission. It also refers to his reply about any village map

showing the alternate pathway or cart-track on southern side of

plaintiff's land as contended by him, his reply once again is that

he was unaware. As same was also contrary to his pleading,

reply was considered as failure to establish existence of

alternative access to plaintiff. Deposition of DW.2 regarding

existence of pathway is discounted by trial Court, as he

admitted that he had transactions with defendant and was an

interested witness. On over all consideration of evidence of

rival parties, it opined that probabilities favoured plaintiff and

decreed suit.

20. First appellate Court while concurring with findings

considered defendants contention against partition deed. It

referred to his admission that based on partition, he had filed

suit against plaintiff, as admission about partition. Ex.D.9 -

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RSA No. 106 of 2018

sale deed relied upon by defendant also indicated that parties

had acted upon partition and K.S. Venkataramaiah's legal heirs

had sold property fallen to his share to defendant.

21. Insofar as establishing existence of easement, it

relied upon Ex.P.7. It also examined contention of defendant

relying upon Ex.D.9, which did not mention about pathway and

estoppel of plaintiff, as he was a signatory to it. It also referred

to Ex.P.5 - report submitted by revenue inspector to Deputy

Tahsildar, wherein it was reported that at the time of partition

before panchayat, all three brothers had agreed to leave

pathway for common usage and were using it. Even Ex.P.6 -

Deputy Tahsildar's report to Tahsildar reflected same.

Considering date of Ex.P.6 as 18.10.2004 and date of partition

as 25.10.1974, it held that Section 47 of The Indian Easements

Act, 1882, would not be attracted as defendant failed to

establish that duration of non-user of easement was for a

continuous period of 20 years. Thus, it held plaintiff had

established existence of pathway.

22. On examination of deposition, it held that defendant

failed to establish existence of alternative way. It also

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RSA No. 106 of 2018

considered defendant's contention that suit was hit by Section

34 of Specific Relief Act as plaintiff had not sought for

possession and defendant was found to have blocked pathway

and in possession of land. Said contention was rejected on

ground that plaintiff had established existence of easement and

obstruction to plaintiff's use by defendant. As pathway was for

common use, appropriate consequential reliefs were sought.

23. Main contentions urged by defendant in second

appeal are that though, Ex.P.7 - partition deed mentions

pathway, Ex.D9 - sale deed attested by plaintiff also did not

mention about its existence. As revenue authorities had held

that there was no road while considering application given by

plaintiff for removal of obstruction. Finding was after spot

inspection and said finding had attained finality. Existence of

alternative way is also canvassed. Extinguishment of easement

is also urged.

24. Though, defendant denies Ex.P.7 - partition deed

and sought to challenge it due to non-registration, his case that

he purchased land fallen to share of his brother K.S.

Venkataramaiah, refers to said partition. Trial Court on analysis

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RSA No. 106 of 2018

of oral and documentary evidence held that partition in terms

of Ex.P.7 was admitted. As reference to Ex.P.7 was made only

for collateral purpose of showing existence of pathway, mere

non-registration of partition deed would not come in way. First

appellate Court also drew corroboration from reports - Exs.P.5

and P.6 submitted by revenue officials corroborating of

existence of pathway. Trial Court based on probabilities of case

held existence of pathway and granted relief to plaintiff. Same

is concurred with by first appellate Court upon re-appreciation

of evidence.

25. On perusal of Ex.P.7 as well as Exs.P.5 and P.6,

findings appear justified. Both Courts have upon examination of

oral and documentary evidence arrived at finding of fact about

existence of pathway.

26. Insofar as existence of alternative way trial Court

has referred to reply given during cross-examination by

defendant that there was no village map which showed

existence of alternative way. In any case, since instant case is

claiming right of easement by agreement, which is held

established, merely on unsubstantiated contention about

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RSA No. 106 of 2018

existence of alternative way would not disentitle plaintiff from

claiming relief. As finding of fact by both Courts is after due

appreciation of evidence and conclusions drawn thereon are not

either perverse or suffer from capriciousness, no substantial

question of law arises for consideration.

27. In the result, I pass following:

ORDER

Appeal is dismissed with costs.

Sd/-

JUDGE

Psg*