Karnataka High Court
Mahadeva vs Chikkamadaiah on 24 June, 2022
Bench: Ravi V Hosmani
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RSA No. 684 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 684 OF 2014 (DEC)
BETWEEN:
MAHADEVA S/O MARINANJAIAH,
AGED ABOUT 52 YEARS
R/AT KODAGAHALLI VILLAGE, B.G.PURA HOBLI
MALAVALLI TALUK AND ALSO WORKING AS LINEMAN
KPTCL NOW CHESCOM AT OOTAGAHALLI
POWER STATION, MYSORE HUNASUR ROAD
MYSORE-570 008. ...APPELLANT
[BY SRI JAGADEESHWAR J., ADVOCATE (PH)]
AND:
1. CHIKKAMADAIAH
S/O LATE MARIMADAIAH
AGED ABOUT 53 YEARS
2. NAGAMMA
W/O CHIKKAMADAIAH
AGED ABOUT 46 YEARS
3. SHIVAMURTHY
S/O MARINANJAIAH
Digitally signed by
VEENA KUMARI B AGED ABOUT 51 YEARS
Location: High Court of
Karnataka ALL ARE R/A KODAGAHALLI VILLAGE
B.G.PURA HOBLI, MALAVALLI TALUK. ...RESPONDENTS
(NOTICE SERVED)
THIS R.S.A IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 01.03.2014 PASSED IN
R.A.NO.59/2013 ON THE FILE OF THE I ADDL. DISTRICT AND S.J.,
MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 25.04.2013 PASSED IN
O.S.NO.11/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., MALAVALLI.
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RSA No. 684 of 2014
THIS RSA COMING ON FOR ADMISSION THIS DAY, COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Challenging impugned judgment and decree dated
01.03.2014 passed in R.A.no.59/2013 by I Addl.
District & Sessions Judge, Mandya, dismissing appeal
by confirming judgment and decree dated 25.04.2013
passed in O.S.no.11/2006 by Senior Civil Judge,
Malavalli, appellant has preferred this second appeal.
2. Appellant herein was plaintiff in suit and
appellant in first appeal. Whereas, respondents herein
were defendants no.1 to 3 in suit and appellants in
first appeal. For sake of convenience, parties shall
hereinafter be referred to as per their ranks in suit.
3. O.S.No.11/2006 was filed against defendants
for declaration that plaintiff was absolute owner in
lawful possession and enjoyment of Mangalore tiled
house and vacant site bearing property no.154, janjar
no.136, in all measuring east to west 24ft.; north -
south 68ft., situated at Kodagahalli village, B.G.Pura
RSA No. 684 of 2014
Hobli, Malavalli taluk, bounded as East by
Puttamadaiah's hut, West by House property of
defendant no.1, North by backyard of Mollappa and
South by road, (hereinafter referred to as 'suit
property'). Plaintiff also sought for decree of
permanent injunction restraining defendants from
interfering with his peaceful possession and enjoyment
of suit property.
4. In plaint, it was stated that plaintiff was
absolute owner in law possession of suit property
which was ancestral property of plaintiff and
defendant no.3, his brother. On 01.03.1993, defendant
no.3 executed registered sale deed in favour of
plaintiff with regard to his share in suit property.
Subsequently, plaintiff constructed a new house by
borrowing loan and residing therein peacefully by
paying taxes to grama panchayat.
5. It was further stated by plaintiff that he had
planted one fruit yielding coconut tree in South-West
corner in front portion of RCC house. He stated that
there existed 3 ft. width galli on either side of house.
RSA No. 684 of 2014
It was submitted that defendant no.1 sought to
interfere with plaintiff's possession and caused
disturbance. Plaintiff and his brother filed
O.S.no.121/1992 before Civil Judge (Jr.Dn.) Malavalli.
Against decree in said suit R.A.No.94/1999 was also
filed. But, appeal was dismissed confirming trial court
decree. Thereafter on 11.09.2005 despite resistance
defendants tried to remove coconut tree standing in
front of plaintiff's house. As defendants denied
plaintiff's title, he was constrained to file suit.
6. Despite service of summons, defendant no.3
remained absent and he was placed ex-parte.
Defendants no.1 and 2 filed written statement denying
plaint averments. They contended that after death of
their father - Marimadaiah, defendant no.1 and his
brother Doddamadaiah partitioned old country tiled
house. Defendant no.1 was occupying eastern side and
his brother western side with vacant space towards
northern side bearing property no.155 and junjar
no.137 bounded on East by conservancy and
foundation of plaintiff's house, West by house of
RSA No. 684 of 2014
brother of defendant no.1, North by house of
Lingarajasetty and others, South by road. A rough
sketch marking in green colour was appended. They
contended that both plaintiff and his brother -
defendant no.3 illegally encroached 2ft. width of
conservancy towards western side and dug foundation.
Thereafter they put up construction on encroached
26ft. pathway marked with black colour in rough
sketch. Pathway of 4½ ft. width was thus reduced to
2½ ft. towards southern side. As its original width of
4½ ft. was in existence since time of their grand
father retained for beneficial enjoyment for reaching
backyard and also for passage of light and air etc.
Said right was being enjoyed over period in excess of
100 years and therefore, defendants no.1 and 2
acquired right of easement by prescription without
interruption. It was alleged that plaintiff in collusion
with defendant no.3 illegally encroached pathway
reducing it to 2ft. width virtually obstructing free
passage. Such being case, plaintiff's suit was not only
unwarranted, but also unjustified and maintainable. It
RSA No. 684 of 2014
was also alleged that earlier O.S.no.121/1992 filed by
plaintiff against defendants in respect of same
property was dismissed. Therefore, sought for
dismissal of present suit.
7. Based on pleadings, trial Court framed following
issues:
1. "Whether plaintiff proves his ownership
over suit property situated within the
boundaries as shown in the plaint
schedule?
2. Whether defendant No.1 and 2 prove that
plaintiff has put up construction by
encroaching pathway?
3. Whether defendant No.1 and 2 prove that
they got easementary right over pathway?
4. Whether plaintiff proves alleged
interference by defendant over suit
property?
5. Whether plaintiff is entitled for reliefs as
prayed?
6. What order or decree?"
8. To substantiate his case, plaintiff got himself examined
as PW.1 and another witness as PW.2. Exhibits P.1 to P.16
were marked. Court Commissioner was examined as CW.1 and
Exs.C.1 to C.6 were marked. On behalf of defendants,
RSA No. 684 of 2014
defendant no.1 and another witness were examined as DWs.1
and 2. Exhibits D.1 and D.2 were marked.
9. On consideration, trial Court answered issue nos.1
to 5 in negative and issue no.6 by dismissing suit.
10. Aggrieved by same, plaintiff preferred
R.A.no.59/2013 on several other grounds. It was contended
that trial Court failed to consider oral and documentary
evidence based on which plaintiff was able to prove his
absolute ownership. Trial Court erred in drawing adverse
inference for non-production of licence, which was not relevant
for deciding real dispute. Even though, defendants did not
dispute boundaries and findings of trial Court were in negative
against defendants, trial court instead of decreeing suit,
dismissed it without justification. There was no proper
appreciation of evidence and conclusions drawn were
erroneous, perverse, injudicious and unsustainable.
11. Based on contentions, first appellate Court framed
following points for consideration:
1. "Whether the plaintiff proves his title
and lawful possession within the
boundary shown in the schedule and
thereby entitled for declaration and
injunction sought in the plaint ?
RSA No. 684 of 2014
2. Whether the judgment and decree
passed by the learned trial Judge in
O.S.No.11/2006 dated 25.04.2013 is
illegal, erroneous and unsustainable
under law ?
3.. What order?
12. On re-appreciation, first appellate Court answered
points no.1 and 2 in negative and point no.3 by dismissing
appeal confirming judgment and decree passed by trial Court.
Challenging concurrent findings, plaintiff filed this regular
second appeal.
13. Sri. Jagadeeshwar J., learned counsel for appellant
submitted that impugned judgment and decree passed by both
Courts were against law, facts and evidence on record. They
were based on presumptions and conjectures. First appellate
Court erred in ignoring that suit pathway was part and parcel of
suit property. It also erred in concluding that defendants were
using said pathway to reach their backyard, contrary to
evidence that said pathway was used by all parties. Trial Court
erred in not considering documentary evidence Exs.P.1 to 16. It
erred in noticing that earlier suit in O.S.no.121/1992 was only
for bare injunction. Trial Court erred in noticing that pathway
was used by plaintiff exclusively to reach vacant property
RSA No. 684 of 2014
situated to north of his house. Learned counsel proposed
following substantial question of law for consideration:
"Whether both Courts erred in not
properly considering oral and
documentary evidence of plaintiff while
dismissing suit and appeal?"
14. Heard learned counsel, perused impugned
judgment and decree and record.
15. This is a suit for declaration that plaintiff
was absolute owner in lawful possession and
enjoyment of suit property and for permanent
injunction restraining defendants from interfering with
peaceful possession. To establish his case, plaintiff
examined himself and neighbouring house owner as
PWs.1 and 2. In their deposition, they stated that
defendant no.3 - Shivamurthy executed registered
sale deed dated 01.03.1993, selling his share in suit
property to plaintiff. Ex.P.2 - assessment register
extract was produced to indicate such sale; Tax paid
receipts were produced as Exs.P.3 and P.4 and
encumbrance certificate for period 01.04.1991 to
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RSA No. 684 of 2014
09.05.2000 was produced as Ex.P.5; Photographs were
produced as Exs.P.6 and 7; Ex.P.8 was assessment
register extract of year 2005-06 showing name of
Shivamurthy as owner; Exs.P.10 and 11 were also tax
paid receipts, while Exs.P.12 to 14 were electricity bill
paid receipts and Exs.P.15 and 16 were also
encumbrance certificates. On other hand, defendant
no.1 examined himself as DW.1 and adjacent house
owner as DW.2. Certified copy of judgment and decree
in O.S.no.121/1992 were marked as Exs.D.1 and D.2.
16. The junior engineer of Malavalli was
appointed as Court Commissioner to measure suit
schedule property. He was examined as CW.1. He got
marked his report as Ex.C1, compliance report as
EX.C.2, mahazar as Ex.C.3, sketch as Ex.C.4 and
memo of instructions of plaintiff and defendant no.1
as Exs.C.5 and C.6 respectively.
17. On examination of above, trial Court
determined that dispute between parties was with
regard to boundaries and ownership of suit property.
It compared boundaries mentioned in plaint with that
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RSA No. 684 of 2014
of registered sale deed Ex.P.1 and found that
existence of pathway was not forthcoming in any of
documents produced by plaintiff. Referring to
deposition of PW.1, wherein he claimed existence of
3ft. width pathway, which was fenced by him, but
defendants were using same by removing fence. PW.2
admits defendants were also using pathway.
18. Trial Court referred to Exs.D1 and D.2 -
judgment and decree passed in O.S.no.121/1992 . It
held that said suit filed by plaintiff and his brother
was in respect of same pathway and after appreciating
evidence on record viz., licence issued to plaintiff,
said suit was dismissed and confirmed in appeal. It
drew adverse inference against plaintiff not only for
denying earlier judicial proceedings, but also for not
producing building licence and on said basis proceeded
to conclude that plaintiff failed to prove his ownership
over suit property situated within boundaries shown in
plaint schedule.
Insofar as interference, referring to deposition of
PW.2, wherein he denied knowledge of interference, it
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RSA No. 684 of 2014
answered in negative. Based on said findings it
dismissed suit. First appellate Court referred to
deposition of Court Commissioner and his report,
wherein existence of pathway measuring 24ft. East-
West and coconut tree standing was shown. However,
it held that none of documents produced by plaintiff
established suit pathway as part of suit property
exclusively used by plaintiff. Referring to admission
that pathway was used by defendants also and
dismissal of his earlier suit in respect of same
property, it concluded that plaintiff failed to establish
title and lawful possession. On said reasoning, it
concurred with findings of trial Court.
19. Contentions urged by learned counsel for
appellant are in nature of establishing errors even if
ultimately are held proved. However, Hon'ble
Supreme Court in Hardial Singh Vs. Balbir Kaur and
Another1, has held that even gross errors cannot be a ground
for interfering in second appeal.
2022 SCC Online SC 311
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RSA No. 684 of 2014
20. On perusal of impugned judgment and decree
passed by trial Court and first appellate Court, it is
seen that they have referred to entire evidence on
record. Conclusions drawn are neither perverse nor
capricious. Hence, I do not see any good or sufficient
grounds to interfere with same in second appeal.
Accordingly, appeal is dismissed.
Sd/-
JUDGE
Psg*
