Setra Gundapnara Kotrappa S/O ... vs Setra Gundapnara Basalingappa ...
2022 Latest Caselaw 7763 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

           DATED THIS THE 31ST DAY OF MAY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

       REGULAR SECOND APPEAL NO.100268 OF 2022

BETWEEN:

  1. SETRA GUNDAPNARA KOTRAPPA
     S/O LATE S. CHINNAPPA
     AGED ABOUT 72 YEARS

  2. SETRA GUNDAPNARA CHANNABASAPPA
     S/O LATE S. CHINNAPPA
     AGED ABOUT 62 YEARS

       BOTH ARE AGRICULTURISTS
       R/O SASALAVADA VILLAGE
       TALUK KUDLIGI
       DISTRICT BALLARI
       PIN 583 124
                                             ...APPELLANTS

(BY SRI P N HATTI AND
 SMT. METI RAJESHWARI, ADVOCATES)

AND:

SETRA GUNDAPNARA BASALINGAPPA
S/O LATE S. CHINNAPPA
AGED ABOUT 82 YEARS
HINDU,
AGRICULTURIST
R/O SASALAVADA VILLAGE
                                    2




TALUK KUDLIGI
DISTRICT BALLARI
PIN 583 124
                                                    ...RESPONDENT

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.12.2020 PASSED IN RA NO.19/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KUDLIGI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.09.2017 PASSED IN ORIGINAL SUIT NO.104/2011 ON THE FILE OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KUDLIGI DECREEING THE SUIT FILED FOR DECLARATION OF EASEMENTARY RIGHT.

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

                             J U D G ME N T

This second appeal is preferred by the defendants,

challenging the judgment and decree dated 14th December, 2020

passed in Regular Appeal No.19 of 2017 on the file of the Senior

Civil Judge and JMFC at Kudligi, confirming the judgment and

decree dated 23rd September, 2017 in Original Suit No.104 of

2011 on the file of the Civil Judge and JMFC, Kudligi, decreeing

the suit of the plaintiff.

2. For the sake of convenience, the parties herein are

referred to with their rank and status before the trial Court.

3. The relevant facts for adjudication of this appeal are

that the plaintiff and the defendants are the children of late S.

Chinnappa of Sasalavada village and the subject matter of the

suit are the ancestral properties of the parties. It is stated in the

plaint that in view of the family dispute between the parties,

defendants 1 and 2 have filed Original Suit No.91 of 2007 before

the trial Court seeking relief of partition and separate possession

of the joint family properties and the said suit was decreed in

terms of the compromise dated 04th October, 2008. It is the

case of the plaintiff that in terms of the compromise petition,

land bearing survey No.386A measuring 4.84 acres was allotted

to the plaintiff and land bearing survey No.386B in an extent of

2.42 acres was allotted defendant No.1 and an extent of 2.08

acres in Survey No.386B was allotted to defendant No.2. The

plaintiff further averred that the land bearing survey No.386 got

divided into survey No.386A measuring 4.84 acres and survey

No.386B measuring 4.50 acres and again the said survey

No.386B got sub-divided into 386B/1 measuring 2.42 acres and

survey No.386B/2 measuring 2.08 acres. Survey No.386A had

fallen to the share of plaintiff and the lands bearing survey

No.386A, 386B/1 and 386B/2 are situated after the tank bund

towards northern side abutting to survey No.384 and 385. The

grievance of the plaintiff is that, in order to reach the land

bearing Survey No.386A, plaintiff has to move from Sasalavada

village on the road which is situated abutting to tank bund (kere

Eri) and same has been shown in the sketch appended to the

plaint as ABCDEFGHI. It is stated in the plaint that ABCDEF is

the existing asphalt road, which is called as Kudligi Road which is

proceeding towards eastern side and FGH is the cart-track

proceeding to the land belonging to the plaintiff. Marking of HI

in the sketch shows the cart-track to reach the land of plaintiff in

survey No386A measuring 4.04 acres. Being aggrieved by the

obstruction made by the defendants 1 and 2 to reach his land

bearing survey No.386A through cart-track, the plaintiff has filed

Original Suit No.104 of 2011 on the file of the trial Court seeking

relief of declaration of easementary right in respect of the suit

schedule land.

4. On service of summons, defendants entered

appearance and defendant No.1 filed written statement denying

averments made in the plaint. Defendant No.2 adopted the

written statement filed by defendant No.1. It is the specific

case of the defendants that the sketch shown by the plaintiff is

incorrect and the correct sketch is no road between point H to I

and the plaintiff is having alternative road to reach his land in

question and therefore, sought for dismissal of the suit.

5. On the basis of the pleadings on record, trial court

framed issues for its consideration. In order to substantiate

their case, plaintiff has examined 3 witnesses as PW1 to PW3

and produced 16 documents and same were marked a Exhibits

P1 to P16. Defendant No.1 was examined a DW1 and produced

two documents and same were marked as Exhibits D1 and D2.

The trial Court, after considering the material on record, by its

judgment and decree dated 23rd September, 2017, decreed the

suit and as such, held that the plaintiff has got easementary

right of way through ABCDEFGHI to reach suit schedule property

bearing survey No.386A through lands of defendants 1 and 2

bearing survey No.386B. Dissatisfied with the judgment and

decree passed by the trial Court, defendants have preferred

appeal in RA No.19 of 2017 before the First Appellate Court and

the said appeal was resisted by the plaintiff. The First Appellate

Court, after considering the material on record, by judgment and

decree dated 14th December, 2020 dismissed the appeal, inter

alia, confirmed the judgment and decree in Original Suit No.104

of 2011 dated 23rd September, 2017. Being aggrieved by the

judgment and decree passed by the courts below, the

defendants have preferred this Second Appeal.

6. Sri P.N. Hatti, learned counsel appearing for the

appellants, argued that both the courts below have not

considered that the plaintiff is having alternative way/road to

reach his land bearing survey No.386A. He further contended

that both the courts below have relied upon the sketch produced

by the plaintiff, without making any discussion on the sketch

made by the defendants to establish right of way in points H to I

and therefore, the finding recorded by both the courts below

require to be set aside in this appeal. He further contended that

trial Court has not properly appreciated the evidence of PWs.2

and 3 in the right perspective and therefore, the judgment and

decree passed by the courts below are required to be interfered

with in this appeal.

7. In the light of the submission made by the learned

counsel appearing of the appellant, I have carefully considered

the finding recorded by both the courts below. It is not in

dispute that the plaintiff and defendants 1 and 2 are the brothers

and they got divided the property in compromise decree on 04th

October, 2008 in Original Suit No.91 of 2007. The core question

to be answered in this appeal is with regard to the fact whether

the plaintiff is having any alternative way to reach his land

(survey No.386A) through the land belonging to defendants. In

this regard, the finding recorded by the trial Court with regard to

issue No.2 requires examination. PW1 is the plaintiff. PWs.2

and 3 are the independent witnesses and the perusal of the

deposition of the PWd1 and 2 would indicate that the

easementary way sought by the plaintiff in ABCDEDFHI is

existing even prior to the filing of the suit. In this regard, PW3

deposed as follows:

"§¸À°AUÀ¥À࣪ À g À ÀÄ vÀªÀÄä ºÉÆ®PÉÌ zÁj EzÉ JAzÀÄ ºÉý F zÁªÉAiÀÄ£ÀÄß ºÁQgÀÄvÁÛg.É £Á£ÀÄ D zÁjAiÀÄ£ÀÄß £ÉÆÃrgÀÄvÉÛãÉ. ¸ÀzÀj zÁjAiÀÄÄ ¸Á¸À®ªÁqÀ¢AzÀ ªÀÄÄRå gÀ¸ÉÛUÉ §AzÀÄ 01£Éà ¥Àwæ ªÁ¢ ªÀÄvÀÄÛ ºÉUÁØ¼ï §¸À¥Àà EªÀgÀ d«ÄãÀÄUÀ¼À ªÀÄzsÀå¢AzÀ ¸Àzj À §Ar zÁj ºÉÆÃUÀÄvÀÛz.É ºÉUÁØ¼ï §¸À¥À࣪ À g À À d«Ää£À ¸Àªð É £ÀA§gï £À£U À É UÉÆwÛ®è.

     ¸Àzj
        À §Ar EzÉ JAzÀÄ ¸ÀPÁðj zÁR¯ÉU¼
                                     À °
                                       À è vÉÆÃj¹gÀÄvÁÛg.É              £Á£ÀÄ

D zÁR¯ÉAiÀÄ£ÀÄß £ÉÆÃrzÉÝãÉ. ¸ÀzÀj §Ar zÁjAiÀÄÄ ªÀÄÄAzÉ ²ªÀ¥ÀÄgÀ UÁæªÀÄzÀ PÀqU É É ºÉÆÃUÀÄvÀÛz.É 01£Éà ¥Àwæ ªÁ¢ ªÀÄvÀÄÛ ºÉUÁØ¼ï §¸À¥Àà EªÀgÀ d«ÄãÀÄUÀ¼À ªÀÄzsÉå AiÀiÁªÀÅzÉà §Ar zÁj E®è JAzÀgÉ ¸ÀjAiÀÄ®è."

8. Perusal of the evidence of PW1 to PW3 would indicate

that it is not in dispute that towards the southern side of the

schedule land, tank bund (keri Eri) is situated. PW2 in his cross-

examination stated about the existence of the cart-track (bandi

jaadu). However, he has further deposed that there is no sketch

to show the said cart-track (bandi jaadu). PW1 and PW2, in

unequivocal terms, have deposed about the fact that ABCDEFGH

is the Government Road and HI is the cart-track and the plaintiff

is using the said road to reach his land in question. The trial

Court has also considered the documents produced by the

defendants, particularly with regard to Exhibit D2-sketch, and

arrived at the conclusion that there was Government Road from

ABCDEFGH to Shivapura village. Taking into consideration the

fact that the schedule property was inherited by the plaintiff and

defendants from their father in Original Suit No.91 of 2007,

through compromise decree dated 04th October, 2008, the

plaintiff has proved the fact of existence of the cart-track as per

Exhibits P10 to P16. Nevertheless, DW1 also admitted that there

was badu in his land and in that view of the matter, I am of the

view that the trial Court has rightly arrived at the conclusion that

the plaintiff has got easementary right to reach suit schedule

land bearing Survey No.386A. I have also carefully considered

the finding recorded by the First Appellate Court, wherein the

First Appellate Court, after re-appreciation of material on record,

has arrived at a conclusion that the plaintiff has no alternative

way to reach the suit schedule land as alleged by defendants and

the finding recorded by the First Appellate Court on point No.2

relating to existence of the cart-track is just and proper and do

not call for any interference in this appeal. In view of the fact

that both the courts below have arrived at the conclusion with

regard to the existence of the cart-track as contended by the

plaintiff in the suit, I am of the view that there is no perversity

or illegibility in the judgment and decree passed by the courts

below. In the result, since the defendants have not made out a

case for framing of substantial question of law as required under

Section 100 of the Code of Civil Procedure, appeal is dismissed

at the admission stage itself. In view of the dismissal of the

main appeal, IA.I of 2022 does not survive consideration.

Sd/-

JUDGE

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