Karnataka High Court
Sri Nanjundaiah vs Smt Rudramma on 9 August, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:28244
RSA No. 1987 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1987 OF 2017 (DEC/INJ)
BETWEEN:
1. SRI NANJUNDAIAH
S/O SRI BASAVANNA,
65 YEARS,
2. SRI M.S. VASANTHAKUMAR
S/O SRI SHIVANNA,
61 YEARS,
BOTH ARE R/AT MUGULURU VILLAGE,
MAYASANDRA HOBLI,
TURUVEKERE TALUK-572221
...APPELLANTS
(BY SRI RAMESH P KULKARNI, ADVOCATE)
Digitally signed
by SHARANYA T
Location: HIGH
COURT OF AND:
KARNATAKA
SMT. RUDRAMMA
W/O SRI ALAGACHAR,
MUGULURU VILLAGE,
MAYASANDRA HOBLI,
TURUVEKERE TALUK-572221
...RESPONDENT
(BY SRI M T RANGASWAMY, ADVOCATE)
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NC: 2023:KHC:28244
RSA No. 1987 of 2017
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT AND DECREE DTD 19.04.2017 PASSED IN
R.A.NO.01/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC., TURUVEKERE AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the
learned counsel appearing for the respective parties.
2. This second appeal is filed against the
concurrent finding of the Trial Court as well as First
Appellate Court. The appellant/plaintiffs have filed the suit
for the relief of declaration and for consequential relief of
injunction claiming that there exists a road as shown in
the plaint rough sketch and they have got absolute right
over the said road situated in the land of the defendant.
Respondent/defendant took the defence that there exists
an alternative road as alleged in the written statement and
the Trial Court having considered the relief sought in the
plaint for declaration examined whether there exists a
road as shown in the plaint rough sketch and also the
NC: 2023:KHC:28244
RSA No. 1987 of 2017
contention of the defendant while answering issue No.3
comes to the conclusion that there exists an alternative
road as alleged in the written statement and also there is
no any pleading in the plaint with regard to that there is
no alternative road to go to the land of the plaintiffs but
the plaintiffs claim the right to go to their land from the
land of the defendant. But, the Trial Court having
considered the material on record dismissed the suit.
Being aggrieved by the said order, an appeal was filed
before the First Appellate Court and the First Appellate
Court also on re-appreciation of both oral and
documentary evidence placed on record formulated the
point that whether the findings of the Trial Court in
dismissing the suit calls for interference and having re-
assessed the oral and documentary evidence comes to the
conclusion that though the plaintiffs have produced the
document at Ex.P1 - original sale deed dated 16.10.1985
wherein there is no mention of existence of the road as
claimed by the plaintiffs and also there is no specific
pleading with regard to any other alternative road and
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RSA No. 1987 of 2017
confirmed the judgment of the Trial Court that there
existing an alternative road. Being aggrieved by the order
of the First Appellate Court, this second appeal is filed
before this Court.
3. The counsel for the appellants would
vehemently contend that both the Courts have committed
an error in coming to the conclusion that the sale deed
executed in favour of the plaintiffs nowhere it is mentioned
that there exists a road and also the counsel would
vehemently contend that the finding of both the Courts
that there exists a separate alternative road is erroneous
and also vehemently contend that both the Courts have
committed an error in not ascertaining from the parties as
to from when the ancestors of the respondents having
access to the original property bearing Sy.No.173 and
according to the respondent, when the second access was
acquired by the appellants and both the Courts have
committed an error in not granting the relief as sought by
the appellants.
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RSA No. 1987 of 2017
4. Having heard the learned counsel for the
respective parties and also on perusal of the material on
record, I have already pointed out that the Trial Court
comes to the conclusion that there is no reference in the
document of sale deed of the plaintiffs with regard to the
existence of road and apart from that both the Court have
comes to the conclusion that there exists a alternative
road. When such being the case, the very contention of
the appellants counsel that both the Courts have
committed and error and ought to have ascertained the
very existence of road which was used by the ancestors of
the respondent and access to the original property bearing
Sy.No.173 and the burden is on the plaintiffs to prove the
same but they failed to do so. On the other hand, the
Court taken note that no such averment in the sale deed
when the sale deed was made in favour of the plaintiffs
with regard to the existence of road and apart from that if
no any alternative road was found, only easementary right
will be granted and it is the duty of the plaintiffs to prove
the same and burden is on them to show that there is no
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RSA No. 1987 of 2017
other alternative road to reach their property. On the
other hand, the defendant has proved that an alternative
road is in existence and the same is considered by both
the Courts and the defendant has proved the same. When
such being the case, the very contention of the appellants'
counsel that both the Courts have committed an error in
dismissing the suit cannot be accepted. Hence, I do not
find any ground to invoke Section 100 of CPC to frame the
substantial questions of law and to admit the appeal.
5. In view of the discussion made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN
