Karnataka High Court
Theresa D'Souza vs Mrs Brizith D'Souza on 11 August, 2023
Bench: H.P.Sandesh
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RSA No. 938 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 938 OF 2023 (INJ)
BETWEEN:
THERESA D'SOUZA
(SINCE DECEASED REPRESENTED BY HER LRS)
1. MATHEW D'SOUZA
AGED ABOUT 52 YEARS,
S/O. THERESA D'SOUZA,
OPP. ST. JOHN'S
EDUCATIONAL INSTITUTIONS,
MAIN ROAD, KURKAL VILLAGE,
SHANKERPURA POST,
KAUP TALUK
UDUPI DISTRICT- 576 101.
2. CLATON D'SOUZA
MAJOR IN AGE,
Digitally signed S/O. CLRARA D'SOUZA,
by SHARANYA T
Location: HIGH VANET FATHIMA HOUSE,
COURT OF AGAROLAGE, KURKAL VILLAGE
KARNATAKA
SHANKERPURA POST,
KAUP TALUK
UDUPI DISTRICT-574 106.
3. FR. ALBAN D'SOUZA
AGED ABOUT 54 YEARS,
PARISH PRIEST STELLA MARIES
CHRUCH, KALMADY,
UDUPI TALUK AND DISTRICT-576 108.
...APPELLANTS
(BY SRI MANU PRABHAKAR KULKARNI, ADVOCATE)
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AND:
1. MRS. BRIZITH D'SOUZA
MAJOR IN AGE,
W/O. GEORGE D'SOUZA,
ROMAN CATHOLIC AND LANDHOLDER,
R/AT KURKAL VILLAGE,
POST SHANKARAPURA,
UDUPI TALUK AND DISTRICT-574 115.
...RESPONDENT
(BY SRI SACHIN B.S., ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 10.02.2023
PASSED IN R.A.NO.5/2020 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND ACJM, UDUPI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 29.11.2019 PASSED IN O.S.NO.192/2011 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellants and learned counsel for the
Caveator - respondent.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that she filed the suit in O.S.No.192/2011
seeking the relief of mandatory and permanent injunction to
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restrain the defendants from interfering with the peaceful
enjoyment of plaint 'B' schedule road or from obstructing the
road in any way by putting fencing wire or any other method
and for mandatory injunction directing the defendants to
remove the granite stone pillars put on the 'B' schedule road or
to remove any other obstruction made over in the plaint 'B'
schedule road.
3. It is the claim of the plaintiff that 'A' schedule
property belongs to her which is allotted in terms of the
partition and she also contend that 'B' schedule property which
belongs to the first defendant is touching Shankarapura main
tar road, including the residential building and other
improvements are all existing on the backside of the first
defendant's 'B' schedule property. One road about 10 feet
width is existing in the 'B' schedule property since the time of
their ancestors of the plaintiff and the defendants to enter into
the property of the plaintiff's 'A' schedule property which runs
from Shankarapura tar road to the 'B' schedule property and
next continues to some portion of one Janet Monisa's land and
thereafter, enter into the land of plaintiff's 'A' schedule
property. The said road is used by the plaintiff to enter into
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their property since the time of her father-in-law and still also
used by herself and her family members. Since 5 days, the
first defendant and her son second defendant are proclaiming
in the locality that they will make some improvements in the
plaint 'B' schedule property and causing obstruction to the
plaintiff to enter into their 'A' schedule property. Hence, filed
the suit for the relief of permanent and mandatory injunction.
4. The defendants appeared and filed the written
statement denying the right claimed by the plaintiff in the suit.
The Trial Court, having considered the pleadings of the parties,
framed the issues whether the plaintiff proves that she is in
possession and enjoyment of plaint 'A' schedule property,
whether the plaintiff proves that there exists a 10 feet width
road in the plaint 'B' schedule property, whether the plaintiff
proves that the defendants have caused obstruction over the
road existing in the plaint 'B' schedule property and also framed
an issue whether the plaintiff is entitled for mandatory and
permanent injunction.
5. The Trial Court also allowed the parties to lead
evidence and accordingly, the plaintiff examined her general
power of attorney holder, who is none other than the daughter-
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in-law as P.W.1 and got marked the documents as Exs.P1 to
P13. On the other hand, the defendants examined three
witnesses as D.Ws.1 to 3 and got marked the documents as
Exs.D1 to D5.
6. The Trial Court, considering both oral and
documentary evidence placed on record granted the relief as
sought by the plaintiff restraining the defendants from
interfering with the peaceful enjoyment of the plaintiff's plaint
'B' schedule road or from obstructing the road in any way by
putting fencing wire or in any other method.
7. Being aggrieved by the said order, an appeal is filed
before the First Appellate Court in R.A.No.5/2020 and the First
Appellate Court also, on re-appreciation of both oral and
documentary evidence placed on record, formulated the points
whether the Trial Court has committed an error in granting an
order of injunction and whether the impugned order suffers
from perversity. The First Appellate Court, on re-appreciation
of both oral and documentary evidence placed on record,
answered point Nos.1 and 2 as 'negative' extracting the
admissions elicited from the mouth of P.W.1, the recitals of the
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document at Ex.P4 and also the evidence of D.W.3 and
dismissed the appeal.
8. Learned counsel appearing for the appellants in his
argument would vehemently contend that in Para No.5 of the
plaint, the plaintiff herself pleads that 'B' schedule property
belonging to the first defendant is touching the Shankarapura
main tar road. The plaintiff's 'A' schedule property including
the residential building and other improvements are all existing
on the backside of the first defendant's 'B' schedule property.
One road about 10 feet width is existing in the 'B' schedule
property since the time of their ancestors of the plaintiff and
defendants to enter into the property of the plaintiff's 'A'
schedule property which runs from Shankarapura tar road to
the 'B' schedule property and next continues to some portion of
one Janet Monisa's land and thereafter, enter into the land of
plaintiff's 'A' schedule property. Hence, cannot claim any relief
when the appellants are not neighbours.
9. The second contention of the learned counsel for
the appellants is that 'B' schedule property leads to the
property of one Janet Monisa and thereafter, the property of
the plaintiff is situated. The counsel also would contend that
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the property of the plaintiff is not adjacent to the 'B' schedule
property which belongs to the first defendant. The counsel
would further contend that power of attorney holder of the
plaintiff is examined as P.W.1 and her evidence is hearsay and
the same cannot be believed and the Trial Court and the First
Appellate Court considered the same and proceeded in an
erroneous approach that the plaintiff has proved the case.
Learned counsel for the appellants would submit that the
plaintiff is claiming easement of grant and not easement of
necessity and the Trial Court committed an error in taking into
consideration Ex.P4-partition deed and it is the easement of
grant and necessity and not the prescription and the same is
erroneous.
10. Per contra, learned counsel for the Caveator-
respondent would vehemently contend that both the Courts
have taken note of very admission given by the witnesses that
'A' schedule property is not touching the main Road and in
order to access the 'A' schedule property, the plaintiff has to
pass through 'B' schedule property. The learned counsel would
vehemently contend that Ex.P4-partition deed is very clear that
in terms of the partition, each of the sharers not to obstruct in
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the enjoyment of other sharers of the property and this aspect
has been taken note by the Trial Court and the First Appellate
Court also taken note of the admission given by the witnesses
i.e., D.Ws.1 and 3 and in this second appeal, the Court cannot
interfere with the concurrent finding, unless the material
evidence is not considered by the Trial Court and the First
Appellate Court. Hence, no ground is made out to admit and
frame any substantial question of law.
11. Having heard the learned counsel for the appellants
and learned counsel for the Caveator-respondent, it is not in
dispute that 'A' and 'B' schedule properties belong to the very
same family and earlier there was partition among them in
terms of Ex.P4-partition deed is not in dispute. The Trial Court,
having taken note of the recitals of the document at Ex.P4,
particularly page No.3 of the document at Ex.P4, comes to the
conclusion that, no doubt, nowhere it is specifically mentioned
about the existence of the road as claimed by the plaintiffs, it
only gives right to use the mamool road or recognize the right
of way of one sharer over the other sharers land for beneficial
enjoyment of their sharers. The defendants further contend
that the said recital is common recital and it can be seen in all
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the documents registered. The defendants further contend that
the intention of Ex.P4 makes it clear that the properties have
been divided so that the parties have exclusive possession and
enjoyment of the same. The defendants contend that their
property had a mud wall on all four sides and there were lots of
mango trees and cashew trees and some portion was also used
for cultivation by the first defendant. However, about 12 years
ago, the first defendant removed the mud wall and fenced the
property with barbed wire fence on all four sides. Therefore,
the question of using the plaint 'B' schedule property as road by
the plaintiff does not arise at all.
12. The Trial Court having taken note of the recitals as
well as the contention of the parties and considering both oral
and documentary evidence placed on record, in Para No.24 of
the judgment, taken note of the document of Ex.P4-partition
deed and also taken note of the fact that a separate pathway is
not provided for plaint 'A' schedule property. Admittedly, plaint
'A' schedule property is not having any access to the main
road. When such being the case, when the parties are using
the same, the Trial Court taken note of the said fact and comes
to the conclusion that though the plaintiff claimed that road
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about 10 feet width is existing in the 'B' schedule property,
since the time of their ancestors of plaintiff and defendants
enter into the property of plaintiff. However, the plaintiff has
not sought the right of way under easement of prescription and
she has sought right under easement of grant under Ex.P4-
partition deed and on the ground of easement of necessity
13. Learned counsel also brought to notice of this Court
that in Para No.10 of the plaint, the very plaintiff has pleaded
that if the above mentioned road is closed, she will be put to
irreparable hardship, loss and injustice. If this road is closed,
the plaintiff has to come to her property by crossing other two
neighbours property. Because of the illegal and unlawful
activities of the defendants, the plaintiff's valuable right will be
obstructed. Hence, the contention that they are not having
access to go to 'A' schedule property cannot be accepted for
the reason that the property belongs to the same family and
rights are given to the parties in terms of partition deed
allowing each and every sharers of the property to enjoy the
same and the said fact is also taken note by the Trial Court and
the First Appellate Court while appreciating both oral and
documentary evidence placed on record.
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14. The First Appellate Court also extracted the
evidence of P.W.1 in Para No.38 and also extracted the very
location of the house in Para No.40 and in Para No.49,
considered the answer given by the witness D.W.3, wherein she
has categorically admitted that in respect of 'A' schedule
property is concerned, there is no way leading to Shankarapura
main road and when these materials are considered by the Trial
Court as well as the First Appellate Court and in detail
discussed the same and there is a concurrent finding, the very
contention of the learned counsel for the appellants that this
Court has to frame substantial question of law and the first
defendant's and plaintiff property are not neighboring
properties cannot be accepted and the other contention that
the easement of grant and necessity cannot be considered in
favour of the plaintiff cannot be accepted and there is no need
that plaintiff and defendants are to be neighbours to have the
access to the property. But, mainly, both the Courts have
relied upon the document of Ex.P4 and its recital made in the
document, there cannot be any obstruction for the other family
members to enjoy and access the property and the Trial Court
rightly directed the defendants/appellants not to cause any
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obstruction to access the road which leads to Shankarapura
main road i.e., in respect of 'A' schedule property of the plaint.
15. Therefore, no ground is made out to invoke Section
100 of CPC as against concurrent finding of the Trial Court and
the First Appellate Court and both the Courts have given
anxious consideration to both oral and documentary evidence
placed on record and comes to the conclusion that the
appellants-defendants are causing obstruction in using the road
which the plaintiff claims. When the material available on
record is considered by both the Trial Court and the First
Appellate Court, I do not find any perversity in the findings of
both the Courts. Hence, it not a fit case to admit and frame
the substantial questions of law.
16. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST
