Karnataka High Court

Shri Uday S/O Vishnu Revankar vs Shri Kishore S/O Dattatraya Haldnakar on 11 December, 2023

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                                                           NC: 2023:KHC-D:14504
                                                             RSA No. 100975 of 2023




                                     IN THE HIGH COURT OF KARNATAKA
                                             DHARWAD BENCH

                                DATED THIS THE 11TH DAY OF DECEMBER, 2023
                                                   BEFORE
                                 THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
                             REGULAR SECOND APPEAL NO.100975 OF 2023 (INJ)
                        BETWEEN:
                        1.   SHRI. UDAY S/O. VISHNU REVANKAR
                             AGE: 51 YEARS, OCC: ADVOCATE,
                             R/O: "VIMALESHWAR" CTS NO. 462A/1/1
                             R.SY.NO 722/2/5/2A, PAWAR CHAWL,
                             VACCINE DEPOT ROAD, TILAKAWADI
                             BELAGAVI TQ. AND DIST. BELAGAVI-590006.
                        2.   SMT. UJWALA S/O. UDAY REVANKAR
                             AGE: 43 YEARS, OCC: BUSINESS AND HOUSEHOLD,
                             R/O: "VIMALESHWAR" CTS NO.462A/1/1
                             R.SY.NO 722/2/5/2A, PAWAR CHAWL,
                             VACCINE DEPOT ROAD, TILAKAWADI
                             BELAGAVI TQ. AND DIST. BELAGAVI-590006.
                                                                      ...APPELLANTS
                        (BY SRI SANTOSH B.RAWOOT, ADVOCATE)
                        AND:
                        SHRI KISHORE S/O. DATTATRAYA HALDNAKAR
           Digitally
                        AGE: 60 YEARS, OCC: SERVICE,
           signed by
           VISHAL
                        R/O. "VIMALESHWAR" CTS NO. 462A,
VISHAL     NINGAPPA
NINGAPPA   PATTIHAL     PAWAR CHAWL, VACCINE DEPOT ROAD,
           Date:
PATTIHAL
           2023.12.14   TILAKAWADI, BELAGAVI TQ AND
           11:36:09
           +0530        DIST. BELAGAVI-590006.
                                                                        ...RESPONDENT
                        (BY SRI SACHCHIDANAND B.PATIL, ADVOCATE)

                              THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
                        OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGEMENT
                        AND DECREE DATED 15.09.2023 PASSED IN R.A.NO.42/2023 ON THE
                        FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
                        MAGISTRATE, BELAGAVI, DISMISSING THE APPEAL AND CONFIRMING
                        THE JUDGMENT AND DECREE DATED 05.01.2023 PASSED IN O.S.
                        NO.418/2017 ON THE FILE OF THE IV ADDITIONAL CIVIL JUDGE AND
                        JUDICIAL MAGISTRATE FIRST CLASS, BELAGAVI, DISMISSING THE SUIT
                        FILED FOR PERMANENT INJUNCTION.
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                                    NC: 2023:KHC-D:14504
                                      RSA No. 100975 of 2023




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


                        JUDGMENT

The present second appeal by the plaintiffs assailing

the concurrent findings of facts of the Courts below,

whereby, the suit seeking for permanent injunction in

respect of the suit passage was dismissed.

2. The parties herein are referred to as per their

ranking before the Trial Court for the sake of convenience.

3. Suit property is bearing CTS No.462A/1/1

formed in R.S.No.722/2/B/2A bearing CCB No.190

measuring East-West 49.8 feet in length and North-South

6 feet in width, stated as an approach passage to the main

building of the plaintiffs in CTS No.462A/1/1. It is averred

that the plaintiffs are the absolute owners in possession

and vahivat of the suit property and an approach passage

is meant exclusively for their use and enjoyment for

approaching their residential house, which is situated

towards the Western side of the suit passage. It is further

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stated that the suit property has been purchased under

the registered sale deed dated 16.07.2016 from his

erstwhile vendor and they are put in possession as owners

of the property. It is further averred that O.S.No.651/2005

was filed by vendor of the plaintiffs against the defendant

in respect of the portion measuring East-West 5 feet in

length and North-South 2.5 feet in width situated in CTS

No.462 formed in R.S.No.72/2/5/2A and the suit came to

be decreed in favour of his vendor. It is the specific case

of the plaintiffs that the suit passage is only of the

ownership of the plaintiffs and is their exclusive use and

the defendant has no right over the suit schedule property

nor his vendor has a common right on the said passage.

4. Pursuant to the suit summons issued by the

Trial Court defendant appeared and filed his written

statement, inter-alia, contending that suit of the plaintiffs

is not maintainable. The defendant admitted that the

defendant purchased CTS No.462/A measuring 1322

Sq.feet under a registered sale deed in the year 1997 and

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also admitted about the suit in O.S.No.651/2005 filed by

the vendor of the plaintiffs against the defendant. What

was contended by the defendant is that earlier suit

O.S.No.651/2005 was in respect of 5 feet X 2.5 feet

situated to the western side of the residential house in

occupation of the defendant in part of CTS No.462 and the

vendor of the plaintiffs has admitted that the passage in

the present suit measuring 6 feet X 49.8 feet is kept

common. It is specifically stated that the judgment placed

reliance by the plaintiffs that the subject matter in

O.S.No.651/2005 and the issue involved in the present

suit are totally different and the present suit is in respect

of a passage measuring 6 feet X 49.8 feet, which is a

common passage for use and enjoyment of the plaintiffs

and defendant.

5. The Trial Court on the basis of pleadings framed

the following issues:

1. Whether the plaintiffs prove that they are in possession of the suit passage measuring North to South 6 feet and East to West 48.5 feet in CTS No.462A/1A out of R.S.No.722/2/5/2A?

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(Whether the plaintiffs prove that, the suit passage is in exclusive use and possession by them as alleged in plaint?)

2. Whether the plaintiffs prove that the defendant is interfering and obstructing over their peaceful possession and enjoyment over suit passage?

3. Whether plaintiffs are entitled for the relief as sought for?

6. In order to substantiate their claim, plaintiff

No.1 examined himself as PW.1 and got marked

documents at Exs.P.1 to P.34. On the other hand,

defendant examined himself as DW.1 and got marked

documents at Exs.D.1 to D.12.

7. The Trial Court on basis of the pleadings, oral

and documentary evidence, arrived at a conclusion that:

(i) The plaintiffs have failed to prove that they

are in possession of the suit passage as

absolute owners.

(ii) The plaintiffs have failed to prove that the

defendant is obstructing and interfering with

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the peaceful possession and enjoyment of

the suit schedule property.

By judgment and decree, the Trial Court dismissed

the suit of the plaintiffs for permanent injunction.

8. Feeling aggrieved by the judgment and decree

of the Trial Court plaintiffs have preferred a regular appeal

before the First Appellate Court. The First Appellate Court

while re-appreciating and reconsidering the entire oral and

documentary evidence independently, concurred with the

judgment and decree of the Trial Court. Aggrieved by

which the present second appeal by the plaintiffs against

concurrent finding of facts.

9. Heard Sri Santosh B.Rawoot learned counsel

appearing for the appellants and Sri Sachchidanand

B.Patil, learned counsel appearing for the respondent.

10. The dispute is in respect of the suit passage

measuring North-South 6 feet in width and East-West 49.8

feet in length in CTS No.462A/1/1 formed out of

R.S.No.722/2/B/2A of Angol. The plaintiffs' vendor had

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filed suit O.S.No.651/2005 against the defendant herein

seeking for a declaration that he has acquired title by way

of adverse possession over the property, i.e., EFGH as

mentioned at Sl.No.2 of the plaint in O.S.No.651/2005 to

the extent of East-West 5 feet in length and North-South

2.5 feet in width. The said suit came to be decreed and

declared that the plaintiff has acquired the title over the

suit property EFGH as mentioned at Sl.No.2 of the plaint

by way of adverse possession. In the said suit, it was

observed by the Trial Court at page No.18, which reads as

under:

"It is clear cut recital about the passage measuring 6x49.8' has sold to the present plaintiff. But, previous vendor has kept common right on the said passage. It does not mean that, the present defendant is also having same right over the said passage for using the same as common passage. It is personal right of the previous owner. The present defendant is not having any such right over the said passage."

(Emphasis supplied)

11. Perusal of the findings in O.S.No.651/2005,

there is a reference made about the passage measuring

6x49.8' that has been kept common by the previous

vendor and that was the basis for the Trial Court in the

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said suit to arrive at a conclusion that the plaintiff therein

i.e., the vendor of the plaintiffs has got right over the

property mentioned in O.S.No.651/2005. The sketch in

O.S.No.651/2005 is reproduced as under for reference:

HANDSKETCH DEPICTING THE LOCATION OF SUIT PROPERTY A B

SUIT PROPERTY-

RESIDENTIAL BUILDING GROUND AND ST 1 FLOOR OF PLAINTIFF IN PART OF CTS NO. 462, SY. NO. 722/2/5/2A ANGOL BELAGAVI D C ENTRANCE DOOR OF PLAINTIFF'S HOUSE

PORCH E F RCC WALL PARTLY CONSTRUCTED