M V Panchaksharaiah vs Smt Kudri Savanthavva
2023 Latest Caselaw 117 Kant

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                                                                        RSA No. 46 of 2008


                               IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                      DATED THIS THE 3RD DAY OF JANUARY, 2023

                                                         BEFORE
                                        THE HON'BLE MR JUSTICE M.G.S. KAMAL
                                REGULAR SECOND APPEAL NO. 46 OF 2008 (DEC/INJ-)
                               BETWEEN:

                               M V PANCHAKSHARAIAH S/O. MARISWAMAIAH,
                               AGED ABOUT 60 YEARS, R/O-RAMANAGAR,
                               HAGARIBOMMANAHALLI, DISTRICT BELLARY-583101.

                                                                               ...APPELLANT

                               (BY SRI.SANJAY S KATAGERI,
                                SRI.MAHANTESH C KOTTURSHETTAR,
                                SRI.SADIQ N GOODWALA, ADVS.)

                               AND:

                               1.   SMT KUDRI SAVANTHAVVA
                                    W/O. LATE SIDDAPPA, AGED ABOUT 66 YEARS,
                                    OCC: AGRICULTURIST, R/O. RAMANGARA,
                                    HAGARIBOMMANAHALLI, BELLARY DISTRICT-583101.

                               2.   SMT KUDRI VASANTHAVVA
                                    D/O. LATE SIDDAPPA, AGE 35 YEARS,
            Digitally signed
            by ROHAN
            HADIMANI T
                                    R/O. RAMANAGARA, HAGARIBOMMANAHALLI,
                                    BELLARY DISTRICT-583101.
         Location: HIGH
ROHAN    COURT OF
HADIMANI KARNATAKA
T        DHARWAD
         Date:
            2023.01.07
            13:24:49
            +0530

                                                                            ...RESPONDENTS

                               (BY SRI.S N BANAKAR, ADV. FOR R1 & R2)

                                     THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT &
                               DECREE DT.16.8.2007 PASSED IN R.A.NO.22/2006 ON THE FILE OF
                               THE PRL. CIVIL JUDGE (SR.DN) AND JMFC, HOSPET, ALLOWING THE
                               APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
                               DT.17.1.2006 PASSED IN O.S.NO.73/2004 ON THE FILE OF THE
                               CIVIL JUDGE (JR.DN), H.B.HALLI.
                                 -2-




                                             RSA No. 46 of 2008


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

1. Present appeal is by the plaintiff being

aggrieved by the judgment and order dated 16.08.2007

passed in R.A.No.22/2006 on the file of the Principal Civil

Judge (Sr.Dn.) and JMFC, Hospete (hereinafter referred to

as 'the First Appellate Court'), in and by which the First

Appellate Court while allowing the appeal filed by the

defendants set aside the judgment and decree dated

17.01.2006 passed by the Civil Judge (Jr.Dn.), H.B.Halli in

O.S.No.73/2004.

2. The aforesaid suit in O.S.No.73/2004 was filed

by the plaintiff for relief of declaration of his right over the

property delineated as 'ABCD' road and for mandatory

injunction, directing the defendants to remove basement

wall constructed on the property delineated as 'EFGH', on

the premise, that he is the absolute owner in peaceful

possession and enjoyment of the land bearing

Sy.No.660/AE1 which is described as 'A' schedule property

RSA No. 46 of 2008

in the plaint. That towards Southern side of the said

property, plots have been formed and there is road on the

Eastern side commencing from Halagapur road. That the

plaintiff required to reach his land from Southern to

Northern side after crossing the said Halagapur road. That

in between the plots Nos.40, 26, 54 and 39, there exists a

60 feet road through which the plaintiff has to reach to his

property. Except the said road, there is no other

alternative access to reach his property.

3. That the defendants are the mother and

daughter, who are living in a joint family and have no right

or interest over the said road, except between the

aforesaid plots. That the defendants have constructed a

house, portion of which is on the said road. That the

construction made by the defendants is illegal and

obstructing access of the plaintiff. Hence, the suit.

4. On service of summons, defendants filed

written statement denying the plaint averments. It is

specifically contended that the suit is also hit by principles

RSA No. 46 of 2008

of res-judicata in view of the decree passed in suit in

O.S.Nos.65/2002 and 66/2002. It is contended by the

defendants that they are the absolute owners of plots

No.98A and 98B and that except the road, there is nothing

in between the said plots as claimed by the plaintiff. That

the defendants have constructed only fencing wall on their

plots and the plaintiff has no locus standi to question the

same.

5. Based on the pleadings, the Trial Court framed

the following issued:

"1) Whether the plaintiff proves that the existence of Rasta measuring 60 feet wide as shown ABCD in the Hand sketch map?

2) Whether the plaintiff proves that he has got right of easementary over the ABCD Rasta as shown in the hand sketch map?

3) Whether the plaintiff proves that defendants have illegally undertaken work of construct on over the portion of rasta which is shown in EFGH of handsketch map?

4) Whether the defendants proves that the suit is hit by the principles of res judicata ?

RSA No. 46 of 2008

5) Whether the plaintiff is entitled the relief of Mandatory injunction?

6) Whether the plaintiff is entitled the relief of declaration?

7) What order or Decree ?"

6. The plaintiff examined himself as PW1 and

exhibited 10 documents marked as Ex.P1 to Ex.P10 and

examined 3 witnesses as PW2 to PW4. Defendant No.1

examined himself as DW1 and exhibited 15 documents

marked as Ex.D1 to Ex.D15.

7. On appreciation of evidence, Trial Court has

answered issues No.1, 2 and 6 in the Affirmative and

issues No.3, 4 and 5 in the Negative and consequently

passed the judgment and decree declaring that the portion

of the land shown as 'ABCD' in the rough sketch, which is

a 60 feet road and that the plaintiff having right to way

over the said road. However, relief of mandatory

injunction for removal of alleged construction of basement

wall by the defendants on the portion shown as 'EFGH' was

RSA No. 46 of 2008

rejected. Being aggrieved by the same, defendants filed

regular appeal in R.A.No.22/2006 before the First

Appellate Court considering the grounds urged in the

memorandum of appeal. The First Appellate Court framed

the following points for its consideration and answered the

same in the affirmative, allowed the appeal and set aside

the judgment and decree passed by the Trial Court:

1) Whether the suit is hit by principles of Res-

judicata?

2) Whether the impugned judgment and decree requires any interference by the Court?

3) What order?

8. Being aggrieved by the same, the plaintiff is

before this Court.

9. This Court while admitting the appeal framed

the following substantial questions of law:

1. Whether the First Appellate Court was right in reversing the decree of the Trial Court on the ground of res- judicata is a question of law?

2. Whether the principle of res-judicata applies to the parties in respect of the same parties with a different suit

RSA No. 46 of 2008

properties as considered by the First Appellate Court is a question of law?

3. Whether the First Appellate Court was justified in reversing the decree of the Trial Court on the principles of res- judicata applicability?

4. Whether a right of way as necessity can be claimed once a public road is a question of law?

10. Sri.Sanjay S Katageri, learned counsel for the

appellant reiterating the grounds urged in the

memorandum of appeal submitted that the First Appellate

Court grossly erred in accepting the contention of

defendants that all the issues have been answered in the

previous suit and therefore the suit was barred by

principles of res-judicata. The said finding without any

elaboration cannot be sustained. That the said finding

given by the First Appellate Court is contrary to material

evidence produced on record. That the subject matter of

the present suit out of the earlier suit was completely

different and as the earlier suit pertains to plot Nos.98A

and 98B, the pleadings and the evidence produced in the

RSA No. 46 of 2008

said suit are also completely different. In that view of the

matter, learned counsel submits that the judgment and

order passed by the First Appellate Court is erroneous.

11. Sri.S.N.Banakar, learned counsel for the

respondents on the other hand submits that the issue

involved in the earlier suit and the present suit is one and

the same. The issue was one with respect of 60 feet wide

road which was determined in the earlier suit as well. He

submits that in that view of the matter, there is no

illegality committed by the First Appellate Court in allowing

the appeal and setting aside the judgment and decree

passed by the Trial Court. Learned counsel also submits

though the plaintiff has claimed right of way by way of

easementary right but has not shown as to in respect of

which property the right of way is claimed.

12. Heard the learned counsel appearing for both

the parties and perused the records.

13. The First Appellate Court has taken into

consideration the fact that defendant No.1 in the present

RSA No. 46 of 2008

suit had filed suit in O.S.No.65/2002 and defendant No.2

in the present suit had filed suit in O.S.No.66/2002 against

the present plaintiff in respect of plots bearing No.98A and

98B respectively. It was the contention of the defendants

who are the plaintiffs in the said suits that they are the

owners and in possession of their respective plots, to

which the plaintiff herein had contended that there are no

such plots in existence but the same is 60 feet wide road,

which is shown as letters 'ABCD' in hand sketch enclosed

to the present suit. The said suits were decreed as per

Exs.D12 and D15 holding the same to be plots bearing

No.98A and 98B and there was no road as such.

14. Aggrieved by the said judgment and decree, the

plaintiff herein had filed appeals which were also disposed

of confirming the judgment and decree passed in the said

suits. The plaintiff in the present suit had carried the same

in the second appeal before this Court. Taking into

consideration all these aspects, the First Appellate Court

came to the conclusion that the issue already having been

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RSA No. 46 of 2008

adjudicated and decided by a competent Court of law, the

present suit on the same aspect of the matter in respect of

the same subject matter and against the same parties was

hit by principles of res-judicata. Based on the aforesaid

reasoning, the First Appellate Court came to the conclusion

that the reasoning given by the Trial Court was

unsustainable and the same was without reference to the

earlier adjudication and conclusion of the matter arrived in

O.S.Nos.65/2002 and 66/2002.

15. In view of the above reasoning the substantial

questions of law framed as above are required to be

answered in the affirmative. The First Appellate Court has

appreciated the facts and legal aspects of the matter in

right prospective warranting no interference. Appeal is

therefore dismissed.

16. In view of the above, pending applications, if

any, do not survive for consideration.

Sd/-

JUDGE