Duryodhan Parasu Kamble vs Padmavathi Gulabrao Desai
2023 Latest Caselaw 229 Kant

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                                     RSA No.100711 of 2014


         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

     DATED THIS THE 4TH DAY OF JANUARY, 2023

                          BEFORE

       THE HON'BLE MR JUSTICE M.G.S. KAMAL

         R.S.A.NO. 100711 OF 2014 (DEC/INJ)

BETWEEN:

1.   SRI DURYODHAN PARASU KAMBLE
     AGED ABOUT 64 YEARS,
     OCC: AGRICULTURE.

2.   SMT.ANUSAYA DURYODHAN KAMBLE
     AGED ABOUT 59 YEARS,
     OCC: HOUSEHOLD WORK.

3.   SRI DNYANESHWAR DURYODHAN KAMBLE
     AGED ABOUT 30 YEARS,
     OCC: AGRICULTURE,

     RESPONDENT NOS.1 TO 3
     R/O DIGGEWADI,
     TQ: RAIBAG, DIST: BELGAUM.

4    SRI SHANKAR UMANA NINGANURE,
     AGED ABOUT 64 YEARS,
     OCC: AGRICULTURE.

5.   SRI SHIVALING UMANA NINGANURE
     AGED ABOUT 71 YEARS,
     OCC: AGRICULTURE.

6.   SMT.SUVARNA SUBRAO NINGANURE
     AGED ABOUT 50 YEARS,
     OCC: AGRICULTURE.

7.   SRI UMESH SUBRAO NINGANURE
     AGED ABOUT 25 YEARS,
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                                       RSA No.100711 of 2014


      OCC: AGRICULTURE.

      RESPONDENT NOS.4 TO 7
      R/O YADRAV, TQ: RAIBAG,
      DIST: BELGAUM.

8.    SRI BHAIRAPPA BALAPPA CHOUGULA
      AGED ABOUT 44 YEARS,
      OCC: AGRICULTURE.

9.    SRI VAKIL BALAPPA CHOUGULA,
      AGED ABOUT 37 YEARS,
      OCC: AGRICULTURE.

      RESPONDENT NOS.8 TO 9
      R/O DIGGEWADI, TQ: RAIBAG,
      DIST: BELGAUM.
                                                ...APPELLANTS
(BY    SRI RAMACHANDRA A MALI, ADV. AND
       SMT.BHAGYASHREE N.B. ADV.)

AND:

1.    SMT.PADMAVATHI GULABRAO DESAI
      AGED ABOUT MAJOR, OCC: HOUSEHOLD WORK,
      R/O.DESAI GALLI,
      NEAR BHAVANI TEMPLE,
      RAIBAG, TQ: RAIBAG,
      DIST: BELGAUM.

2.    SRI RAMA BHIMA GANGAI
      AGED ABOUT MAJOR,
      OCC: AGRICULTURE.

3.    SRI LAXMAN BHIMA GANGAI
      AGED ABOUT MAJOR,
      OCC: AGRICULTURE.

      R/O HALE DIGGEWADI,
      TQ: RAIBAG, DIST: BELGAUM
                                              ...RESPONDENTS
(BY    SRI PUNEET I BADIGER, ADV. FOR
       LAXMAN T MANTAGANI, ADV. FOR R1
       NOTICE TO RESPONDENT NO.2 : HELD SUFFICIENT
       NOTICE TO RESPONDENT NO.3 : SERVED)
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                                     RSA No.100711 of 2014


      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND DECREE DATED 25.02.2009 MADE
IN O.S.NO.256/2005 PASSED BY THE ADDITIONAL CIVIL JUDGE
(JR.DN.) RAIBAG AND AS CONFIRMED BY THE JUDGMENT AND
DECREE DATED 25.09.2014 MADE IN R.A.NO.07/2009 PASSED BY
THE SENIOR CIVIL JUDGE & JMFC, RAIBAG AS THE SAME BEING
ERRONEOUS AND NOT SUSTAINABLE IN LAW.

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


                       JUDGMENT

1. The present appeal is filed by the defendants

aggrieved by the judgment and decree dated 25.02.2009

passed in O.S.No.256/2005 by the Additional Civil Judge

(Jr.Dn.), Raibag (hereinafter referred to as "the Trial

Court" for short) and against the judgment and decree

dated 25.09.2014 passed in R.A.No.07/2009 by the Court

of Senior Civil Judge & JMFC, Raibag (hereinafter referred

to as "the First Appellate Court" for short) in and by which

the First Appellate Court dismissed the appeal and

confirmed the judgment and decree of the Trial Court.

2. Brief facts of the case are as under:

RSA No.100711 of 2014

2.1 The plaintiff filed the above suit for the relief of

declaration and permanent injunction claiming her right to

use the suit property being road measuring 12 feet in

width and 2000 feet in length lying East-West direction

connecting to canal road on the Eastern side and situated

between the lands bearing R.S.Nos.734/5, 735/2/1b/2,

735/2/2b/3, 735/2b/1, 735/1a, 735/1b and 734/4a of

Raibag (hereinafter referred to as "suit road" for short).

2.2 It is the case of the plaintiff that she is the

owner in possession and enjoyment of land bearing

R.S.No.735/1A and other lands of Raibag being her

ancestral properties and she is enjoying the same as

absolute owner thereof. The plaintiff is using suit road to

reach her land from Raibag to Eastern side of the canal

road. Suit road is in existence since beginning and it is

shown in survey records. That it is only road which is

available for the plaintiff to have access to her property

and except the said road there is no other access to her

property.

RSA No.100711 of 2014

2.3 Defendant Nos.1 to 3 are the owners in

possession of the land bearing R.S.Nos.734/5 and

735/2/1b/2 of Raibag. Defendant Nos.5 to 6 are the

owners of R.S.Nos.735/2b/1 and 735/2A. Defendant Nos.7

& 8 are the owners of R.S.No.735/2/2B/3. Defendant

Nos.9 and 10 are the owners of land R.S.No.734/4A and

734/4b and 735/1b. That the lands of defendant Nos.1 to

8 are situated on the Southern side of the suit road and

the lands of defendant Nos.9 and 10 are situated on the

Northern side of the suit road. That the defendants

illegally obstructing the plaintiff from using the suit road

and denying the right of the plaintiff, constraining the

plaintiff to file the above suit for declaration & injunction.

3. Defendant No.1 appeared and filed written

statement which was adopted by defendant Nos.2 to 8.

Defendant Nos.9 & 10 were placed ex parte. While denying

the plaint averments, defendants admit that the plaintiff is

the owner of land bearing R.S.No.735/1A. It is the specific

case of the defendants that, defendant Nos.1 to 3

RSA No.100711 of 2014

purchased the property referred to above in terms of

deeds of sale dated 24.04.1989 and 16.05.1994

respectively from one Smt.Kamalakka Narayan Desai. The

said vendor of the defendants sold 8 feet wide road to the

defendants and it is a private road purchased by the

defendants. The plaintiff misunderstanding the facts filed

the suit. It is further contended that defendant Nos.4 to 6

purchased their portion of the property in terms of deed of

sale dated 16.05.1994 from said Smt.Kamalakka Narayan

Desai along with 12 feet wide road shown in the said deed

of sale for their exclusive utilization and the plaintiff has

no right over the suit road. That the plaintiff has an

alternative road as shown in the survey map hence sought

for dismissal of the suit.

4. Based on the pleadings, the Trial Court framed

the following issues:

1. Whether the plaintiff proves that he has got right of way which is existing on and

RSA No.100711 of 2014

over the lands of defendants, as shown in the hand sketch map enclosed with plaint?

2. Whether the plaintiff further proves that defendants are causing interference as alleged in the plaint?

3. Whether the defendants prove that the plaintiff has got alternative way to proceed to his land?

4. Whether the plaintiff is entitled for the relief sought for?

5. What decree or order?

5. Plaintiff examined her Power Of Attorney as

PW.1, another witness as PW.2 and exhibited 27

documents marked at Exs.P.1 to P.27. Defendant No.1

examined as DW.1, defendant No.4 examined as DW.2

and another witness as DW.3 and exhibited 30 documents

as Exs.D1 to D.30. A commissioner appointed by the Court

examined as CW.1 and 2 documents were marked.

6. On appreciation of the evidence on record, the

Trial Court answered issue Nos.1, 2 & 4 in the affirmative

RSA No.100711 of 2014

and issue No.3 in the negative and consequently decreed

the suit. Being aggrieved by the same, the defendants

filed regular appeal before the First Appellate Court.

7. Considering the grounds urged therein, the First

Appellate Court framed the following points for its

consideration.

1. Whether the trial court has erred in relying on the commissioner report and his evidence?

2. Whether the trial court has erred in not considered that there is no specific pleading by the plaintiff to claim the right of way over the suit road?

3. Whether the trial court has not considered that the plaintiff has got alternative road to approach to her land?

4. Whether the trial court has not properly appreciated oral and documentary evidence of the parties?

RSA No.100711 of 2014

5. Whether the judgment and decree of the trial court is perverse and illegal?

6. Whether the judgment and decree under appeal needs modification at the hands of this Court?

7. What order?

8. On re-appreciation of the evidence and

considering the submissions, the First Appellate Court

answered all the points in the negative and consequently

dismissed the appeal confirming the judgment and decree

passed by the Trial Court.

9. Being aggrieved by the aforesaid concurrent

finding and conclusion of the Trial Court and the First

Appellate Court, the defendants are before this Court.

10. Sri Ramachandra A.Mali learned counsel for the

appellants reiterating the grounds urged in the

memorandum of appeal submitted that, the Trial Court

and the First Appellate Court have misread the evidence

more particularly document at Ex.P.12. It is his case that

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RSA No.100711 of 2014

Ex.P.12 a deed of sale dated 25.04.1989 executed

between Smt.Kamalakka Narayan Desai and defendant

No.1 to 3, which was prior in time reads as under:

"¸ÀzÀjà d«ÄãÀzÀ ¥À²ÑªÀÄQÌgÀĪÀ £À£Àß ªÀiÁ°Ì j.¸À.£ÀA.735/2 F d«ÄäUÉ ºÉÆÃV §gÀĪÀ ¸À®ÄªÁV j.¸À.£ÀA.734/5 EzÀgÀ GvÀÛgÀ ¨ÁdÆzÀ ²ªÉÄÃAiÀÄ°è KAlÄ ¥sÀÆl 8 CUÀ°£À UÁr gÀ¸ÉÛ ¥ÀƪÀð, ¥À²ÑªÀĪÁVzÀÄÝ CzÀjAzÀ £Á£ÀÄ £À£Àß ºÀAiÀiÁwAiÀĪÀjUÉ ªÀ»ªÁl ªÀiÁqÀĪÀ ºÀPÀÌ£ÀÄß £Á£ÀÄ ElÄÖPÉÆArgÀĪɣÀÄ."

11. Referring to the aforesaid recital in Ex.P.12,

learned counsel submits that, the vendor was clear in his

mind while executing the said document that the road on

the Northern side provided was retained only for the

limited purpose, that is, till he alienates remaining portion

of his property to the respective purchasers. It is the

further submission of the learned counsel that, the said

recital has to be read in conjunction with the subsequent

document namely Ex.P.11 a deed of sale dated

16.05.1994 executed between Smt.Kamalakka Narayan

Desai and defendant Nos.4 to 6. In which, though the

Northern side of the property is shown as road, it is

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RSA No.100711 of 2014

mentioned the said road is meant only for the purchasers.

The said recital in Ex.P.11 reads as under:

¸ÀzÀjà d«ÄãÀPÉÌ ºÉÆÃV §gÀĪÀ ¸À®ÄªÁV j.¸À.£ÀA.734/2©/3 EªÀÅUÀ¼À GvÀÛgÀ ¨ÁdÆzÀ ²ÃªÉÄÃAiÀÄ°è zÀQëuÉÆÃvÀÛgÀ ºÀ£ÉßgÀlÄ 12 ¥sÀÆl CUÀ°£À gÀ¸ÉÛ, ¥ÀƪÀð, ¥À²ÑªÀĪÁV ¤ªÀÄUÉ Rjâ PÉÆnÖgÀĪÀ d«ÄãÀzÀªÀjUÉ EzÀÄÝ CzÀjAzÀ ¸ÀªÀiÁ¬ÄÌzÀ°è ªÀ»ªÁl ªÀiÁqÀĪÀ ºÀPÀÄÌ ¸À»vÀ."

12. Thus he submits that, both the Trial Court and

the First Appellate Court have not appreciated the said

recitals in the documents and the wrong construction of

the said documents has led to the wrong judgment and

decree/order giving rise to substantial questions of law.

13. It is his further submission that the plaintiff has

filed the suit without having any legal and statutory right

and the Trial Court and the First Appellate Court without

adverting to this issue grossly erred in decreeing the suit

as sought for.

14. On the contrary Sri Puneet I Badiger learned

counsel for the plaintiff/respondent No.1 submits that the

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RSA No.100711 of 2014

road mentioned in Exs.P.12 and 11 was in existence much

prior to the sale of the property and the same has been

used by the family of the plaintiff. That the property which

was sold by the vendor of the defendant also belongs to

family of the plaintiff. That the plaintiff has retained her

property and the said road is being used by the plaintiff to

have access to her property. There is no other alternate

access to her property. The plaintiff has rightly instituted a

suit seeking declaration and she has specifically averred in

paragraph No.4 of the plaint that the said road is in

existence since the time immemorial and she has been

using the same, therefore the requirement of law is

fulfilled and no illegality or infirmity can be found with the

judgment and decree and orders passed by the Trial Court

and the First Appellate Court.

15. Heard learned counsel for the parties and

perused the records.

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RSA No.100711 of 2014

16. Existence of suit road not in dispute. A perusal

of Exs.P.11 and 12 makes it abundantly clear that the

vendor of the defendants had consciously left 12 feet road

on the Northern side of the property sold by her to

defendant Nos.1 to 6 and the Southern side of the

property to defendant Nos.7 to 10.

17. It is also not in dispute that that the plaintiff

has retained her portion of the property and she has been

using the suit road to reach to the property. Though it is

claimed by the defendants, as insisted emphatically by the

learned counsel for the appellants that, the existence of

the suit road though mentioned in Exs.P.12 and 11, the

usage of same was restricted exclusively to the defendants

being the purchasers of the property and that the suit road

is not a public road. The said submission cannot be

countenanced for more than one reason.

18. Firstly, the vendors of the defendants, as rightly

taken note of by the Trial Court and the First Appellate

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RSA No.100711 of 2014

Court, has not conveyed the suit road in favour of the

defendants. The said road has been kept open to be used

by the Vendor. There is no clause or recital emanating in

the said document to show the said road was exclusively

left and meant to be utilized by the defendants. Even the

conjoint reading of the said documents, as insisted by the

learned counsel for the appellants, would not give any

semblance that the suit road was exclusively kept for the

benefit of the defendants by their vendor or that after the

vendor of the defendants having sold entire property to

the defendants, the usage of the suit road was restricted.

The Trial Court and the First Appellate Court, in the

considered view of this Court, have not committed any

error in reading or construing the contents of Exs.P.11 and

P.12.

19. The holistic reading of the evidence as rightly

appreciated by the Trial Court and concurred and

confirmed by the First Appellate Court would reveal that

the suit road was in existence and the plaintiff who also

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RSA No.100711 of 2014

owns the property and who belong to the family of the

Vendor of the defendants was using the same to have

access her property and accordingly sought for declaration

of her right to use the suit road as being obstructed and

denied of her right by the defendants.

20. The Trial Court and the First Appellate Court

taking into consideration of these factual and legal aspects

of the matter have rightly decreed the suit. No substantial

question of law would arise in the matter. Accordingly, the

appeal is hereby dismissed.

21. In view of dismissal of the appeal,

I.A.No.1/2014 does not survive for consideration and the

same is disposed of accordingly.

sd JUDGE

EM