Mr. Hariram Shenoy vs P Kamala Padiyar
2023 Latest Caselaw 307 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 5TH DAY OF JANUARY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                   R.S.A.NO.1404 OF 2019

BETWEEN:

1.     MR. HARIRAM SHENOY,
       S/O. LATE G.D. SHENOY,
       AGED ABOUT 74 YEARS,
       CHARTERED ACCOUNTANT,
       NEAR VIJAYA CLINIC,
       BUNTS HOSTEL ROAD,
       MANGALURU-575 003.

2.     MR. UMESH SHENOY,
       S/O. LATE GOPALKRISHNA SHENOY,
       AGED ABOUT 74 YEARS,
       RESIDING AT KADRI HILL ROAD,
       MUNDANA,
       MANGALURU-575 004.                   ... APPELLANTS

            [By Ms. ANNU BHARADWAJ, ADVOCATE]

AND:

1.     P. KAMALA PADIYAR,
       D/O. MAROOR VENKATARAMANA PAI,
       AGED ABOUT 80 YEARS,
       KADRI HILL ROAD,
       D.NO.3-3-104004,
       MANGALURU-575 004.

       REPRESENTED BY GPA HOLDER
       MR. M. MANJUNATH PAI,
       S/O. LATE M.V.PAI,
                                   2



      AGED ABOUT 70 YEARS,
      D.NO.3-3-104,
      KADRIKAMBLA ROAD,
      MANGALURU-575 004.

      SINCE DEAD R1 IS REPRESENTED BY
      HER LEGAL REPRESENTATIVE

R1(1) SRI. SUNIL PADIYAR,
      S/O. LATE KAMALA PADIYAR
      ADULT,
      R/AT. 170/28, 1ST FLOOR,
      4TH MAIN, 14TH CROSS,
      VYALIKAVAL, BENGALURU-560 003.                ... RESPONDENTS

    [BY SRI. G.RAVISHANKAR SHASTRI, ADVOCATE FOR R1(1)]

     THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED:16.04.2019
PASSED IN R.A.NO.126/2012 ON THE FILE OF THE I ADDL.
SENIOR CIVIL JUDGE, MANGALURU, D.K., DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED:22.11.2012 PASSED IN O.S.No.664/1995 ON THE FILE
OF THE I ADDL. CIVIL JUDGE AND JMFC., MANGALURU, D.K.

    THIS R.S.A., COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Though this matter is listed for admission

today, with the consent of both the learned counsel it is taken up

for final disposal.

2. Heard the learned counsel appearing for the

appellants/defendants and the learned counsel appearing for

respondent No.1(1)/plaintiff.

3. This appeal is filed challenging the judgment and

decree dated 16.04.2019 passed in R.A.No.126/2012 on the file

of the I Additional Senior Civil Judge, Mangaluru, D.K.

4. The factual matrix of the case of the plaintiff before

the Trial Court is that her vendors had granted the easement

right to draw water from the well and also a right to approach

road in order to take the water from the well and exclusive

possession and enjoyment of 'A' schedule property of the plaint

and the defendants are causing interference in respect of

availing the water from the well and also causing obstructions to

the pathway. Immediately within three days of filing the suit, the

defendants highhandedly and illegally constructed a compound

wall blocking the pathway leading to the well and there is an

obstruction to get the benefit as mentioned in the Sale Deeds.

Hence, sought for the relief of mandatory injunction to remove

the obstruction.

5. The defendants in pursuance of the suit summons

had appeared and filed the written statement contending that

the first defendant is not the owner or occupier of the property

in question. The second defendant is the brother-in-law of first

defendant, who is the Deputy General Manager of Canara Bank

at Bengaluru. He has not interfered with the alleged rights of

the plaintiff. The wife of the first defendant is the owner of the

site immediately to the north of the plaintiff's property. The

second defendant is the owner of the site on the west of the

plaintiff's property. The plaintiff is a Mulagenidar of 'A' schedule

property and hence she cannot assert easement right over the

property of second defendant who is the owner of property

purchased by him as per Sale Deed dated 18.09.1993.

However, the defendants admit the existence of the well but

deny the right of the plaintiff to draw water from the well. The

second defendant does not admit the alleged easement right of

the plaintiff over the well and pathway and denied the contention

of the plaintiff.

6. The plaintiff in order to prove her contentions

examined the power of attorney holder as P.W.1 and got marked

the documents as Exs.P1 to P10. On the other hand, the second

defendant examined himself as D.W.1 and got marked the

documents as Exs.D1 to D5(a).

7. The Trial Court after considering both oral and

documentary evidence available on record, allowed the suit and

directed the defendants to remove obstruction caused to the

pathway passing through the property of second defendant,

leading to the Well situated in his property within three months

from the date of its judgment and also restrained from blocking

or interfering with the use and enjoyment of the pathway leading

to the well and drawing water from the well. Being aggrieved by

the judgment and decree of the Trial Court, the defendants had

filed an appeal in Regular Appeal No.126/2012 before the First

Appellate Court. The First Appellate Court on re-appreciation of

both oral and documentary evidence placed on record and also

the grounds urged in the appeal formulated the points viz.,

whether the defendants have made out sufficient grounds to

allow the appeal and whether the judgment of the Trial Court is

illegal, capricious and opposed to law and answered both the

points as negative and concurred with the findings of the Trial

Court. Hence, the present second appeal is filed before this

Court.

8. The main contention of the learned counsel

appearing for the appellants is that they are not disputing the

right given to the plaintiff for using the well. But learned counsel

would vehemently contend that the well is situated by the side of

the road and no need to come through the land of the

defendants and there is a separate access to the well and these

defendants have not caused any obstruction to avail the water

from the well. The learned counsel also would vehemently

contend that the easement of necessity extinguished on account

of proving alternative pathway by the respondent-vendor and

the Trial Court ought not to have granted the relief of mandatory

injunction and also based on the ex-parte report of the Court

Commissioner, the Trial Court granted the relief as sought by the

plaintiff and even the plaintiff has not been examined; only the

power of attorney has been examined before the Trial Court and

the Trial Court has committed an error in decreeing the suit.

9. The learned counsel appearing for the appellants

would vehemently contend that the First Appellate Court has not

appreciated the material available on record with proper

perspective. When there was an alternative road available to

access the well, the First Appellate Court ought not to have

granted the relief and there are substantive questions of law to

frame the same and to consider the matter. Hence, both the

Courts have committed an error.

10. Per contra, learned counsel appearing for respondent

No.1(1) would submit that the plaintiff is not seeking any relief

of easement right based on the prescription on the ground that

there is no any alternative pathway but right is given under the

Sale Deeds itself which are marked as Exs.P5 and P6. The

learned counsel also would submit that clause No.7 is very clear

with regard to the right given to access the well as well as use

the pathway with minimum distance and also it is brought to the

notice of the Trial Court that immediately after filing of the suit,

the compound wall was constructed.

11. The learned counsel also brought to the notice of this

Court that the Commissioner was appointed and the

Commissioner also given a report stating with regard to the

existence of well and pathway and also the erection of compound

wall and no objection was filed to the Commissioner's report.

Now cannot contend that the Commissioner report is an ex-parte

report. Both the Courts have considered the material available

on record and not given any perverse finding. Only in a

concurrent finding if both the Courts have not considered the

material available on record and a perverse finding is given then

the Court can exercise the jurisdiction invoking Section 100 of

CPC. Hence, no grounds are made out to invoke Section 100 of

CPC.

12. Having heard the respective counsel and also on

perusal of the material available on record, there is no dispute

with regard to the fact of existence of well and that the right of

pathway was given in terms of the documents - Exs.P5 and P6.

It is also not in dispute that the plaintiff and defendants have

purchased the property from the vendors of plaintiff. The

vendors are common. The learned counsel appearing for the

plaintiff brought to the notice of this Court that the Sale Deed

executed in favour of the plaintiff is earlier Sale Deed and

subsequently, the defendants purchased the property. There is

a force in the contention of the learned counsel for the plaintiff

that when the right is given under the Sale Deed to access the

well and use the pathway and the fact that the defendants have

constructed a compound in causing obstruction is also noticed by

the Court Commissioner. Admittedly, the defendants have not

filed any objections to the Commissioner report and now cannot

contend that the report is an ex-parte report and both the Trial

Court as well as the First Appellate Court taking into note of both

oral and documentary evidence as well as the report of the Court

Commissioner came to the conclusion that defendant No.2,

particularly causing obstruction to access the well and using the

pathway. The Clause No.7 is very clear that the pathway is at

the minimal distance. When such being the material available

on record when the right is given under the documents in terms

of Exs.P5 and P6, the causing of obstruction by the defendants is

nothing but preventing the plaintiff in availing the water from the

well and approaching the well in a minimum distance. When

such being the material available on record and when both the

Courts have applied their mind and given the finding based on

both oral and documentary evidence as well as the

Commissioner report, the very finding cannot be termed as

perverse in nature. The contention of the learned counsel

appearing for the appellants is that the ex-parte report of the

Commissioner was relied upon by the Trial Court as well as the

First Appellate Court cannot be accepted. The First Appellate

Court also on re-appreciation of the evidence available on

record, particularly the issues and the additional issues, which

have been framed by the Trial Court and answered the same as

affirmative. The First Appellate Court on the basis of the

grounds urged in the appeal memo, formulated the point Nos.1

and 2 and answered the same as negative and not find any error

committed by the Trial Court in coming to such a conclusion that

the obstruction was caused to the plaintiff's right, which has

been confirmed as per Exs.P5 and P6.

13. I have already pointed out that the defendants have

not dispute the fact that the right was confirmed as per Exs.P5

and P6 by the vendors of the plaintiff and the document also

reveals the same and rightly pointed out by the learned counsel

appearing for the respondent that it is not a right of prescription

and right was given under the documents-Exs.P5 and P6. When

such being the material available on record, I do not find any

grounds to frame any substantial questions of law and the

material on record only appreciated by the Trial Court that too

particularly the documentary evidence available on record-

Exs.P5 and P6. Hence, no grounds in the second appeal to

frame substantial questions of law and admit the appeal.

14. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

In view of dismissal of the appeal, I.A.No.1/2020 for stay

does not survive for consideration, the same stands disposed of.

Sd/-

JUDGE

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