C Manju S/O Channaraya Reddy vs Munivenkataramanappa S/O ...
2023 Latest Caselaw 2910 Kant

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                                                  NC: 2023:KHC:19191
                                                     RFA No. 157 of 2008




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 6TH DAY OF JUNE, 2023

                                       BEFORE
                    THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                     REGULAR FIRST APPEAL NO. 157 OF 2008 (DEC)
               BETWEEN:

               1.    C MANJU
                     S/O CHANNARAYA REDDY
                     AGED ABOUT 29 YEARS

               2.    CHANNARAYA REDDY
                     S/O LATE MUNIYAPPA
                     AGED ABOUT 54 YEARS

                     BOTH ARE R/AT NO.19
                     KODIHALLI MAIN ROAD
                     VARTHUR HOBLI
                     BANGALORE SOUTH TALUK
                     BANGALORE-560087.                  ...APPELLANTS
               (BY SRI. K R RAMESH., ADVOCATE)
Digitally      AND:
signed by C
MALATHI
               MUNIVENKATARAMANAPPA
Location:
               S/O MUNIVENKATAPPA
High Court
of Karnataka   AGED ABOUT 55 YEARS
               R/AT NO.115/1, HASB
               KATHA NO.127/121
               KODIHALLI GRAMA TANA
               VARTHUR HOBLI
               BANGALORE SOUTH TALUK
               BANGALORE-560087.                      ...RESPONDENT

               (NOTICE TO RESPONDENT IS H/S)
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                                      NC: 2023:KHC:19191
                                         RFA No. 157 of 2008




     THIS RFA FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED:31.10.2007 PASSED IN
O.S.NO.654/2004 ON THE FILE OF THE I ADDL. CITY CIVIL
AND SESS. JUDGE, BANGALORE (CCH-2), DECREEING THE
SUIT FOR PERMANENT INJUNCTION.

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

This appeal is filed by the defendants under Section

96 of Civil Procedure Code challenging the judgment and

decree dated 31.10.2007 passed by the I Additional City

Civil & Sessions Judge, Bangalore, in O.S.No.654/2004,

whereby the suit filed by the plaintiff is decreed.

2. For the sake of convenience, the parties are

referred to as per their rankings before the trial court.

3. The case of the plaintiff is that he is the absolute

owner of the property bearing Khata No.127/121, new

number 115/1 situated at Kodihalli village, HAL Sanitary

Board area, Varthur Hobli, Bangalore South Taluk,

Bangalore, now coming within the Corporation Ward No.74

of Bangalore Mahanagara Palike, measuring 40 ft x 30 ft.,

as per the 'A' schedule property.

NC: 2023:KHC:19191 RFA No. 157 of 2008

The further case of the plaintiff is that he has

purchased the property by a registered sale deed dated

19.03.1981 from one Yerrappa and from the date of

purchase, he is in physical possession of the suit schedule

property.

It is his further case that towards the southern side

of the 'A' schedule property, there is an existing road,

plaintiff and his family members are continuously using

the said road and that is the only way plaintiff and his

family members ingress and egress and the said road is

shown as 'B' schedule property in the suit.

It is his further case that the defendants while

putting up construction of apartment in their property

bearing Nos.114/1 and 114/2, trying to put a compound

wall on the 'B' schedule property, by which they are

blocking the road to the plaintiff and his family members.

Therefore, plaintiff is constrained to file a suit for

injunction.

NC: 2023:KHC:19191 RFA No. 157 of 2008

4. After service of summons, defendant No.1

appeared through counsel and filed written statement

admitting that the plaintiff is the owner of 'A' schedule

property, but denied the existence of the road on the

southern side of the 'A' schedule property. It is an

admitted fact that the vendor of the 'A' schedule property

one Yerrappa is the grandfather of defendant No.1. It is

further pleaded that towards western side of the plaintiff's

house, there is 4 ft. passage which runs in north - south

direction, which was used by the plaintiff for his ingress

and egress. He has specifically denied that there is a road

towards southern side of the 'A' schedule property.

Hence, he sought for dismissal of the suit.

5. On the basis of the pleadings of the parties, the

following issues were framed before the trial court:

"1) Does the plaintiff prove his lawful possession in respect of 'A' schedule property?

2) Does the plaintiff prove that 'B' schedule property is a road?

NC: 2023:KHC:19191 RFA No. 157 of 2008

3) Does the plaintiff prove that the defendant made attempts to block the 'B' schedule property?

4) What order or decree?"

6. To prove the case, plaintiff examined himself as

PW-1 and Ex. P1 to P19. On behalf of the defendants,

defendant No.1 has been examined as DW1 and the

Executive Engineer of Bangalore Mahanagara Palike as

DW2 and marked Exs. D1 to D5. On consideration of the

oral and documentary evidence, the trial court answered

issue Nos. 1 and 3 in the affirmative and decreed the suit.

Being aggrieved by the same, defendants have filed this

appeal.

7. Learned counsel appearing for the

defendants/appellants contended that there is no road

existing towards southern side of the 'A' schedule

property. In fact, the road is existing on eastern side of

the 'A' schedule property.

NC: 2023:KHC:19191 RFA No. 157 of 2008

Secondly, to resolve the dispute the court appointed

a Court Commissioner. The Court Commissioner has

submitted a detailed report along with the sketch and has

specifically stated that there is no road existing on the

southern side of the 'A' schedule property. The Court

Commissioner's report has not been disputed by the

plaintiff. Even nothing has been elicited by the plaintiff in

the cross-examination of the Court Commissioner.

Thirdly, in the cross-examination of PW-1 he has

categorically admitted that they have an access for ingress

and egress to their house from the eastern side. But the

trial court only on the basis of Ex.P1 - boundary has

decreed the suit.

Fourthly, the trial court has wrongly held that even

as per the boundary in Ex.D4, north side there is a road.

In fact, the said deed - Ex.D4 is rectified by Rectification

Deed at Ex.D5 wherein it is clearly mentioned that on the

northern side there is a road as well as properties of

NC: 2023:KHC:19191 RFA No. 157 of 2008

plaintiff, but the trial court has failed to consider this

aspect of the matter. Hence, he sought for allowing the

appeal.

8. The plaintiff/respondent served and

unrepresented.

9. Heard the learned counsel for the appellants.

Perused the impugned order and the original records.

10. The points for consideration in this appeal are,

"(1) Whether the judgment and decree passed by the trial court is erroneous and perverse and calls for any interference from this Court?

(2) Whether the trial court is justified in holding that 'B' schedule property is the road, in the facts and circumstances of the case?"

11. It is not in dispute that the plaintiff is the owner

of 'A' schedule property and he purchased the same by a

registered sale deed dated 19.03.1981. The only dispute

NC: 2023:KHC:19191 RFA No. 157 of 2008

in this case is regarding whether there is a road existing to

southern side of the 'A' schedule property?

12. The first defendant filed a written statement and

categorically stated that in the sale deed - Ex.P1, the

boundary has been wrongly shown that to the southern

side of 'A' schedule property there is a road existing. He

has also categorically stated that the road is existing only

on the eastern side of the 'A' schedule property. The

defendant also filed an application - IA No.4 before the

trial court for appointment of a Court Commissioner. The

trial court by order dated 07.06.2004 has allowed IA No.4

filed by the defendant under Order 26 Rule 1 of CPC and

appointed a Court Commissioner to find out whether there

is any road existing on the southern side of the 'A'

schedule property. On the basis of the order passed by

the trial court, the Commissioner has filed a report. He has

categorically stated that there is no road existing on the

southern side of the 'A' schedule property. But on the

other hand, there is a road situated towards eastern side

NC: 2023:KHC:19191 RFA No. 157 of 2008

of the 'A' schedule property and he has also produced the

sketch. The plaintiff has not filed any objection to the

Commissioner's report. The Commissioner has been

examined as DW2. In his evidence he has re-iterated the

statement made in the report. In the cross-examination

of DW2 by the plaintiff, nothing worthwhile information

has been elicited in favour of the plaintiff. But, the trial

court without considering this aspect of the matter only on

the basis of boundary shown in Ex.P1 has held issue No.2

in the affirmative.

13. The plaintiff has been examined as PW1. In the

cross-examination of PW1 by the defendant it is clearly

admitted that, "I have not left any setback on any side of

my house. Main door of my house is facing towards

eastern side. That is the only door for us to ingress and

outgress of my house. On eastern side of my house, there

is a road. The said road runs from north to south."

Therefore, it is clear that there is no road existing on the

southern side of the 'A' schedule property.

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NC: 2023:KHC:19191 RFA No. 157 of 2008

14. The trial court, relying on Exs. D4 and D5 has

wrongly come to the conclusion that there is a road

existing on the southern side of 'A' schedule property. In

fact, Ex.D4 is the gift deed wherein it is shown that there

is a road existing on the northern side of the defendant's

property. By rectification deed they have added that on

the southern side along with the road, there is a property

of the plaintiff existing. By looking at the sketch produced

by the Court Commissioner it is very clear that there is a

road existing in the northern side of the defendant's

property and also plaintiff's 'A' schedule properties, there

is no road existing on the southern side of the 'A' schedule

property. This fact has not been noticed by the trial court

and it has erred in coming to the conclusion that there is a

road existing on the southern side of the suit 'A' schedule

property. The finding of the trial court is contrary to the

evidence of the parties and the materials available on

record. Hence, the judgment and decree passed by the

trial court is erroneous and requires to be set aside.

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NC: 2023:KHC:19191 RFA No. 157 of 2008

15. Accordingly, the appeal is allowed. The

judgment and decree dated 31.10.2007 passed in

O.S.No.654/2004 on the file of the I Addl. City Civil &

Sessions Judge, Bangalore is set aside. The suit filed by

the plaintiff is dismissed.

Sd/-

JUDGE

CM