Karnataka High Court
Sri Gurumurthy vs Sri G Jagadeesh on 7 March, 2023
Bench: H.P.Sandesh
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RSA No. 718 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.718 OF 2020 (INJ)
BETWEEN:
SRI GURUMURTHY
S/O PARAMESHWARAIAH
AGED ABOUT 50 YEARS
OCC. AGRICULTURIST
R/O NELLIKATTE VILLAGE
CHITRADURGA TALUK-577501
...APPELLANT
(BY SRI KANTHARAJAPPA M G, ADVOCATE)
AND:
Digitally signed
by SHARANYA T
Location: HIGH 1. SRI G JAGADEESH
COURT OF
KARNATAKA S/O GURUSIDDAPPA
AGED ABOUT 50 YEARS
2. SRI CHANDRAPPA
S/O NINGAPPA
AGED ABOUT 53 YEARS
3. SMT. NINGAMMA
W/O OBAPPA
AGED ABOUT 60 YEARS
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RSA No. 718 of 2020
4. SRI NINGAPPA
S/O HANUMAPPA
AGED ABOUT 51 YEARS
5. SRI OBANNA
S/O BOSAPPA
AGED ABOUT 56 YEARS
6. SRI SHARANAPPA
S/O THIPPAIAH
AGED ABOUT 45 YEARS
7. SRI KARIYAPPA
S/O OBAPPA
AGED ABOUT 54 YEARS
ALL ARE AGRICULTURISTS
R/O NELLIKATTE VILLAGE
CHITRADURGA TALUK-577501
...RESPONDENTS
(BY SRI NARAPPA K N, ADVOCATE
FOR R1, R2, R5, R6 AND R7)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 18.12.2019
PASSED IN R.A.NO.62/2015 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, CHITRADURGA AND
ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 718 of 2020
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the parties.
2. This appeal is filed challenging the judgment and
decree dated 18.12.2019 passed in R.A.No.62/2015 on the
file of the II Additional Senior Civil Judge, Chitradurga.
3. The factual matrix of the case of the plaintiffs
before the Trial Court that they are the permanent
residents of Nellikatte village, Chitradurga taluk and they are
having agricultural land bearing Sy.No.88/4P1, 88/4P2,
87/1P4, 87/1P2, 87/4P2, 87/3P1, 87/P2 respectively. It is
also the claim of the plaintiffs that all the villagers including
the plaintiffs are making use of AB cart track to reach their
lands as shown in the plaint rough sketch which is morefully
called as suit schedule property. The said suit road
measures about 12 chain and it commences from Huliyalu
village to Nellikatte village and the same is used to carry the
agricultural implements, bullock cart, tractors and other
RSA No. 718 of 2020
vehicles without any interruption or obstructions. The said
fact is in the knowledge of the defendant who is the owner of
land bearing Sy.Nos.88/1, 88/2 and 88/3 of Nallikatte
village. The defendant though has no manner of right over
the suit schedule property, constructing the house in the suit
schedule property without having licence from the gram
panchayath and also to cause inconvenience to the plaintiffs,
encroached the road, put up the stone pillars and fixed the
fence by blocking the road in question. Hence, the plaintiffs
have given an application to the Tahsildar in this regard.
After verifying the records, the Tahsildar directed the
defendant to stop the construction and vacate the said place
for make use of public road and the order of the Tahsildar
was confirmed by the Deputy Commissioner. Inspite of that
the defendant made the construction, as such complaint was
initiated against the defendant in Turuvanuru police station
and advise of elderly persons in the village is went in futile.
Left with no other alternative, the plaintiffs have filed the
suit against the defendant.
RSA No. 718 of 2020
4. In pursuance of the suit summons, the defendant
has filed the written statement contending that the suit is
bad for non-joinder of necessary parties and the suit is hit by
the principles of estopple as already the plaintiffs have filed
the suit against one Smt. Bhagyalakshmi for the same cause
and matter in issue was already decided and this is a second
suit filed by the plaintiffs with a malafide intention to trouble
the defendant. The defendant further contended that there
is no cart track over Sy.No.88 of Nellikatte village and there
is no road to reach the plaintiffs land from the defendant's
land. There are two roads to reach the plaintiffs land i.e.,
one is in the Sy.No.89 which runs east to west having width
of 8¼ feet, as such the suit is not maintainable. The
defendant further contended that he constructed the
residential farm house very long back, due to rainfall, the
said house fell down, as such the defendant repaired and
constructed the house and there is no encroachment of
existing road. Without giving any notice, the Tahsildar had
passed an order and same is not binding on the defendant.
The plaintiffs are not the real owners of adjacent lands and
RSA No. 718 of 2020
they are not entitled for the relief of mandatory injunction
and prayed to dismiss the suit.
5. The Trial Court after considering both oral and
documentary evidence placed on record allowed the suit of
the plaintiffs and restrained the defendant from interfering
and obstructing with the plaintiffs' peaceful possession and
enjoyment of AB path way which passes from Nellikatte
village to Huliyalu village through the defendant's land as
shown in the plaint rough sketch and also directed the
defendant to vacate the AB pathway and accommodate the
same for the usage of plaintiffs, failing which, the plaintiffs
are at liberty to take suitable action to get vacated the AB
pathway through process of this Court.
6. Being aggrieved by the judgment and decree of
the Trial Court, the defendant preferred an appeal in
R.A.No.62/2015. The First Appellate Court on re-appreciation
of both oral and documentary evidence placed on record and
also considered I.A.No.II and the said application was
allowed and dismissed the appeal preferred by the defendant
RSA No. 718 of 2020
and confirmed the judgment and decree of the Trial Court.
Hence, the present second appeal is filed before this Court.
7. The learned counsel appearing for the appellant
would vehemently contend that once the Court has allowed
I.A.No.2, ought to have given an opportunity to prove the
said documents but same has not done. The counsel also
submits that both the Courts having noticed the document at
Ex.D1-photo which pertains to the house of the appellant
and the said photo clearly shows that the residential farm
house was constructed very long back, comes to the
conclusion that no reason is forth coming to believe the
contention of the defendant and decreed the suit of the
plaintiffs hence, the judgment and decree of both the Courts
are erroneous. The counsel vehemently contends that the
owner of the Sy.No.89 is a necessary party as the said
pathway runs in Sy.No.89 also but he has not made as a
party to the proceedings and earlier suit filed against him
was also dismissed. Hence, this Court has to frame the
substantial question of law with regard to whether both the
Courts are right in law in not taking into consideration the
RSA No. 718 of 2020
village map in favour of the appellant and constructed the
residential farm house very long back and both the Courts
disbelieved the evidence of defendant though his evidence is
being supported by Ex.D1 and also both the Courts have
committed an error in considering the documents at Ex.C1 to
C6 and hence, it requires interference of this Court.
8. The learned counsel appearing for the
respondents would submit that the Trial Court after
considering both oral and documentary evidence placed on
record and evidence of the parties, rightly comes to the
conclusion that there is an obstruction by the defendant and
decreed the suit of the plaintiffs and the First Appellate Court
also on re-appreciation of the materials available on record
dismissed the appeal and confirmed the judgment and
decree of the Trial Court hence, no grounds are made out to
admit the appeal and to frame the substantial question of
law.
9. Having heard the respective counsel and also on
perusal of the material available on record, it discloses that
RSA No. 718 of 2020
the plaintiffs relied upon the documents at Ex.P1 to P7 -
RTCs and also the certified copy of the order dated
11.12.1996 of the Tahsildar at Ex.P8, survey sketch at
Ex.P9, representations given to the Tahsildar at Ex.P10 and
P14, photographs at Ex.P11 to P13 and order dated
14.02.1997 at Ex.P15 and also relied upon the document at
Ex.C1-report of the commissioner and the Trial Court in
paragraph 11 taken note of the evidence available on record
particularly, the commissioner's report. The commissioner
also examined as CW1 and marked the documents at Ex.C1
to C6 wherein the commissioner also opined the existence of
pathway in the defendant's land and ascertained its width as
per survey records and he was also cross-examined and
nothing was elucidated to contravene the claim of the
plaintiffs, however the cross-examination exposed some of
the material points regarding the existence of pathway in the
defendant's land. The Trial Court also taken note of the
evidence of CW1 which fortifies the existence of pathway and
the sketch of the commissioner also clearly reveals that in
Sy.No.88 and 89, there is a pathway and the pathway passes
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RSA No. 718 of 2020
from Hullehala village through Sy.No.89 upto FTSR mark in
the sketch. The Trial Court taking note of the survey sketch,
village map and accompanying report of commissioner
comes to the conclusion that the defendant has caused
obstruction in using of AB pathway.
10. The First Appellate Court also on re-appreciation
of both oral and documentary evidence placed on record in
detail discussed in paragraph 23 wherein taken note that in
the earlier judgment of R.A.No.53/2007, the Court was of
the opinion that there is a footpath in the land bearing
Sy.No.89/P2 of Nellikatte village. The First Appellate Court
further taken note of the village map wherein it discloses
that there is a single dotted line passes in the land bearing
Sy.No.88, then enters to Sy.No.89 and again enters the land
bearing Sy.No.87 and then passes towards Huliyalu village
and another single dotted line passes towards Yalagodu
village through the land bearing Sy.No.88 of Nellikatte
village. The single dotted line bifurcated at Sy.No.88 of
Nellikatte village. The First Appellate Court also in detail re-
appreciated the materials available on record, I.A.No.2 and
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RSA No. 718 of 2020
the document pertains to R.A.No.53/2007 and also
O.S.No.99/2005 and comes to the conclusion that Ex.C3
sketch prepared by Court commissioner is in consonance
with the village map of Nellikatte village and on perusal of
Ex.C3 it is evident that defendant had constructed a house in
pathway which passes in the land bearing Sy.No.88/1 and
which runs towards Huliyalu village. The existence of single
dotted line mentioned in Ex.C3 and the village map tallies
with each other and the existence of house is not in dispute.
The defendant contends that the house is constructed very
long back, therefore, there is no obstacle for the plaintiffs to
go to their properties from the road which goes to Yalagodu
village. The said contention is not accepted by the First
Appellate Court and comes to the conclusion that building
constructed by the defendant in Sy.No.88 needs to be
demolished.
11. Having taken note of both the oral and
documentary evidence placed on record it is clear that
footpath is in existence and the defendant is causing
obstruction by constructing the building. Having considered
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RSA No. 718 of 2020
the judgments of both the Trial Court as well as First
Appellate Court it is clear that both the Courts have given
anxious consideration to the material available on record
particularly, the commissioner's repot, sketch and village
map which clearly disclose the interference and causing
obstruction by the defendant and hence, the Trial Court
considering the material available on record directed the
defendant to vacate AB pathway and accommodate the same
for the usage of plaintiffs and also liberty was given to the
plaintiffs to take suitable action with regard to the
construction made in the AB pathway. When the material
available on record discloses the interference on the part of
the defendant and causing obstruction by making
construction, I do not find any error committed by both the
Courts in granting the relief as sought by the plaintiffs.
Thus, there is no merit in the appeal to admit the same and
to frame the substantial question of law invoking Section 100
of CPC.
12. In view of the discussions made above, I pass the
following:
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RSA No. 718 of 2020
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
SN
