Ganapati S/O Vinayak Bhat vs Narayan S/O Krishna Hegde
2023 Latest Caselaw 7762 Kant

                                                   -1-
                                                              NC: 2023:KHC-D:13389
                                                            RSA No. 5343 of 2011




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                             DATED THIS THE 17TH DAY OF NOVEMBER, 2023
                                                BEFORE
                                 THE HON'BLE MR JUSTICE H.P.SANDESH
                       REGULAR SECOND APPEAL NO. 5343 OF 2011 (DEC/INJ)


                      BETWEEN:
                      GANAPATI S/O. VINAYAK BHAT
                      AGE: 41 YEARS, OCC: AGRICULTURIST,
                      R/O: BOLGERE OF SALKOD,
                      TQ: HONAVAR, DIST: UTTAR KANNADA-581334.
                                                                      ...APPELLANT
                      (BY SRI.RAMESH I.ZIRALI, ADVOCATE)


                      AND:
                      NARAYAN S/O. KRISHNA HEGDE
                      AGE: 58 YEARS, OCC: AGRICULTURIST,
                      R/O: BOLGERE OF SALKOD VILLAGE,
                      TQ: HONAVAR, DIST: UTTAR KANNADA-581334.
                                                                   ...RESPONDENT
                      (BY SMT.GAYATRI S.K., ADVOCATE FOR
                         SRI.M.B.HIREMATH, ADVOCATE)

Digitally signed by
KM                           THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING
SOMASHEKAR
Location: HIGH
COURT OF              TO, SET ASIDE THE JUDGMENT AND DECREE DATED 31.08.2010
KARNATAKA
DHARWAD BENCH
Date: 2023.11.21
14:52:09 +0530
                      PASSED IN RA 402/2001 ON THE FILE OF SENIOR CIVIL JUDGE
                      HONAVAR REVERSING THE JUDGMENT AND DECREE DATED
                      21.07.2001 PASSED IN OS 246/1994 ON THE FILE OF ADDL.
                      CIVIL JUDGE JR.DN. HONAVAR ALLOWING THE TOP NOTED
                      APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY.


                             THIS RSA, COMING ON FOR FINAL HEARING, THIS DAY,
                      THE COURT DELIVERED THE FOLLOWING:
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                                           NC: 2023:KHC-D:13389
                                         RSA No. 5343 of 2011




                           JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for the respondent.

2. This second appeal is filed against the judgment

and decree of the First Appellate Court reversing the

finding of the trial Court and granting relief of injunction as

sought by the plaintiff.

3. This Court having considered the grounds urged

in the second appeal, vide order dated 08.09.2015 framed

the following substantial questions of law:

"1. Whether the lower Appellate Court is justified in reversing the judgment and decree of the Trial Court in view of paragraph No.6 of the written statement and evidence of P.W.1?

2. Whether the lower Appellate Court is justified in reversing the judgment and decree of the Trial Court granting the relief in favour of the plaintiff, when the defendant has not at all denied the right of the respondent in the written statement?

3. Whether the lower Appellate Court justified in reversing the judgment and decree of the Trial Court in the facts and circumstances of the present case?"

NC: 2023:KHC-D:13389 RSA No. 5343 of 2011

4. The learned counsel appearing for the appellant

would vehemently contend that the trial Court having

considered the pleadings of the parties, framed issues and

dismissed the suit of the plaintiff. There is no dispute with

regard to the claim of the plaintiff and issue No.1 to 3

which have been framed by the trial Court. The only

dispute is with regard to granting of relief by the Appellate

Court by answering the points for consideration. In respect

of issue No.4, the defendant did not dispute the right of

the plaintiff in respect of the suit 'A' schedule property

belonging to the plaintiff and also there is no dispute that

in order to reach 'A schedule property, there exists 8 feet

width lane in 'B schedule property and the said lane is

having compound on its either side as alleged in the plaint.

5. The counsel would submit that there is no

dispute that both plaintiff and defendant are using the said

lane for more than 50 years continuously, openly without

any obstruction and with the knowledge of the defendant,

their ancestors and public at large in order to take men

NC: 2023:KHC-D:13389 RSA No. 5343 of 2011

and cattle to reach the PWD road as alleged in the

complaint. He contend that in spite of an admission given

by PW.1 in the cross-examination that at any point of time

the defendant not caused any obstruction, the First

Appellate Court proceeded to pass an order by making an

observation that when the trial Court answered issue

Nos.1 to 3, the trial Court committed an error in rejecting

the relief of permanent injunction and the First Appellate

Court ought not to have granted the relief of injunction by

answering issue only on the ground that issue Nos.1 to 3

held as affirmative.

6. The counsel would vehemently contend that

when there is no any interference or obstruction, no cause

of action arises for the plaintiff to file a suit for injunction.

Categorical admission is given that till filing of the suit

there was no such obstruction. Hence, the trial Court has

rightly rejected the claim made by the plaintiff in the

original suit and the First Appellate Court ought not to

have granted the relief.

NC: 2023:KHC-D:13389 RSA No. 5343 of 2011

7. No doubt, this Court also having considered the

defence taken in paragraph No.6 of the written statement

and also the evidence of PW.1, framed the substantial

questions of law.

8. With regard to granting of relief in favour of the

plaintiff when the defendant is denying the right of the

respondent in the written statement, counsel appearing for

the respondent brought to note of this Court paragraph

No.4 of the written statement filed by the defendant,

wherein a specific defence is taken that the plaintiff has to

prove that he is having right in respect of lane and right

and he has to prove that except the said road there is no

other road and the same has been denied.

9. Counsel would vehemently contend that in

paragraph No.6 contrary defence was taken stating that at

no point of time any threat was caused and removed any

pipe and the same is contrary to each other. Counsel

would vehemently contend that taking into note of the

contention raised in the written statement in paragraph

NC: 2023:KHC-D:13389 RSA No. 5343 of 2011

Nos.4 and 6, the First Appellate Court has rightly comes to

the conclusion that the plaintiff has made out a case for

granting the relief of injunction.

10. Having considered the substantial questions of

law which have been extracted above and also considering

the material on record and also in view of the submissions

of the counsel for the appellant that there is no dispute

with regard to issue No.1 to 3 that the plaintiff is the

owner of 'A' schedule property and also there exists 8 feet

width lane in 'B' schedule property of the defendant and

also parties have continuously using the same openly and

when such submission is made by the counsel for the

appellant that the plaintiff is also using the said 8 feet

width lane which is in existence of 'B' schedule property

i.e. on the property of the defendant and no doubt PW.1

also in the cross-examination categorically admitted that

till filing of the suit no such obstruction was caused, the

trial Court has rightly rejected the suit for injunction and

First Appellate Court has erred in reversing the said finding

NC: 2023:KHC-D:13389 RSA No. 5343 of 2011

in coming to the conclusion that as issue No.1 to 3 are

answered as affirmative, the trial Court ought not to have

granted the relief of injunction.

11. Having perused the pleadings, particularly

paragraph No.6 of the written statement of the appellant,

it is categorically stated that they never caused any

obstruction for usage of the said lane and no doubt in

paragraph No.4 it is contended that existence of lane as

well as right of easement has to be proved. The Court has

to take note of paragraph Nos.4 as well as 6 and also the

admission given by PW.1. Hence, it is clear that there is no

any obstruction as admitted by PW.1 also and also in

pleading of written statement of appellant. Hence, the

judgment and decree of the trial Court as well as First

Appellate Court have to be modified in view of the fact

that there is no dispute between the parties that there

exists lane in 'B' schedule property which belongs to the

defendant.

NC: 2023:KHC-D:13389 RSA No. 5343 of 2011

12. Further, the appellant - defendant also not

disputing issue Nos.1 to 3 and existence of lane and using

of the lane by plaintiff openly and continuously. When such

pleading and evidence is available on record and also in

view of submission of counsel for the appellant that they

will not cause any obstruction or interference in respect of

using of the said 8 feet width lane by the plaintiff in future

also and in view of the fact that existences of lane in the

property of the defendant is also very clear and the same

is also not disputed by the plaintiff, it is appropriate to

modify the decree holding that the plaintiff is having right

to use the said lane which covers 8 feet width.

13. Under these circumstances, either the plaintiff

or the defendant not to reduce the width by making any

alteration and the said 8 feet width lane which is in

existence in 'B' schedule property could be used by the

plaintiff also forever in view of the submission of the

counsel for the appellant. Accordingly, the judgment and

decree of the trial Court and the First Appellate Court are

NC: 2023:KHC-D:13389 RSA No. 5343 of 2011

modified in terms of the respective submissions of the

parties.

14. It is also made clear that either of the parties

not to create any right in respect of 8 feet width lane,

which is not disputed by both the parties and they are

using the same continuously and openly.

15. In view of the foregoing, the substantial

questions of law framed by this Court are answered

accordingly.

16. Hence, I pass the following:

ORDER

The second appeal stands disposed of in terms of the

above observation.

Sd/-

JUDGE

SH