Sri S Puttaswamy vs Sri K C Chindegowda
2023 Latest Caselaw 6801 Kant

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                                                         NC: 2023:KHC:35073
                                                        RSA No. 131 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 26TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO. 131 OF 2023 (INJ)

                   BETWEEN:

                   1.    SRI S. PUTTASWAMY
                         S/O LATE SWATHAPPA
                         AGED ABOUT 71 YEARS

                   2.    SMT. KAMALAMMA
                         W/O S. PUTTASWAMY
                         AGED ABOUT 64 YEARS

                   3.    SRI SIDDEGOWDA
                         S/O S. PUTTASWAMY
                         AGED ABOUT 48 YEARS

                   4.    SRI SURESH
                         S/O S. PUTTASWAMY
                         AGED ABOUT 44 YEARS
Digitally signed
by SHARANYA T
Location: HIGH           ALL ARE RESIDING AT
COURT OF                 KADAHALLI VILLAGE
KARNATAKA
                         SATHANUR HOBLI
                         KANAKAPURA TALUK
                         RAMANAGARA DISTRICT
                                                               ...APPELLANTS
                               (BY SRI THIMMAIAH K.H., ADVOCATE)
                   AND:

                   1.    SRI K.C. CHINDEGOWDA
                         S/O LATE CHINDEGOWDA
                         AGED ABOUT 87 YEARS
                         R/AT KADAHALLI VILLAGE
                         SATHANUR HOBLI
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                                                NC: 2023:KHC:35073
                                               RSA No. 131 of 2023




    KANAKAPURA TALUK
    RAMANAGARA DISTRICT.
                                                     ...RESPONDENT

      THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.09.2022
PASSED IN R.A.NO.4/2021 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, KANAKAPURA, DISMISSING THE APPEAL
AND     CONFIRMING THE JUDGMENT AND DECREE DATED
01.03.2021 PASSED IN O.S.NO.227/2013 ON THE FILE OF THE
C/C I ADDITIONAL CIVIL JUDGE AND JMFC, KANAKAPURA.

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

                          JUDGMENT

This matter is listed for admission. Heard the learned

counsel for appellants.

2. The factual matrix of the case of the plaintiff

before the Trial Court that he is the absolute owner and in

possession and enjoyment of the property bearing

K.No.20-39/1 consisting of house and vacant space

towards eastern side being used as common passage

which is measuring east-west 1 yard and north-south 16

yards. The suit schedule property is the ancestral property

of the plaintiff and it originally belongs to one SIddegowda

who is no more. He has further stated that the above said

NC: 2023:KHC:35073 RSA No. 131 of 2023

Siddegowda had two sons, namely Sri.Kenchegowda who

is the grandfather of the plaintiff and Sri.Siddegowda @

Karigowda who is the grandfather of the defendant No.1.

The sons of said Siddegowda have divided their ancestral

and joint family properties under a registered partition

deed dated 05.11.1930 and in the said partition the house

property consisting of vacant space was fallen to the share

of the father of the plaintiff and since the said vacant

space was being used as a common passage to both the

brothers, it was left for use of fathers of both the plaintiff

and defendant and the same has been mentioned in the

said registered partition deed.

3. He has further stated that on the southern side

of suit schedule property there is a Government road and

from the Government road to the Well situated on the

northern side of the suit schedule property. The suit

schedule property is being used as common passage for

carrying cattles, livestock and to get water from the Well

situated on the northern side of the suit schedule

NC: 2023:KHC:35073 RSA No. 131 of 2023

property. The grandfather of the plaintiff had only son by

name Chindegowda and said Chindegowds has three sons,

namely K.C.Kenchegowda, K.C.Siddegowda and

K.C.Chindegowda who is the plaintiff. The plaintiff and his

brothers have entered into a partition deed dated

02.051976 and in such partition also, the suit schedule

property was described as common passage for taking

ingress and egress from the southern side main road for

the use of both plaintiff and defendants. The plaintiff and

the defendants were using the said common passage for

carrying their cattles and livestock to the backyard on the

northern side and to get water from the Well. He has

further stated on the eastern side of the suit schedule

property the defendants are having their property. The

defendants have no exclusive right and title to the suit

schedule property belonging to the plaintiff. The

defendants are trying to put up construction in the suit

schedule property and to close the suit schedule property

to make unlawful gains and with a malafide intention to

harass the plaintiff and his other family members and the

NC: 2023:KHC:35073 RSA No. 131 of 2023

suit schedule property is the only access to the plaintiff to

go to the backyard for tying the cattles and livestock and

to get water from the well. Hence, filed the suit for the

relief of permanent injunction.

4. In response to the suit summons, the

defendants appeared and filed the written statement and

denied the very averments made in the plaint specifically

with regard to common passage and very existence of suit

schedule property. It is contended that plaintiff has put up

a wall between his house and the house of the defendants

and also altered their country tiled roof by putting

separate entries to ingress and egress from the main road

to the house of the plaintiff and as such, there is no

common passage as contended by the plaintiff. It is

contended that the defendants are in possession and

enjoyment of the house allotted to the share of their

father. It is further contended that there is no well

towards northern side of the suit schedule property and

when such being the case, the plaintiff getting water from

NC: 2023:KHC:35073 RSA No. 131 of 2023

it and carrying cattle and other livestock to the backyard

does not arise. Hence, prayed the Court to dismiss the

suit.

5. The Trial Court, having considered the material

on record, framed the issues with regard to existence of

suit schedule property and whether the plaintiff is in

possession and enjoyment of the suit schedule property

and whether the plaintiff is using the suit schedule

property as common passage by himself and defendants

to have ingress and egress from southern side of the road

to northern side backyard.

6. In order to prove his case, the plaintiff

examined himself as P.W.1 and examined two witnesses

as P.Ws.2 and 3 and got marked the documents as Exs.P1

to P8. On the other hand, the defendant No.1 examined

himself as D.W.1 and examined one witness as D.W.2 and

got marked the documents as Exs.D1 to D5.

7. The Trial Court, having considered the material

on record, granted the relief of permanent injunction in

NC: 2023:KHC:35073 RSA No. 131 of 2023

favour of the plaintiff, in coming to the conclusion that in

view of document of Ex.P1, there is a partition deed and in

the partition deed also, there is a recital with regard to

existence of common passage and use of the same by

both the parties, which has been discussed in Para Nos.11

and 12 of the judgment and taking note of both oral and

documentary evidence placed on record as well as the

evidence of defendants, in Para No.13 of the judgment,

the Trial Court comes to the conclusion that, it is crystal

clear that suit schedule property is in existence and the

same is used as common passage from their ancestors to

access the backyard situated on the northern side from

the main road situated on the southern side and having

considered the material on record, the Trial Court comes

to the conclusion that plaintiff has made out a case for

granting the relief of permanent injunction.

8. Being aggrieved by the judgment and decree of

the Trial Court, an appeal is filed before the First Appellate

Court in R.A.No.4/2021 and the First Appellate Court,

NC: 2023:KHC:35073 RSA No. 131 of 2023

having considered the grounds urged in the appeal,

formulated the points whether the Trial Court committed

an error in not appreciating the documents and oral

evidence on record and whether it requires interference.

The First Appellate Court also, on re-appreciation of both

oral and documentary evidence placed on record,

considering the evidence available on record, in detail

considered the pleadings of both the plaintiff and the

defendants, wherein the defendants took the specific

defence that there is no well and common passage in

existence as contended by the plaintiff and in the cross-

examination, the D.W.1 categorically admitted that there

is a common passage and also admitted the recitals

mentioned in the document of Ex.P1. Though the

defendants pleaded that there is no common passage in

existence, but, in the cross-examination, clearly admitted

that the same was used by both the plaintiff and the

defendants and their ancestors to access backyard

situated on the northern side of the main road and taken

note of both oral and documentary evidence placed on

NC: 2023:KHC:35073 RSA No. 131 of 2023

record and affirmed the judgment of the Trial Court that it

does not require any interference. Being aggrieved by the

judgment and decree of the Trial Court and the First

Appellate Court, the present second appeal is filed before

this Court against the concurrent finding.

9. Learned counsel for the appellants would

vehemently contend that both the Courts committed an

error in appreciating both oral and documentary evidence

placed on record and not justified in granting the relief of

permanent injunction and also failed to take note of the

fact that mere filing of suit for injunction without seeking

the relief of declaration is not sufficient to grant the relief

of permanent injunction. Hence, this Court has to admit

the appeal and frame substantial question of law.

10. Having heard the learned counsel for the

appellants and also considering the grounds urged in the

appeal and also considering the substantial question of law

raised by the learned counsel for the appellants, very

claim of the plaintiff before the Trial Court is that the suit

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NC: 2023:KHC:35073 RSA No. 131 of 2023

schedule property originally belongs to joint family and it

is an ancestral property and there was partition in the year

1930 and in the document of Ex.P1, there is a clear recital

with regard to common passage which is in existence as

contended by the plaintiff and though the defendants

denied in the written statement with regard to the very

existence of well and common passage, the same was

considered by the Trial Court and the First Appellate Court

have considered the admission. Admittedly, the evidence

of P.W.1 is very clear that there was partition among the

brothers representing the father of the plaintiff and also

the defendants and both the Courts have taken note of the

documentary evidence as well as the oral evidence,

particularly, the evidence of D.W.1, wherein he contend

that there is no common passage in existence, however

the same is admitted in the cross-examination and both

oral and documentary evidence placed on record is

considered by the Trial Court and the First Appellate Court.

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NC: 2023:KHC:35073 RSA No. 131 of 2023

11. When such being the case, the very contention

of the learned counsel for the appellants that the Trial

Court ought not to have granted the relief of permanent

injunction in the absence of seeking the relief of

declaration cannot be accepted and the same is only in

respect of using of common passage by both the plaintiff

and the defendants and the recitals of document of Ex.P1

of the year 1930 is also very clear with regard to the

existence of common passage. The counsel would

vehemently contend that though the document of partition

is of the year 1930, subsequently, there are changes and

when the ancestral property was divided among the

members of the joint family. The recitals of the document

of Ex.P1 is very clear that the same has to be used by

both the parties for enjoying property. When such being

the case, the very contention of the learned counsel for

the appellants that there is no well in existence and

common passage cannot be accepted. When both the

Courts have given concurrent finding with regard to the

existence of common passage and well considering both

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NC: 2023:KHC:35073 RSA No. 131 of 2023

oral and documentary evidence placed on record, I do not

find any error committed by the Trial Court as well as the

First Appellate Court and it is not a fit case to invoke

Section 100 of C.P.C. to admit the appeal and frame

substantial question of law as contended by the learned

counsel for the appellants. This Court can exercise the

power under Section 100 of C.P.C., if any finding given by

the Trial Court and the First Appellate Court is against the

material available on record. i.e., both oral and

documentary evidence placed on record and the same is

not warranted in the case on hand, since no perversity.

Accordingly, the appeal is dismissed. In view of

dismissal of the appeal, I.As. if any do not survive for

consideration and the same stand disposed of.

Sd/-

JUDGE

RHS,ST