Karnataka High Court
Basappa Krishnapp Kenchakkanavar vs Gangayya Basavayya Bilagi on 5 April, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RSA No. 1149 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 1149 OF 2006 (DEC/INJ-)
BETWEEN:
BASAPPA KRISHNAPP KENCHAKKANAVAR,
AGED ABOUT 49 YEARS,
OCC: AGRICULTURE,
R/O: JUNNUR, TQ: MUDHOL,
DIST: BAGALKOT - 587103.
...APPELLANT
(BY SRI SIDDAPPA SAJJAN, ADVOCATE)
AND:
1. GANGAYYA BASAVAYYA BILAGI
2. CHANNAPPA YASMANAPPA HEBBALLI
Digitally
signed by 3. VIDYADHAR HANAMAPPA BIDARI
SUJATA
SUBHASH 4. VENKATAPPA GOUDAPPA PATIL
PAMMAR
Location: 5. BASAPPA GOUDAPPA PATIL
HIGH
COURT OF 6. SHIVANAPPA GOUDAPPA PATIL
KARNATAKA
7. TULASIBAI LAXMANAGOUDA PATIL
ALL AGED MAJOR, OCC: AGRICULTURE,
R/O: JUNNUR, TALUK: MUDHOL,
DIST: BAGALKOT - 587103.
...RESPONDENTS
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RSA No. 1149 of 2006
(BY SMT. NIRMALA B.G., ADVOCATE FOR SRI JAGADISH PATIL
AND SRI. K.ANAND, ADVOCATES FOR C/RESPONDENT NO.2
AND 3;
(NOTICE TO RESPONDENTS NO.1, 4, 5 AND 6 ARE SERVED)
(VIDE ORDER DATED 13.11.2007 APPEAL AS AGAINST
RESPONDENT NO.7 - ABATED.)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
28.01.2006, PASSED IN R.A.NO.94/2002, ON THE FILE OF THE
ADDL. CIVIL JUDGE (SR.DN), JAMAKHANDI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 10.04.2002 PASSED IN O.S.NO.132/1999 ON THE FILE
OF THE ADDL. CIVIL JUDGE (JR.DN.), MUDHOL.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is filed by the plaintiff
challenging the Judgment and Decree dated 28.01.2006
passed in Regular Appeal No.94/2002 by the Court of
Additional Civil Judge (Sr.Dn.), Jamakhandi sitting at Mudhol
(for short, 'the first appellate Court') and the Judgment and
Decree dated 10.04.2002 passed in O.S.No.132/1999 by the
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Court of Additional Civil Judge (Jr.Dn.), Mudhol (for short,
'the Trial Court').
2. For the purpose of convenience, the ranking of the
parties is referred to as per their status before the trial
Court.
3. The plaintiff has filed the suit for declaration to
declare that he is having easementary right over the road
shown by letters 'ABCDEF' reaching his land bearing
Sy.No.67/2 of Junnur village, from time immemorial the said
portion of road 'ABCDEF' has been using from time
immemorial, thus acquired easementary right by way of
prescription and by also necessity. The Trial Court has
dismissed the suit on the reason that the plaintiff has
another alternative road to reach his land. It is borne out
from the evidence on record. The said view of the Trial Court
is confirmed by the first appellate Court upon the appeal filed
by the plaintiff. Therefore, the plaintiff has filed this regular
second appeal.
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4. This Court on 13.04.2016 has framed the
following substantial question of law.
"Whether the judgment of the lower
appellate Court confirming the judgment of
the trial Court has resulted due to
misreading of evidence of P.W.2 and
P.W.4?"
5. The learned counsel for the appellant/plaintiff
submitted that the evidence of P.W.2 and 4 is not considered
correctly, as from their evidence it is proved that the plaintiff
is using the said road shown by letters 'ABCDEF'. Therefore,
submitted that there is perversity in the Judgment and
Decree passed by both Courts below.
6. On the other hand, the learned counsel for the
respondents No.2 and 3/defendants submitted that there is
no road in existence and this is rightly considered by the
both Courts below. It is further submitted that the plaintiff
himself has admitted in the cross-examination that to reach
his land there is another road existed. Therefore, the
plaintiff's claim of claiming easementary right over the road
shown as 'ABCDEF' does not arise. Therefore, submitted that
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when there is no proof that existence of road and moreover
the plaintiff admitted there is an another road existed to
reach his land, hence both Courts below after appreciating
evidence on record have concurrently held that the plaintiff is
not entitled any relief as prayed for. Therefore, he prays to
confirm the Judgment and Decree passed by both Courts
below.
7. It is the case urged in this appeal that the evidence
of P.W.2 and 4 are not appreciated correctly. Upon
consideration of evidence of P.W.2 and 4, the P.W.2 and 4
have deposed in tune with the plaintiff's case. Upon
consideration of evidence of P.W.2 to 8, the Trial Court has
found that there is an alternative road to the plaintiff to
reach his land. In what way the evidence of P.W.2 and 4
proves the case of plaintiff is not forthcoming. Quite
naturally the P.W.2 and 4 have deposed in their
examination-in-chief in accordance with plaintiff's case. But
there is no perversity found in appreciating evidence of
P.W.2 and 4. Moreover, P.W.3 has admitted in the evidence
that beside the suit road, there is another road to reach his
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land. But immediately after this evidence, he retracted the
said statement. Therefore, after analyzing the evidence on
record, there is existence of another alternative road for the
plaintiff to reach his land. Therefore, under these
circumstances, easementary right by way of necessity cannot
be granted. In this regard, both Courts below have correctly
appreciated the evidence on record and the said finding of
fact concurrently held by both Courts below is based on the
evidence on record.
8. P.W.5 is none other than brother of the plaintiff. This
P.W.5 in his evidence has admitted that all the owners of
land are using Udagatti road to reach their land and the
owners of the Northern and Southern lands are also using
Udagatti road to reach their lands. Therefore, from this
evidence, it is proved that there is alternative road existing
hence, where there is alternative road is existence as
deposed by the witness of plaintiff themselves, then decree
for easementary right by way of necessity as well as
prescription cannot be granted. It is the case of the plaintiff
as pleaded in the plaint that the plaintiff is entitled for right
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of easement through prescription and also by way of
necessity. It is proved as discussed that there is alternative
way, thus the plaintiff is not entitled for decree of
easementary right by way of necessity. However, there is no
evidence on the part of plaintiffs that the plaintiff and other
adjacent owners of the land have been using the said road
for more than 20 years. It is the case of the plaintiffs that
defendant No.3 is objecting only to the plaintiff but not
objecting to the other land owners. Where there is no
objection to the other land owners making allegation that
defendant No.3 is obstructing only to the plaintiff, it cannot
be believed that there is existence of road as contended by
the plaintiff. Therefore, both the trial Court and First
Appellate Court have correctly appreciated the evidence on
record much particularly correctly considered evidence of
P.W.2 and P.W.4 along with other evidence. Therefore, there
is no perversity found in appreciating the evidence of P.W.2
and P.W.4. The evidence of P.W.2 and P.W.4 are destroyed
by P.W.3 and P.W.5 themselves who have deposed on behalf
of plaintiff. This is rightly considered by the both the trial
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Court and First Appellate Court. Hence, the plaintiff has not
made out case for grant of decree as prayed for. Hence, the
appeal is liable to be dismissed.
9. Having no perversity in appreciating the evidence,
when it is the case of plaintiff that he has acquired right of
easement over the suit road for more than 20 years, then
the plaintiff ought to have pleaded in the plaint, but there is
no such pleading of he is having easementary right over the
suit land, uninterruptedly without any obstruction knowing to
the entire world for more than 20 years. Therefore, in the
absence of necessary pleadings in this regard and proof,
therefore both courts below have correctly dismissed the
suit. There is no substantial question of law involved and
only substantial question of law raised by the plaintiff is that
the evidence of P.W.2 and 4 have been misread. Upon
considering the finding of both Courts below, there is no
perversity in considering the evidence of P.W.2 and 4.
Therefore, I answer the substantial question of law that the
both Courts below have justified in dismissing the suit.
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Accordingly, the appeal is found to be devoid of merits, thus
it is dismissed.
Sd/-
JUDGE
CKK
CT:ANB
