Karnataka High Court
Sheik Yusuf Saheb vs Sheik Mohammed Saheb on 5 April, 2024
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RSA No. 394 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 394 OF 2015 (INJ)
BETWEEN:
SHEIK YUSUF SAHEB,
S/O LATE SHEIK HASSAN SAHEB,
AGED ABOUT 63 YEARS,
R/O SEEMA MANZIL, TELLAR,
DURGA VILLAGE,
KARKALA TALUK.
...APPELLANT
(BY SRI. MADHUKESHWARA, ADVOCATE FOR
SRI. SACHIN B.S., ADVOCATE)
AND:
SHEIK MOHAMMED SAHEB,
Digitally S/O LATE SHEIK HASSAN SAHEB,
signed by R AGED ABOUT 67 YEARS,
MANJUNATHA
R/O K.M. MANZIL,
Location:
HIGH COURT KELAGINA MAPHILA,
OF TELLAR, DURGA VILLAGE,
KARNATAKA KARKALA TALUK - 571 249.
...RESPONDENT
(BY SRI. H. JAYAKAR SHETTY, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 20.11.2014 PASSED IN
R.A.NO.106/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE &
ACJM, KARKALA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 8.8.2007 PASSED IN
O.S.NO.127/2005 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN) KARKALA.
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RSA No. 394 of 2015
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is filed challenging the
judgment and decree passed in RA No.106/2007 dated
20.11.2014 on the file of Senior Civil Judge and ACJM,
Karkala, confirming the judgment and decree dated
08.08.2007 passed in O.S.No.127/2005 on the file of
Principle Civil Judge (Junior Division), Karkala.
2. For the sake of convenience, parties are
referred to as per their ranking before the Trial Court. The
appellant is the plaintiff and respondent is the defendant.
Plaintiff filed a suit for mandatory injunction and
permanent injunction against the defendant.
3. The brief facts leading rise to filing of this
appeal are as under:
It is the case of plaintiff, that plaint 'A' schedule
property was granted by the Land Tribunal, Karkala under
the Karnataka Land Reforms Act and reserving therein the
ancient existing mamool passage to the plaintiff to gain
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access to his agricultural properties. The order passed
with the consent of the defendant, who is none other than
the elder brother of the plaintiff. The defendant was
granted some land by the Land Tribunal. In the said
order, the passage stated above has been specifically
reserved setting out 0.01 cent of land in Sy.No.93/10B
upon which the said ancient mamool passage exists. The
width of the said passage is 12 ft. and the plaintiff and his
men are using the same for ingress and egress from his
house situated in Sy.No.318/9P6 to reach his agricultural
lands. As per the annexed sketch, the plaint 'A' schedule
passage commences from Karkala to Tellar Main Road on
the west and proceeds towards east, through the plaint 'A'
schedule property and the plaint 'A' schedule property is
the middle portion of Sy.No.93/10 and is denoted as
Sy.No.93/10B. It is contended that, the defendant has
been on inimical terms with the plaintiff. The defendant
started interfering and obstructing the plaint 'A' schedule
property and now the said passage is down by 5 ft. The
plaintiff lodged a complaint before the police and the
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police could not take any action against the defendant for
restoration of the passage. Hence, the plaintiff filed the
present suit.
4. Defendant filed written statement denying the
averments made in the plaint. It is contended that
defendant is in possession and enjoyment of the land in
Sy.No.93/10A measuring 0.24 acre along with other items
of the properties. It is contended that, the property is
owned by the plaintiff and defendant, belonged to their
father. The plaintiff and defendant were in joint cultivation
of the said properties belonged to their father. During the
lifetime of their father, they orally divided and effected the
partition of the entire properties, belonged to their father.
It is contended that the plaint 'A' schedule property was
allotted to the share of plaintiff. It is also admitted
regarding the grant made in favour of plaintiff and
defendant by the Land Tribunal. It is contended that, the
plaintiff is intending to form a new passage directly from
his house to the cultivable field by forming a passage over
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the land of the defendant. It is contended that, the said
footpath is in existence at the northern end of the plot in
Sy.No.93/10A which belongs to the defendant and the
defendant for the last more than 30 years, has been using
the footpath of 3 ft. in width, to approach the land for
cultivation. It is contended that, the plaintiff is trying to
form a passage in the middle of Sy.No.93/10A and only
with an intention to cause a loss and damage to the
defendant. There is no question of claiming any passage
in the middle of the plot of the defendant. Hence, there is
no cause of action arises for the plaintiff to file a suit. The
cause of action shown in the suit is imaginary and false.
Hence, prays to dismiss the suit.
5. The Trial Court on the basis of pleadings of the
parties, framed the issues.
6. In order to substantiate the case of the plaintiff,
he himself got examined as PW.1 and later on his wife was
examined as PW.2 and one more witness examined as
PW.3 and got marked 20 documents as Ex.P1 to P20. In
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rebuttal, the defendant examined himself as DW.1, one
more witness was examined as D.W.2 and got marked 7
documents as Ex.D1 to D.7.
7. During the pendency of the suit, the Trial Court
appointed a Court Commissioner i.e., ADLR Surveyors and
they were examined as C.W.1 and C.W.2 and got marked
documents as Ex.C.1 and Ex.C.2 respectively.
8. The Trial court on the assessment of the oral
and documentary evidence, partly decreed the suit of the
plaintiff and the Trial Court moulded the relief and ordered
and granted a decree for permanent injunction restraining
the defendant from interfering with or obstructing the free
user of alternative road/passage as shown in the
commissioner's sketch i.e., Ex.C.2 at point 'C' to 'B' and
also directed the defendant to arrange for avoiding mud
slice from the said alternative road/passage. He shall fix
stone revets towards the southern side of the said
road/passage. It is also directed to the defendant that he
shall not claim any right over the north eastern portion of
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the alternative road/passage. He shall dedicate the same
to the alternative road/passage and further, the defendant
shall maintain the alternative road/passage if necessary in
future. The defendant is also having right to use the said
alternative passage.
9. The plaintiff aggrieved by the judgment and
decreed passed by the Trial Court in O.S.No.127/2005,
preferred an appeal in R.A.No.106/2007 on the file of
Senior Civil Judge and ACJM, Karkala.
10. The First appellate Court after hearing the
learned counsel for the parties and on re-assessment of
the oral and documentary evidence, dismissed the appeal
vide judgment dated 20.11.2014 confirming the judgment
and decree passed by the Trial Court.
11. Being aggrieved by the judgments and decree
passed by the Courts below, plaintiff filed the regular
second appeal.
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12. Heard the learned counsel for the
plaintiff/appellant.
13. Learned counsel for the appellant/plaintiff
submits that the defendant has admitted that Sy.No.93/10
to the extent of 1 cent road has been earmark in favour of
plaintiff and the Courts below did not consider the said
aspect and further, submits that the plaintiff has produced
the additional evidence before the First Appellate Court
and the First Appellate Court without properly examining
the said aspect, has proceeded to pass the impugned
judgment by rejecting the said application. Hence, the
judgments and decree passed by the Courts below are
arbitrary and erroneous. Hence, on these grounds prays
to allow the appeal.
14. Perused the records and considered the
submissions made by the learned counsel for the
appellant/plaintiff.
15. The Trial Court considering the commissioner's
report and evidence of P.W.2 held that the plaintiff's house
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is situated on the northern side in Sy.No.318/9 which is
abutting to Karkala to Tellar. The passage of 12 ft. x 15
ft. which is shown in blue colour from the 'R' to 'A' and
land in Sy.No.93/10 is situated on the eastern side of
Sy.No.318/9. From the perusal of the commissioner's
report, it is clear that there is no road of width 12 ft. in the
middle portion of Sy.No.93/10 as contended by the
plaintiff. Further, the material evidence on record do not
support the case of the plaintiff that there is a road in the
middle of the land bearing Sy.No.93/10.
16. Both the Courts below have concurrently
recorded a finding of fact that the plaintiff has failed to
prove that there is road in the middle of the land bearing
Sy.No.93/10. Though the plaintiff has sought for
mandatory injunction, but the Trial Court considering the
facts and circumstances of the case, modified the relief
and granted the injunction against the defendant. The
Trial Court was justified in passing the impugned
judgment. The First Appellate Court in reappreication of
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the material evidence on record was justified in confirming
the judgment and decree based by the Trail Court. Hence,
I do not find any substantial question of law that arises for
consideration in this appeal and any error in the impugned
judgments.
17. In view of the above discussion, I proceed to
pass the following:
ORDER
i. Appeal is dismissed.
ii. Judgments and decree passed by the
Courts below are hereby confirmed.
iii. No order as to costs.
Sd/-
JUDGE
KAV
