Karnataka High Court
P.K. Somanna vs Paul Wilson on 5 April, 2024
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NC: 2024:KHC:14154
RSA No. 1588 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. 1588 OF 2015 (INJ)
BETWEEN:
P.K. SOMANNA
S/O LATE P.C. KAVERAPPA,
AGED ABOUT 69 YEARS,
R. KUNJAIAL VILLAGE,
KAKKABE POST,
MADIKERI TALUK,
KODAGU DISTRICT - 571 201.
...APPELLANT
(BY SRI. KARUMBAIAH T.A.., ADVOCATE)
AND:
1. PAUL WILSON,
S/O LATE V.I. PAULOS,
AGED ABOUT 58 YEARS,
Digitally
signed by R R/AT TALIYATH HOUSE,
MANJUNATHA
NEELASHWARAM POST,
Location:
HIGH COURT KALADI, ERNAKUMLAM DISTRICT,
OF
KARNATAKA KERALA STATE - 683 574.
2. T.P. SABU,
S/O LATE V.I. PAULOS,
AGED ABOUT 49 YEARS,
R/AT TALIYATH HOUSE,
NEELASHWARAM POST,
KALADI, ERNAKUMLAM DISTRICT,
KERALA STATE - 683 574.
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RSA No. 1588 of 2015
3. C. PRAKASH KUMAR,
S/O. LATE KUMARAN NAIR,
AGED ABOUT 51 YEARS,
R/AT NANDAVANAM HOUSE,
CHALAKUDY POST,
THRISSUR, KERALA - 683 576.
4. MADHU PRAKASH,
W/O C. PRAKASH KUMAR,
AGED ABOUT 44 YEARS,
R/AT NANDAVANAM HOUSE,
CHALAKUDY POST,
THRISSUR, KERALA - 683 576.
5. K.P. DAVIS,
S/O LATE K.G. PAPACHAN,
AGED ABOUT 52 YEARS,
R/AT KUDIYIRIPPIL HOUSE,
NEELESWARAM POST,
KALADY,
ERNAKULAM DISTRICT,
KERALA - 683 574.
6. K.P. BABU,
S/O LATE K.G. PAPACHAN,
AGED ABOUT 50 YEARS,
R/AT KUDIYIRIPPIL HOUSE,
NEELESWARAM POST,
KALADY,
ERNAKULAM DISTRICT,
KERALA - 683 574.
7. K.P. ANTO,
S/O LATE K.G. PAPACHAN,
AGED ABOUT 46 YEARS,
R/AT KUDIYIRIPPIL HOUSE,
NEELESWARAM POST,
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RSA No. 1588 of 2015
KALADY,
ERNAKULAM DISTRICT,
KERALA - 683 574.
8. K.P. WILSON,
S/O LATE K.G. PAPACHAN,
AGED ABOUT 43 YEARS,
R/AT KUDIYIRIPPIL HOUSE,
NEELESWARAM POST, KALADY,
ERNAKULAM DISTRICT,
KERALA - 683 574.
...RESPONDENTS
(BY SRI. N. JAGADISH BALIGA, ADVOCATE FOR R1 TO R8)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 20.08.2015 PASSED IN
RA.NO.56/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MADIKERI DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 27.07.2012 PASSED IN
OS.NO.14/2009 ON THE FILE OF THE ADDL. CIVIL JUDGE,
MADIKERI.
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 R.A.No.56/2012 dated
20.08.2015 on the file of Senior Civil Judge, Madikeri
confirming the judgment and decree dated 27.07.2012
passed in O.S.No.14/2009 on the file of Additional Civil
Judge, Madikeri.
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2. For the sake of convenience, parties are
referred to as per their ranking before the Trial Court. The
appellant is the defendant and respondents are the
plaintiffs. Plaintiffs filed a suit against the defendant for
permanent injunction, restraining the defendant from
interfering with the peaceful possession and enjoyment of
the user of the suit schedule road.
3. The brief facts leading rise to filing of this
appeal are as under:
It is the case of the plaintiffs that, the plaintiffs have
purchased the lands bearing Sy.No.76/3A, 76/4, 76/5,
76/6, 76/7, 76/8, 76/9, 76/10, 76/11 and 76/12 situated
are at Naladi Village, Madikeri Taluk and the revenue
records where transferred to their names and they are
cultivating the coffee in the said land and are using the
motorable road through Sy.No.77/1 for about 1 kilometer
which belongs to the family of the defendant. It is
contended that in the year 1983, there was a settlement
between the plaintiffs and the family members of the
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defendant. It was agreed that usage of the road
measuring 12 ft. width and 1 kilometer length by the
plaintiffs and further, contended that the defendant and
her family members have erected a gate at the entrance
of the suit schedule road for protecting the crop and the
gate was not locked and anybody passing through the
gate would open and close the gate. It is contended that
the plaintiffs were using the road as per the compromise
decree dated 04.06.1983 in O.S.No.173/1982 and also
there was an agreement between the plaintiffs and family
members of the defendant dated 12.03.2006. It is
contended that the defendant is blocking the road on the
ground that he is the absolute owner of the land in
Sy.No.77/1. The plaintiffs have no other road, except the
said road for transportation of crops and manure to their
land. The plaintiffs lodged a complaint before the police
against the defendant. The police have not entertained
the complaint on the ground that the dispute is of civil in
nature and directed the parties to approach the Civil
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Court. Thus, the cause of action arouse for the plaintiffs
to file a suit for permanent injunction.
4. Defendant filed the written statement
contending that Sy.No.77/1 of Naladi Village is the
ancestral property and he became the owner by
succession. It is contended that the suit schedule property
is a private road formed by the predecessors of the
defendant, for the purpose of transportation of crops and
manure to their property and it is not a public road. It is
contended that a suit was filed in O.S.No.173/1982 and
said suit was ended in a compromise and accordingly, the
compromise decree was passed and the said compromise
decree is not binding on the defendant, as he was not a
party to the said suit. Hence, prays to dismiss the suit.
5. The Trial Court on the basis of pleadings of the
parties framed the following issues and additional issues.
"1. Whether the plaintiff proves the existence of
road of 12 feet width and to the length of about
one kilometer passing through the land bearing
Sy.No.77/1 from Bolidira family land till it
reaches the properties of the plaintiffs in
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Sy.No.786/3A at the north eastern end of Naladi
Village as on the date of the suit?
2. Whether the plaintiffs further proves that they
are in peaceful enjoyment and using the suit
schedule road as on the date of the suit?
3. Whether the plaintiff further proves interference
by defendant in enjoyment and using of the suit
schedule road by them?
4. Whether the suit of the plaintiff is barred by
principle of respondent-judicata?
5. Whether the suit of the plaintiff is bad for non-
joinder and mis-joinder of necessary party?
6. What order or decree?"
6. In order to substantiate their case, Power Of
Attorney Holder of the plaintiffs was examined as PW1 and
examined 2 witnesses as PW.2 and PW.3 and got marked
39 documents as Ex.P1 to P39. In rebuttal, defendant
examined himself as DW.1 and got marked 13 documents
as Ex.D1 to D.13.
7. The Trial court on the assessment of the oral
and documentary evidence, decreed the suit as prayed for.
8. Being aggrieved by the judgment and decreed
passed by the Trial Court in O.S.No.14/2009, defendant
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preferred an appeal in R.A.No.56/2012 on the file of
Senior Civil Judge, Madikeri.
9. The First appellate Court after hearing the
learned counsel for both the parties framed the following
points for consideration:
1. Whether the judgment an decree passed by
the Trial Court needs any interference?
2. What order?
10. The First appellate Court after hearing the
learned counsel for the parties, dismissed the appeal
confirming the judgment and decree passed by the Trial
Court.
11. Being aggrieved by the judgments and decree
passed by the Courts below, defendant filed this regular
second appeal.
12. Heard the learned counsel for the
defendant/appellant.
13. Learned counsel for the appellant/defendant
submits that the Courts below have committed an error in
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passing the impugned judgments. He submits that the
suit schedule road is a private road and it is not a public
road. The said road is exclusively being used by the
defendant and the plaintiffs have no right to use the said
private road. The said aspect was not considered by the
Courts below. Hence, on these grounds the impugned
judgments passed by the Courts below are arbitrary and
erroneous. Hence, prays to allow the appeal.
14. Perused the records and considered the
submissions made by the learned counsel for the
appellant/defendant.
15. Prior to the filing of this suit, the suit in
O.S.No.173/1982 was ended in compromise and in the
said compromise, it was agreed that defendant and other
family members had given a right of way over the said suit
schedule road to the plaintiffs to reach their estate.
Further, they have also executed an agreement dated
12.03.2006 wherein, the members of the defendant's
family executed an agreement in favour of plaintiffs and
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received a consideration amount of Rs.25,000/- for giving
the right of way over the suit schedule road. The Trial
Court placing the reliance on the compromise decree
passed in O.S.No.173/1982 and an agreement dated
12.03.2006 held that the plaintiffs have proved the
existence of the road of 12 ft. width and to the length of
about 1 kilometer passing through the land bearing
Sy.No.77/1 from Bolidira family land, till it reaches the
properties of the plaintiffs in Sy.No.786/3A on the north
eastern end at Naladi Village as on the date of suit.
Further, plaintiffs have proved that the plaintiffs are in
peaceful possession and enjoyment and are using the suit
schedule road as on the date of the suit and the defendant
tried to obstruct the enjoyment of the plaintiffs. The Trial
Court was justified in decreeing the suit of the plaintiffs.
The First Appellate Court on reappreciation of the material
evidence on record was justified in confirming the
judgment and decree passed by the Trial Court as the
family members of the defendant had executed an
agreement and also plaintiffs have got a right by virtue of
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the compromise decree passed in O.S.No.173/1983 that
they are using the said road. The plaintiffs have got an
easementary right over the suit schedule road. Hence, I
do not find any substantial question of law that arises for
consideration in this appeal and any error in the impugned
judgments.
16. In view of the above discussion, I proceed to
pass the following:
ORDER
i. Appeal is dismissed.
ii. Judgments and decrees passed by the
Courts below are hereby confirmed.
iii. No order as to costs.
iv. In view of the dismissal of the appeal,
I.A.No.1/2015 does not survive for
consideration.
Sd/-
JUDGE
KAV
