Karnataka High Court
Narayan S/O Shankarnarayan Bhat vs Shankarnarayan Naga Bhat on 16 January, 2024
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RSA No.5541 OF 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO.5541 OF 2010
BETWEEN:
1. NARAYAN
S/O.SHANKARANARAYAN BHAT
DEAD BY HIS LR'S
1A. RAGHUPATI
S/O.NARAYAN BHAT
MANJANNA
E AGED 60, OCC: AGRICULTURE
R/O.GOLIKOPPA, TQ: SIRSI
Digitally signed
by MANJANNA E DIST: NORTH KANARA-581 401
Date: 2024.01.24
15:44:59 +0530
1B. UMESH
S/O.NARAYAN BHAT
AGED 52, OCC: AGRICULTURE
R/O.GOLIKOPPA, TQ: SIRSI
DIST: NORTH KANARA-581 401
1C. CHANDRAKALA
W/O.BHASKAR HEGDE
AGED: 48, OCC: HOUSEWIFE
R/O.HULIMANE, TQ: SIRSI
DIST: NORTH KANARA-581 401
1D. RAJARAM
S/O.NARAYAN BHAT
AGED 46, OCC: AGRICULTURE
R/O.GOLIKOPPA, TQ: SIRSI
DIST: NORTH KANARA-581 401
...APPELLANTS
(BY SRI.VISHWANATH HEGDE, ADVOCATE FOR
SRI.K.S.PATIL, ADVOCATE)
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RSA No.5541 OF 2010
AND:
1. SHANKARANARAYAN
NAGA BHAT SINCE
DECEASED BY LR'S
1A. ANNAPURNA
W/O.SHANKARNARAYAN BHAT
AGED: 83, OCC: AGRICULTURE
R/O.GOLIKOPPA, TQ: SIRSI
DIST: NORTH KANARA-581 401
1B. KESHAV
S/O. SHANKARNARAYAN BHAT
AGED 60 YEARS
OCC: AGRICULTURE
R/O.GOLIKOPPA, TQ: SIRSI
DIST: NORTH KANARA-581 401
1C. UMAPATI
S/O.SHANKARNARAYAN BHAT
AGED 57 YEARS
OCC: AGRICULTURE
R/O.GOLIKOPPA, TQ: SIRSI
DIST: NORTH KANARA-581 401
1D. LAXMINARAYAN
S/O.SHANKARNARAYAN BHAT
AGED 50, OCC: AGRICULTURE
R/O.GOLIKOPPA, TQ: SIRSI
DIST: NORTH KANARA-581 401
1E. DAXAYANI
W/O LAXMINARAYAN BHAT
AGED: 60, OCC: AGRICULTURE
R/O.GOLIKOPPA, TQ: SIRSI
DIST: NORTH KANARA-581 401
1F. CHANDRAMATI
W/O.KAMALAKAR HEGDE
AGED: 52 YEARS
OCC: AGRICULTURE
H.NO.45, K.H.B.COLONY, SIRSI
DIST: NORTH KANARA-581 401
2. SHRIPAD
S/O. GANAPATI BHAT
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RSA No.5541 OF 2010
AGED ABOUT 54 YEARS
OCC: AGRICULTURE
R/O.GOLIKOPPA, TQ: SIRSI
DIST: NORTH KANARA-581 401
...RESPONDENTS
(BY SRI.VIJAYKUMAR B.HORATTI, ADVOCATE)
***
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF CPC.,
PRAYING AGAINST THE JUDGMENT & DECREE DATED: 16.01.2010
PASSED IN R.A. NO.98/1998 ON THE FILE OF THE CIVIL JUDGE (SR.
DN) SIRSI, ALLOWING THE APPEAL, FILED AGAINST THE JUDGMENT
DATED: 19.08.1998 AND THE DECREE PASSED IN O.S. NO.69/1993
ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AT SIRSI,
DISMISSING THE SUIT FILED FOR INJUNCTION.
THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.06.2023, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
Appellant/defendant feeling aggrieved by judgment
and decree of the First Appellate Court on the file of Civil
Judge (Sr.Dn.)Sirsi, in R.A.No.98/98, dated 16.01.2010 in
reversing the judgment and decree of the Trial Court on
the file of Prl.Civil Judge (Jr.Dr.), Sirsi in O.S.No.69/93
dated 19.08.1998 preferred this appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the Trial Court for the sake of
convenience.
RSA No.5541 OF 2010
3. The factual matrix leading to the case of
plaintiffs can be stated in nutshell to the effect that
plaintiffs are the residents of Golikoppa village having
house and land properties. The suit way from the village
Golikoppa joins to Bhairumbe Belale main road. The
plaintiffs and all the villagers are using the said road to
reach the main road which has been shown as "A.B." in
the hand sketch map appended to the plaint. The
defendant by encroaching the said road at point "C" was
trying to construct the building which would be an
obstruction for the users of the said road. The defendant
has not obtained any required permission from the
panchayath and the proposed construction of defendant
building is on encroaching the road. The defendant is not
amenable to the advice of elderly persons. Therefore, the
plaintiffs were constrained to institute the suit on hand for
the relief claimed in the suit.
4. In response to the suit summons, the
defendant has appeared through counsel and filed written
statement contending that suit of plaintiff is false, frivolous
RSA No.5541 OF 2010
and not maintainable in law. It is specifically denied the
existence of "A.B" road from Golikoppa village joining to
the main Bhairumbe Belale road shown in the hand sketch
map appended to the plaint, further the same being used
by plaintiffs and all the villagers to reach Bhairumbe
Belale main road. In fact in the Gautana belongs to
Bhairumbe Mandala Panchayath there is a house of
defendant and in front of it there is a open space which
was used by the defendant as garage. In between the
house of defendant and the garage from East-West 6 ft.
width there is courtyard. The defendant wanted to
construct permanent garage in the old place of garage, as
such filed application to Bhairumbe Mandala panchayat on
18.01.1993 for seeking necessary permission. The
defendant had filed O.S.No.40/93 against plaintiffs and
Mandala Panchayat, Bhairumbe for the relief of declaration
and consequential relief of injunction, the Court has
ordered to maintain status quo. The mere suit of plaintiff
for the relief of permanent injunction without seeking the
RSA No.5541 OF 2010
relief of declaration is not maintainable. Therefore, on
these grounds prayed for dismissal of the suit.
5. On the basis of pleadings of both the parties,
the Trial Court has framed necessary issues, the plaintiff
to prove his case relied on the evidence of PW.1 and
documents at Exs.P.1 to 9 . The defendant relied on the
evidence of DWs.1 and 2 and the documents Exs.D.1 to 5,
so also Exs.C.1 and 2 came to be marked through the
evidence of Court Commissioner. The Trial Court having
heard the arguments of both sides and on appreciation of
oral and documentary evidence placed on record dismissed
the suit of plaintiff.
6. Plaintiff challenged the said judgment and
decree of the Trial Court before the First Appellate Court
on the file of Civil Judge (Sr.Dn.) Sirsi, in R.A.No.98/98.
The First Appellate Court after re appreciation of evidence
on record has allowed the appeal and set aside the
judgment and decree of Trial Court and granted the relief
of permanent injunction as sought by plaintiff in the suit.
RSA No.5541 OF 2010
7. Appellant/defendant challenged the judgment
and decree of First Appellate Court contending that
defendant by evidence on record has demonstrated the
fact that description of the suit property and the sketch
map does not depict the correct picture of the disputed
property. The First Appellate Court has given too much
importance to the report of Court Commissioner who has
admitted in his cross-examination that he has not referred
the hand sketch map during the spot inspection. The
disputed space is in fact courtyard of the defendant and
lies between the house and cattle shed of defendant. The
evidence placed on record would demonstrate that the
open space is in the possession of defendant and the
plaintiff has no any right over it. The approach and
appreciation of oral and documentary evidence by the First
Appellate Court is contrary to law and evidence on record.
Therefore, prayed for allowing the appeal and to set aside
the judgment of the First Appellate Court, consequently to
restore the judgment and decree of the Trial Court.
RSA No.5541 OF 2010
8. In response to the notice of appeal the LR's of
respondent No.1, respondent No.2 appeared through their
counsel. The Trial Court records have been secured.
9. This Court by order dated 27.09.2010 admitted
the appeal to consider the following substantial questions
of law:
1) Whether the suit claiming right without the
relief of declaration is maintainable?
2) Whether plaintiff is entitle for perpetual
injunction against the defendants and has
right to use the road/way as a member of
public when they right to access namely for
ingress and egress is being obstructed?
10. Heard the arguments of both sides.
11. Before adverting to the merits of the case, it is
necessary to decide I.A.3/2010 filed by the counsel for
appellant filed under Order 41 Rule 27 CPC and seeking
permission to produce the document issued by Village
Panchayat, Bhairumbe. On perusal of the document, it
would go to show that Bhairumbe Panchayat has not
RSA No.5541 OF 2010
developed the road upto the house of the defendant.
There is already enough material evidence placed on
record to decide the subject matter in issue. The
additional document sought to be produced by the
appellant is not just and necessary to effectively
adjudicate the dispute between the parties. This document
has been obtained after disposal of the suit and appeal
before the First Appellate Court. The Grama Panchayat,
Bhairumbe was not party to the suit. This Court can
decide the dispute between the parties on the basis of
available evidence on record and the document sought to
be now produced is not an absolute necessity. The
dispute can be effectively adjudicated even without the
said document. Hence, accordingly, I.A.3/2010 is
dismissed.
12. On careful perusal of oral and documentary
evidence placed on record, it would go to show that
plaintiffs is claiming the existence of "A.B" road leading
from village Golikoppa and joins to Bhairumbe Belale main
road. The defendant is trying to put up construction at
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RSA No.5541 OF 2010
point "C" by encroaching on the road used by plaintiffs and
the villagers to reach the main road Bhairumbe Belale.
The defendant has denied the existence of "A.B." road and
he is trying to construct at point "C" in the hand sketch
map appended to the plaint. It is the contention of
defendant that there is house of defendant in Gaonthan
land in Golikoppa village within the limits of Bhairumbe
Mandala Panchayat and in front of house there is open
space belonged to defendant to the Eastern side and
thereafter there is garage. In between the house of
defendant and garage there is 6 ft. width road from East
to West. The defendant on the obstruction of plaintiff filed
O.S.40/93 against the plaintiff and Mandal Panchayat
Bhairumbe. There was status quo order in the said suit.
13. The plaintiff in the plaint averments has only
pleaded there is a road of 12 to 15 ft. width and 3 furlong
in length from Golikoppa village shown as "A.B" in the
plaint sketch map situated in the Gounthana area of
Golikoppa village. If that is so then the plaintiffs has to
produce necessary documents from Bhairumba Mandala
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RSA No.5541 OF 2010
Panchayat to show the existence of "A.B." road in the
Gounthana area of Golikoppa village within the limits of
Bhairumbe Mandala Panchayat to show that it is a
government road and it is under control of Bhairumbe
Mandal Panchayat. If it is private road being used by the
residents of Gounthana area then it should be pleaded and
proved out of whose property, the private road is being
used by plaintiffs and the villagers.
14. Plaintiff during the course of his evidence at
one breath state about the said road is private road being
used by the plaintiffs and villagers for ingress and egress
to reach the Bhairumbe Belale main road and at another
breath claims that the said road is belongs to Mandala
Panchayat Bhairumbe, further the said "A.B."road is under
management and control of Mandala Panchayat Bhairumbe
which would be a public road. The plaintiffs apart from
producing their own hand sketch map appended to the
plaint regarding the existence of "A.B." road leading from
the village of Golikoppa to Bhairumbe Belale road have
not produced any documents or evidence to prove the
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RSA No.5541 OF 2010
existence of above referred "A.B." road. PW.1 in para 6 of
his examination-in-chief states that the suit road leads to
his house and also to the other 3-4 houses, and after the
said 3-4 houses the house of plaintiffs is situated. The
Mandala Panchayath Bhairumbe has provided the grant for
repair of road and the same was received by plaintiffs for
the last ten years. He further deposed that there is
another road from near his house to reach Betta. The
house of plaintiffs is situated at Southern side of defendant
house and the houses are situated at North to South in
one line. PW.1 admits that there is no reference in Ex.P.5
about the road repair in the village. On seeing the
photograph Ex.D.1 confronted to PW.1 admits the
situation appearing in the photograph is as found on the
spot. The Gounthana road ends to the house of defendant.
If that is the case then where is the question of the road in
front of the house of defendant being used by plaintiffs
and villagers.
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RSA No.5541 OF 2010
15. The evidence of PW.2 Seetharam would go to
show that from Bhairumbe Belale road, if one wants to
proceed to Golikoppa village then he has to come from
Basappana Katte cross and then join road from the back
side of the house of PW.2 and defendants and the width of
the said road is 16 to 17 ft. The said road is at a distance
of 50 ft. from the back side of their houses.
16. It is in the evidence of DW.1 that the Mandala
Panchayat officials were proposing to form house in front
of his house with Yuvaka Mandala of the village. He further
deposed to the effect that to form the road the plaintiffs
have demolished the garage belongs to the defendant.
However, the defendant has never produced any
documents to show that he has obtained necessary
permission from Bahairumbe Mandala Panchayat for
construction of garage. On the other hand Mandala
Panchayat Bhairumbe has caused notice to the defendant
Ex.D.1. On going through the photographs Exs.D.2 and 3,
it would go to show that there is some pakka road upto
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RSA No.5541 OF 2010
the house appearing in the photograph and thereafter
there is water channel.
17. The evidence of Court Commissioner CW.1 and
the report Exs.C.1 and 2 would go to show that there is
some road up to the house of defendant. The said road
runs South to North. The said road up to the house of
defendant is about half kilometer and the width of the
same is 10 to 12 ft., there is courtyard in front of the
house of defendant. The road is in front of the house of
plaintiff at 20 ft. ditch and there is road from the back side
of the house of defendant laid by Zilla Panchayat office
and the said road leads from Golikoppa to Hosahalli
village.
18. The Trial Court after appreciating the above
evidence on record has recorded finding that the evidence
of PW.1 is contrary to the sketch map Ex.P.2, the "A.B."
road shown in the hand sketch map runs from East to
West. Whereas, PW.1 claims in his evidence that the road
runs from South to North, but in the hand sketch map it is
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RSA No.5541 OF 2010
shown as "A.B." road. The Trial Court by referring to the
judgment of this Court in Shankarappa Basappa
Channur Vs. Jadiyappa, reported in 1972 KLJ short
notes item No.147 extracted in para 12 of it's judgment,
wherein it has been held that the sketch map referred by
the plaintiffs and the existence of the road according to
the village has not been established. Therefore, without
such a plan decree on the basis of rough sketch map
cannot be granted and this is not the way as to how a suit
of this nature should be proceeded with. The Trial Court
having taken note of the fact that apart from the self
prepared hand sketch map Ex.P.2, no other documents
have been produced to corroborate the claim of plaintiff
about the existence of the "A.B." road.
19. If the plaintiffs are claiming the existence and
use of "A.B." road by plaintiffs and the villagers of
Golikoppa admittedly situated at Gonthana land of
Bhairumbe where the plaintiffs are seeking to represent
the interest on behalf of all then in that event of the
matter re course of law in terms of Order 1 Rule 8 of
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RSA No.5541 OF 2010
C.P.C. has to be followed and the plaintiffs have to file the
suit in the representative capacity to protect the interest
of all. The plaintiffs have not filed the present suit in the
representative capacity to protect the interest of all
villagers to represent them.
20. If the plaintiffs are claiming the existence and
usage of "A.B." road is a private road which passes in the
land belongs to others then owners of such property will
have to be impleaded as parties to the suit. The suit for
mere relief of injunction with respect of user of "A.B." road
without seeking relief of declaration whether belongs to
the government or private, necessary relief of declaration
has to be sought with consequential relief of permanent
injunction. The bare injunction suit against the defendant
alone is not maintainable. The Trial Court has adverted to
the said position regarding the maintainability of the suit
for bare injunction in para 17 of it's judgment.
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RSA No.5541 OF 2010
21. The First Appellate Court only on the basis of
oral evidence of PW.1 and the hand sketch map Ex.P.2
without there being any corroborative evidence to that
effect drawn unwarranted inferences without there being
any required evidence to that effect. The First Appellate
Court also was not justified in holding that merely because
there is an ambiguity in showing the location of the road
compared to the pleadings and Ex.P.2 itself would not be a
ground to dismiss the suit of plaintiffs. The existence of
road which passes in front of the house of defendant itself
has not been proved by the plaintiffs. The findings
recorded by the First Appellate Court based on the village
background and attending circumstances, so also the road
being up to the house of defendant, followed with certain
assumptions in holding the existence of road in the open
space in front of the house of defendant cannot be legally
sustained. The mere fact that there is a open space in
front of the house of defendant cannot be a ground to hold
that there exist "A.B." road which passes from the house
of defendant is a public way being used by plaintiffs and
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RSA No.5541 OF 2010
all the villagers. On the basis of hand sketch map Ex.P.2
which is prepared by plaintiff No.2 without there being any
basis cannot be relied to hold the existence of "A.B." road.
The observations and findings recorded by the First
Appellate Court in negating the findings recorded by the
Trial Court are contrary to the evidence on record. In fact
the evidence of PW.1 himself is not reliable to prove the
existence of "A.B." road being used by plaintiffs and other
villagers. Therefore, the findings recorded by the First
Appellate Court cannot be legally sustained and the same
needs interference by this Court. Hence in view of the
reasons recorded as above the substantial question of law
are answered in negative. Consequently, proceed to pass
the following:
ORDER
Appeal filed by appellant/defendant is hereby
allowed.
The judgment of the First Appellate Court on the file
of Civil Judge (Sr.Dn.) Sirsi, in R.A.98/1998 dated
16.01.2010 is hereby set aside.
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RSA No.5541 OF 2010
The judgment and decree passed by the Trial Court
on the file of Prl.Civil Judge (Jr.Dn.) Sirsi in O.S.No.69/93
dated 19.08.1998 is restored.
The parties are directed to bare their own cost.
Registry to send back the records to Trial Court with
a copy of this order.
Sd/-
JUDGE
GSR
