Karnataka High Court
Sharada N Shanbhogue vs Bhojappa Salian on 10 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1963 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1963 OF 2021 (INJ)
BETWEEN:
1. SHARADA N SHANBHOGUE
AGED ABOUT 74 YEARS
D/O LATE KESHAVA PAI
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
2. NAGESH PAI
AGED ABOUT 70 YEARS
S/O LATE KESHAVA PAI
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
3. BHASKAR PAI
AGED ABOUT 69 YEARS
Digitally S/O LATE KESHAVA PAI
signed by R/AT BADANIDIYOOR VILLAGE
SUMA B N UDUPI TALUK AND DISTRICT - 576 106.
Location: High
Court of
Karnataka 4. VEENA
AGED ABOUT 47 YEARS
D/O LATE VARADA KAMATH
R/AT BAJAGOLI KARKALA TALUK
UDUPI DISTRICT - 576 106.
5. SRIDHARA KAMATH
AGED ABOUT 47 YEARS
S/O LATE VARADA KAMATH
R/AT BAJAGOLI KARKALA TALUK
UDUPI DISTRICT - 576 106.
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RSA No. 1963 of 2021
6. MOHINI KAMATH
AGED ABOUT 66 YEARS
D/O LATE KESHAVA PAI
R/AT BADANIDIYOOR VILLAGE,
UDUPI TALUK & DISTRICT - 576 106.
7. VINODA G SHENOY
AGED ABOUT 58 YEARS
D/O LATE KESHAVA PAI
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
8. KUMUDA S PAI
AGED ABOUT 61 YEARS
S/O LATE KESHAVA PAI
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
9. NITHYANANDA PAI
AGED ABOUT 57 YEARS
S/O LATE KESHAVA PAI
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
10. JAGADISH PAI
AGED ABOUT 55 YEARS
S/O LATE KESHAVA PAI
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
11. VIJENDRA NAYAK
AGED ABOUT 62 YEARS
H/O LATE ANURADHA NAYAK
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
12. VISHULA NAYAK
AGED ABOUT 30 YEARS
D/O LATE ANURADHA NAYAK
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
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RSA No. 1963 of 2021
13. MUKUNDA NAYAK
AGED ABOUT 29 YEARS
S/O LATE ANURADHA NAYAK
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
...APPELLANTS
(BY SRI. SRIKANTH N V.,ADVOCATE)
AND:
1. BHOJAPPA SALIAN
AGED ABOUT 80 YEARS
S/O SUBBAPPA BELCHADA
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106
2. APPU BANGERA
AGED ABOUT 58 YEARS
S/O NARAYANA POOJARY,
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
3. PRABHAKARA PAI
AGED ABOUT 71 YEARS
S/O KESHAVA PAI
R/AT BADANIDIYOOR VILLAGE
UDUPI TALUK AND DISTRICT - 576 106.
4. MOHANDAS KAMATH
AGED ABOUT 75 YEARS
H/O LATE VARADA KAMATH
R/AT BAJAGOLI, KARKALA TALUK
UDUPI DISTRICT - 574 102.
5. RATHNAKARA KAMATH
AGED ABOUT 39 YEARS
S/O LATE VARADA KAMATH
R/AT BAJAGOLI KARKALA TALUK
UDUPI DISTRICT - 574 102
6. JAYALAKSHMI
AGED ABOUT 35 YEARS
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RSA No. 1963 of 2021
D/O LATE VARADA KAMATH
R/AT BAJAGOLI, KARKALA TALUK
UDUPI DISTRICT - 574 102.
7. SUDHA G KINI
AGED ABOUT 64 YEARS
D/O LATE KESHAVA PAI
R/AT BADANIDIYOOR VILLAGE,
UDUPI TALUK AND DISTRICT - 576 106
8. GANESH NAYAK
AGED ABOUT 40 YEARS
S/O LATE ANURADHA NAYAK
R/AT BADANIDIYOOR VILLAGE,
UDUPI TALUK AND DISTRICT - 576 106.
...RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.01.2021
PASSED IN RA.NO.38/2016 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE AND ACJM, UDUPI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 09.08.2016 PASSED IN O.S.NO.140/2009 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Defendants 2, 4 to 7, 9 to 12, 14, 16 and 17 are
before this Court being aggrieved by the Judgment and
decree dated 09.08.2016 passed in O.S.No.140/2009 on
the file of the Addl. Civil Judge & JMFC, Udupi (hereinafter
referred to as 'the Trial Court' for short) by which, the Trial
Court decreed the suit of the plaintiffs granting permanent
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injunction in their favour restraining defendants from
interfering with plaintiffs' usage over the suit `P' road or
causing any obstruction over the same and against the
said judgment and order dated 29.01.2021 passed in
R.A.No.38/2016 on the file of the Addl. Senior Civil Judge,
Udupi (hereinafter referred to as 'the First Appellate Court'
for short) by which the Judgment and decree of the trial
court is confirmed.
2. The above suit in O.S.No.140/2009 was filed by the
plaintiffs/respondent Nos.1 and 2 herein contending inter
alia that item Nos.1 and 2 of plaint A schedule were
acquired by plaintiff No.1 in terms of Deed of Sale dated
22.03.2006 and item Nos.3 and 4 of plaint A schedule
property were acquired by plaintiff No.2 in terms of
registered Deed of Sale dated 22.03.2006, executed by
defendants. That ever since then, plaintiffs have been in
possession and enjoyment of the said properties. It is
further contended that towards western side of plaint A
schedule property there existed property bearing
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Sy.No.18/7 and 18/8 belonging to the defendants there
also existed property bearing Sy.No.18/6 that also belongs
to the defendant. There is a Panchayat road called as
Sanyasi Mutt Vadabandeshwara Main Road running North
to South situated immediately to the western side of the
defendant's property. That to have access to the said
main road, a mud road exist on the northern side of
Sy.No.18/7 and Sy.No.18/6 belonging to the defendants
which runs East to West. That said road is shown in the
sketch and referred to as 'P'. That the said road exist in
Sy.No.18/6 since time immemorial. The said road forming
part of Sy.No.18/6 is referred to as `disputed road' and
road shown in Sy.No.18/8 is referred to as `undisputed
road'. It is further contended plaintiffs purchased plaint A
schedule properties from the defendant upon
representation and admission of the defendant that the
`disputed road' has a common pathway which has been
used by the defendants and others for several years to
reach to the main road. Therefore in continuation of said
existing `disputed road' plaintiffs were provided 9 feet
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road facility in Sy.No.18/8 by the defendants in the deeds
of sale dated 22.03.2006. Thus it is contended that the
plaintiffs have been using `P' road to reach the main road
from plaint A schedule properties which is the only access
to reach to the main road. That the defendant No.4 with
an intention to cause obstruction to the plaintiffs in
enjoying their right to use the said road, had blocked the
same by constructing a wall resulting in plaintiffs filing a
suit seeking relief of injunction against defendants.
3. Upon service of summons, defendant Nos.1, 2, 4, 5,
7 to 17 appeared through their counsel. Defendant Nos. 3
and 6 remained absent. Defendant No.4 filed written
statement, which was adopted by defendant Nos.1, 2, 5, 7
to 17. In his written statement, defendant No.4 admitted
the ownership and possession of the plaintiffs over the
plaint A schedule properties however, denied their right to
use the `disputed road'. It was contended that the
`disputed road' was formed for the personal use of
defendants and some of their purchasers, who purchased
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the land from them. That in the Deed of Sale that were
executed in favour of plaintiffs no right to use the
`disputed road' was not recognized. Road existing in
Sy.No.18/6 belongs to defendants and right to use the
said road was accorded to one Umesh Suvarna and
Ganagadhar Palan, which was recognized in the Deed of
Sale executed in their favour. That the plaintiffs
unnecessarily tried to interfere by using the said road
without any right. On these grounds, sought for dismissal
of the suit.
4. The Trial Court framed the following issues and
additional issues and recorded evidence:-
"1. Whether the plaintiffs prove that they have
been in peaceful possession and enjoyment of
suit schedule property?
2. Whether the plaintiffs prove that the
defendants are interfering with their peaceful
possession and enjoyment of suit schedule
property and they will block and obstruct the
suit 'P' road by constructing wall across the suit
'P' road?
3. Whether the plaintiffs are entitled for the
relief of permanent injunction?
NC: 2024:KHC:1473
4. What order or decree?
Additional issues framed on 1-7-2016:
1. Whether plaintiffs prove that existence of
road as shown in plaint eye sketch?
2. Whether plaintiffs prove the interference of
defendants in usage of plaintiffs over 'P' road?
Recasted additional issue No.1 framed on
1-7-2016:
1. Whether plaintiffs prove the existence of road
as shown in eye sketch and they have been
granted right to use the road?"
5. On appreciation of evidence, the Trial Court
answered issue Nos.1, 2, 3, recasted additional issue no.1
and additional issue No.2 in the affirmative and
consequently, decreed the suit as sought for. Being
aggrieved by the same, defendants preferred an appeal in
R.A.No.38/2016 on the file of the First Appellate Court.
Considering the grounds urged in the appeal, the First
Appellate Court framed the following points for
consideration:
"1. Whether the plaintiffs have established that
the defendants have provided a disputed road in
the Sy.No.18/6 at the time of selling the
properties to the plaintiff No.1 and 2?
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2. Whether the plaintiffs have established the
alleged interference from the defendants?
3. Whether the suit of the plaintiffs for
permanent injunction without seeking relief of
declaration of easement is maintainable?
4. Whether the Trial Court has committed error
in decreeing the suit of the plaintiffs?
5. What Order or decree?"
6. The First Appellate Court answered point Nos.1 to 3
in the affirmative. Consequently, dismissed the appeal
confirming the judgment and decree passed by the Trial
Court. Being aggrieved by the same, defendants are
before this Court.
7. Learned counsel for the appellants reiterating the
grounds urged in the memorandum of appeal submitted
that the plaintiffs were not accorded any right to utilize the
`disputed road', which forms part of Sy.No.18/6, which is
in their possession and that without there being any right,
they had claimed right of way which has been granted by
the Trial Court and the First Appellate Court contrary to
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the records. He further submits that the judgment and
decree granting right of way to the plaintiffs in Sy.No.18/6
has resulted in miscarriage of justice giving rise to
substantial question of law.
8. Heard and perused the records.
9. It is not in dispute that the plaintiffs purchased the
plaint A schedule properties in terms of Deeds of Sale
dated 22.03.2006 as per Exs.P9 and P20 executed by
defendants. In the Deeds of Sale, there is an endorsement
made by defendants permitting the plaintiffs to utilize
portion of the property situated on the western side of
their property belonging to the defendants. The said
endorsement is extracted by the Trial Court at paragraph
No.12 of the judgment while answering issue no.1. The
said shara reads as under:-
"µÀgÁB-
F PÀæAiÀÄPÉÌ PÁgÀtªÁzÀ D¹ÛAiÄ ¥ÀqÀÄ §¢AiÀÄ°è £ÁªÀÅ G½¹PÉÆAqÀ ¸À
£ÀA 18-8gÀ CA±ÀzÀ §qÀUÀÄ §¢AiÀÄ°è ªÀÄÆqÀÄ ¥ÀqÀÄ GzÀݪÁzÀ §qÀUÀÄ vÉAPÀÄ 9
(MA¨ÀsvÀÄÛ) ¦üÃlÄ CUÀ®zÀ ¸ÀܼÀªÀ£ÀÄß £ÁªÀÅ zÁj §UÉÎ «AUÀr¹zÀÄÝ ¸À¢æ zÁjAiÀÄ£ÀÄß
F PÀæAiÀÄPÉÌ PÁgÀtªÁzÀ D¹Û §UÉÎ ¸ÀAZÁgÀ ªÀiÁzÀåªÀÄPÁÌV ¤ÃªÀÅ ªÁ ¤ªÀÄä ¸ÀAvÀw
¥Àæw¤¢üAiÀÄgÀÆ ¸ÀºÁ G¥ÀAiÉÆÃUÀªÀiÁrPÉÆAqÀÄ §gÀĪÀ §UÉÎ £ÀªÀÄä PÀqɬÄAzÀ F
ªÀÄÆ®P ¤ªÀÄUÉ M¦àUÉ ¤ÃrgÀÄvÉÃÛ ªÉ."
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10. The Trial Court has also extracted cross examination
of DW1 recorded on 06.11.2015 which reads as under:
"£ÁªÀÅ §gÉzÀÄPÉÆlÖ PÀæAiÀÄ¥ÀvÀæ ¤¦ 9gÀ ¥ÀÄl ¸ÀASÉå 5 ªÀÄvÀÄÛ 6gÀ°è zÁjAiÀÄ
§UÉÎ µÀgÁªÀ£ÀÄß £ÀªÀÄÆzÀÄ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ. ¤¦ 9 gÀ°è PÁt¹gÀĪÀ ¸ÀAZÁgÀ
ªÀiÁzÀåªÀĪÉAzÀgÉ d£ÀgÀ G¥ÀAiÉÆÃUÀPÁÌV ªÀiÁvÀæ ªÁºÀ£À ¸ÀAZÁgÀ
ªÀiÁqÀĪÀAw®è £ÁªÀÅ ªÁ¢AiÀÄgÀ G¥ÀAiÉÆÃUÀPÁÌV 9 Cr eÁUÀªÀ£ÀÄß
©lÄÖPÉÆnÖgÀÄvÉÛêÉ. ¸ÁªÀiÁ£ÀåªÁV PÉêÀ® d£ÀgÀ ¸ÀAZÁgÀPÉÌ 3-4 Cr gÀ¸ÉÛ
¨ÉÃPÁUÀÄvÀÛzÉ. £ÁªÀÅ ªÁ¢AiÀÄjUÉ ©lÄÖPÉÆlÖ zÁjAiÀÄ°è EZÁÒ£ÀĸÁgÀªÁV
G¥ÀAiÉÆÃV¸ÀĪÀ ºÀPÀÌ£ÀÄß ¤ÃrgÀĪÀÅ¢®è. ªÁ¢AiÀÄgÀÄ ¸À¢æ zÁjAiÀÄ°è
ªÁºÀ£ÀªÀ£ÀÄß G¥ÀAiÉÆÃV¹zÀgÉ CzÀPÉÌ £ÀªÀÄä vÀPÀgÁgÀÄ EgÀÄvÀÛzÉ. ¸À¢æ
zÁjAiÀÄ°è vÀqÉAiÀÄ£ÀÄß GAlĪÀiÁrzÀ PÁgÀt¢AzÀ ªÁ¢AiÀÄgÀÄ
£ÁåAiÀiÁ®AiÀÄPÉÌ zÁªÉAiÀÄ£ÀÄß ¸À°è¹gÀÄvÁÛgÉ JAzÀgÉ CzÀgÀ §UÉÎ £À£ÀUÉ ºÉüÀ®Ä
¸ÁzsÀå«®è.
ªÁ¢AiÀĪÀjUÉ zÁjAiÀÄ ºÀPÀÌ£ÀÄß CªÀgÀ D¹ÛAiÀÄ ¥ÀƪÀð¢AzÀ ¥À²ÑªÀÄ ¢QÌUÉ
¤ÃrzÀÄÝ CzÀÄ £ÀªÀÄä eÁUÀPÉÌ §AzÀÄ ¸ÉÃgÀĪÀ gÀ¸ÉÛ DVgÀÄvÀÛzÉ. ¸À¢æ gÀ¸ÉÛAiÀÄ
¥ÀƪÀð¢AzÀ ¥À²ÑªÀÄzÀ PÀqÉUÉ ºÉÆÃV §gÀ®Ä ¤ÃrzÀ gÀ¸ÉÛ DVgÀÄvÀÛzÉ. ¤Ãr 9
gÀ°è X Y JAzÀÄ UÀÄgÀÄw¹zÀ eÁUÀzÀ°è ªÁ¢AiÀÄgÀÄ ¸ÀAZÀj¸À§ºÀÄzÀÄ. C°èAzÀ
© JAzÀÄ PÁt¹zÀ ªÀÄÄAzÉ ¥À²ÑªÀÄ ¢QÌUÉ §gÀĪÀ zÁjUÉ ªÁ¢AiÀÄgÀÄ §gÀ®Ä
£ÀªÀÄä vÀPÀgÁgÀÄ EgÀÄvÀÛzÉ. ¸ÁQë ªÀÄÄAzÀĪÀgÉzÀÄ d£À ¸ÀAZÁgÀ ªÀiÁqÀ§ºÀÄzÀÄ
ªÁºÀ£À ¸ÀAZÀj¸À®Ä £ÀªÀÄä vÀPÀgÁgÀÄ EgÀÄvÀÛzÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ".
11. Contents of the aforesaid endorsement read in the
light of deposition of DW-1, as rightly taken note of by the
trial court makes it clear that the defendants had
permitted the plaintiffs to utilize 9 ft. wide road shown as
'xy' in the endorsement to the Deeds of Sale which runs in
the direction of moodu-padu i.e., East to West and North
to South. In the deposition extracted above, defendant
No.1 has also admitted though he has objection in
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plaintiffs using the `disputed road', the same can be used
for movement of public but they have objection for using
the same for movement of vehicles. Taking note of the
aforesaid endorsement and the deposition of the
defendants admitting grant of rights to use the said road
to the plaintiffs, the Trial Court came to conclusion that
the plaintiffs had indeed proved their case for granting of
decree of permanent injunction.
12. The First Appellate Court while answering point No.1,
at paragraphs 10 to 25 has also appreciated in detail the
oral and documentary evidence adduced by the parties.
The First Appellate Court has found that under Ex.P22 and
P23 the deeds of sale under which defendants conveyed
the property in favour of one Umesh Suvarna and
Gangadhara Palan have clearly stated that there exists a
permanent disputed road in Sy.No.18/6 running towards
western side connecting the Panchayat road. The said
Ex.P23 was executed on 21.06.1996. In the endorsement
to the said deed of sale the defendants have retained their
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right to use the road forming part of Sy.No.18/6 to be
used by them and their representatives. The First
Appellate Court has also taken note of the fact that same
defendants conveyed A schedule properties in favour of
plaintiffs under Ex.P9 and P20 which are dated
22.03.2006. The trial Court has rightly taken note of the
fact that if defendant did not have intention to provide a
right of way in the road existing in Sy.No.18/6 to the
plaintiffs, which is referred to as `disputed road', there
was no need or necessity for plaintiffs to have reserved
Sy.No.18/8 that belongs to them and which connects the
said `disputed road' in Sy.No.18/6. That since the
plaintiffs purchased plaint A schedule properties from
defendants who had retained their right to use the
`disputed road' under Ex.P22 and P23, the plaintiffs being
transferees and successors-in-interest of the defendants,
they are entitled to make use of the `disputed road'. At
paragraph 21 of the Judgment the First Appellate Court
has rightly analysed the right to use the `disputed road'
and that mere on mentioning of the same in Ex.P9 and
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P20, in the overall fact situation of the matter could not be
said that no rights were reserved in favour of plaintiff in
respect of the `disputed road'. Thus, in the considered
view of the Court, on reappreciation of the evidence on
record the First Appellate Court confirmed the Judgment
and decree passed by the Trial Court.
13. In that view of the matter, no substantial question of
law would arise for consideration. In that view of the
matter, the appeal is dismissed.
14. In view of the dismissal of the appeal, I.A.No.1/2023
does not survive for consideration. Hence, disposed of.
Sd/-
JUDGE
