Karnataka High Court
Bhimappa S/O. Timmappa B Patil vs Nagappa S/O. Pandappa Harijan on 4 July, 2024
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RSA No. 5797 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5797 OF 2013 (DEC/INJ-)
(DEC/INJ
BETWEEN:
1. BHIMAPPA S/O. TIMMAPPA B. PATIL,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O. CHANNAL VILLAGE, TQ: MUDHOL,
DIST: BAGALKOT
BAGALKOT-587313.
2. RAMAPPA S/O TIMMAPPA B. PATIL,
AGE: 52 YEARS, OCC: AGRICULTURE
R/O. CHANNAL VILLAGE, TQ: MUDHOL,
DIST: BAGALKOT
BAGALKOT-587313.
3. VENKAPPA S/O TIMMAPPA B. PATIL,
AGE: 67 YEARS, OCC: AGRICULTURE
R/O. CHANNAL VILLAGE, TQ: MUDHOL,
DIST: BAGALKOT
BAGALKOT-587313.
4. APPASAEB S/O TIMMAPPA B. PATIL,
AGE: 55 YEARS, OCC
OCC: AGRICULTURE,
Digitally signed R/O. CHANNAL VILLAGE, TQ: MUDHOL,
by SAROJA DIST: BAGALKOT
BAGALKOT-587313.
HANGARAKI
Location: HIGH 5. HANAMAPPA S/O TIMMAPPA B PATIL
COURT OF AGE: 57 YEARS, OCC: AGRICULTURE
KARNATAKA
DHARWAD R/O. CHANNAL VILLAGE, TQ: MUDHOL,
BENCH DIST: BAGALKOT
BAGALKOT-587313.
DHARWAD ...APPELLANTS
(BY SMT. DEEPA J., ADVOCATE FOR
SRI PAVAN B.DODDATTI, ADVOCATE)
AND:
NAGAPPA S/O. PANDAPPA HARIJAN
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. CHANNAL VILLAGE, TQ: MUDHOL,
DIST: BAGALKOT-587313.
587313.
...RESPONDENT
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RSA No. 5797 of 2013
(BY SRI N.L.BATAKURKI, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING THAT THE
JUDGMENT AND DECREE DATED 03.08.2013 PASSED IN
R.A.NO.10/2007 BY THE COURT OF THE SENIOR CIVIL JUDGE,
MUDHOL, MAY KINDLY BE SET ASIDE AND JUDGMENT AND DECREE
DATED 22.12.2006 PASSED IN O.S.NO.238/2005 BY THE COURT OF
THE ADDITIONAL CIVIL JUDGE (JR.DN.), MUDHOL
MUDHOL IN DECREEING
THE SUIT, MAY KINDLY BE AFFIRMED AND ALLOW THE SUIT OF THE
PLAINTIFFS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSIION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is fi
filed
led by the plaintiffs under
Section 100 of the Code of Civil Procedure, 19081, challenging
the judgment and decree dated 03.08.2013, passed in R.A
No.10/2007 by the Court of the Senior Civil Judge, Mudhol2 and
the judgment and decree dated 22.12.2006, pass
passed
ed in O.S
No.238/2005 by the Additional Civil Judge (JR.DN), Mudhol3.
Wherein,
herein, the suit for declaration of easementary right and
injunction was decreed by the Trial Court and the First
Appellate Court allowed the appeal filed by the defendant and
set aside the judgment and decree passed by the Trial Court.
2. The parties will be referred to as per their ranking
before the Trial Court, for the sake of convenience.
Hereinafter referred to as 'CPC'
Hereinafter referred to as the " First Appellate Court"
Hereinafter referred to as the 'Trial Court'
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3. The relevant facts necessary for consideration of the
present appeal are that the land of the defendant bearing
No.121/4 is situated towards the northern side of the plaintiffs
land bearing R.S No.120. It was the case of the plaintiffs that in
order to reach their lands they ha
had to pass from Channal-
Channal
Yadawad road and pass through the property of the defendant
in the north to south direction towards the eastern side.
side Hence,
the plaintiffs filed the suit for declaration and consequential
relief of injunction.
4. The defendant entered appearance in the said suit and
contested the same. The Trial Court upon
upon an appreciation of the
oral and documentary evidence on record, decreed the suit and
passed the following order:
"Suit of the plaintiffs is decreed.
It is ordered and declared that the plaintiffs have
got the right of easement by way of necessity over
the XNO wahiwat road which is situated in the land
of defendant in R.S No.121/4 as being narrated in
the plaint hand sketch.
Further, the defendant is rrestrained
estrained by way of an
order perpetual injunction from use and enjoyment
of the XNO wahiwat suit road to the plaintiffs.
Under the circumstances of the case, the parties
are directed to bear their own costs.
Draw decree accordingly."
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5. Being aggrieved, th
the
e defendant preferred R.A
No.10/2007. The plaintiffs entered appearance before the First
Appellate Court and contested the same.
6. The First Appellate Court upon a re
re-appreciation
appreciation of the
oral and documentary evidence on record
record, has noticed the
admission made by PW.1 that there is an alternative road to
reach the land of the plaintiffs and hence, recorded a finding
that the plaintiff has no right to pass through the land of the
defendant to reach his land.
7. It is also forthcoming from the record that a Court
Commissioner was appointed
appointed, who visited the spot and
submitted his report. The report of the Court Commissioner
was also appreciated by the First Appellate Court and a finding
has been recorded that the plaintiffs were moving ttheir
heir Tractor
on the alleged suit road in the land of the defendant only to
give an impression to the Court Commissioner that the road is
already in existence as contended in the plaint.
8. The First Appellate Court has recorded a finding that
the evidence on record is not sufficient to hold that the road
through the land of the defendants was being used by the
plaintiffs from time immemorial
memorial to reach their lands. Further,
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the First Appellate Court has rejected the report of the Court
Commissioner, since he ha
has
s failed to notice the alternative road
as admitted by PW.1 to PW.3 in their cross-examination.
cross examination. It is
further noticed that the Court Commissioner has not been
examined.
9. Hence, the First Appellate Court allowed the appeal
filed by the defendant, set aside the judgment and decree
passed by the Trial Court and dismissed the suit filed by the
plaintiffs. Being aggrieved, the plaintiffs have
ha filed the present
second appeal.
10. Heard submissions of the learned counsel for the
appellants and learned counsel for the respondents.
11. The learned counsel for the respondents submits that
the plaintiffs have sold the suit property and hence, the
question of the plaintiffs prosecuting the above appeal does not
arise.
12. Although the learned counsel for the appellant
vehemently contends
ntends that the judgment of the First Appellate
Court is erroneous,
erroneous itt is clear and forthcoming that the
existence of the alternate road has been admitted by the
plaintiff as well as the witnesses examined on behalf of the
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plaintiff. The said aspect itself is sufficient to deny the relief of
declaration as sought for by the plaintiff
plaintiff.
13. In
n view of the position that the plaintiffs ha
have
ve sold
their property and having regard to the finding recorded by the
First Appellate Court, wherein the plaintiffs ha
have admitted
regarding the existence of alternate road
road,, the present appeal
filed by the plaintiff is liable to be dismissed
dismissed.
14. In view of the aforementioned, the appellants have
failed to demonstrate that any substantial question of law
arises for consideratio
consideration
n in the above appeal. Hence, the above
appeal is dismissed as being devoid of merit at the stage of
admission itself.
15. In view of the dismissal of the above appeal, I.A
No.1/2013 for stay also stands dismissed.
Sd/-
JUDGE
PMP
CT:GSM
