Karnataka High Court

Sri.Mahadevappa S/O. ... vs Basanagouda S/O. Ujjanagouda ... on 25 July, 2024

                                         -1-
                                               NC: 2024:KHC-D:10655
                                                 RSA No. 100095 of 2019




                  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                        DATED THIS THE 25TH DAY OF JULY, 2024

                                      BEFORE

                       THE HON'BLE MR JUSTICE C.M. POONACHA

                    REGULAR SECOND APPEAL NO. 100095 OF 2019

             BETWEEN:

             1.   SRI MAHADEVAPPA
                  S/O VEERABASANAGOUDA HARANAHALLI,
                  AGE: 67 YEARS,
                  OCC: AGRICULTURIST,
                  R/O: HIREMADAPUR,
                  TQ: HIREKERUR, DIST: HAVERI.

             2.   SMT. LALITAMMA
                  W/O ERANAGOUDA HARANAHALLI,
                  AGE: 53 YEARS,
                  OCC: HOUSEHOLD WORK,
                  R/O: HIREMADAPURA,
                  TQ: HIREKERUR, DIST: HAVERI.

             3.   KAREGOUDA
                  S/O. ERANAGOUDA HARANAHALLI,
                  AGE: 25 YEARS,
Digitally
signed by         OCC: AGRICULTURIST,
BHARATHI S        R/O: HIREMADAPURA,
Location:         TQ: HIREKERUR, DIST: HAVERI.
HIGH COURT
OF           4.   SUMA ERANAGOUDA HARANAHALLI,
KARNATAKA
                  AGE: 27 YEARS,
                  OCC: HOUSEHOLD WORK,
                  R/O: HIREMADAPURA,
                  TQ: HIREKERUR, DIST: HAVERI.

             5.   UMA ERANAGOUDA HARANAHALLI,
                  AGE: 22 YEARS,
                  OCC: STUDENT,
                  R/O: HIREMADAPURA,
                  TQ: HIREKERUR, DIST: HAVERI.

             6.   SHANKARGOUDA
                              -2-
                                    NC: 2024:KHC-D:10655
                                      RSA No. 100095 of 2019




     S/O. VEERABASANAGOUDA
     HARANAHALLI, AGE: 48 YEARS,
     OCC: AGRICULTURIST,
     R/O: HIREMADAPURA,
     TQ: HIREKERUR, DIST: HAVERI.

7.   SMT. LALITA
     W/O. JATTEPPA HORAKERI,
     AGE: MAJOR, OCC: HOUSEHOLD WORK,
     R/O: JOYISARAHARALA HALLI,
     TQ: RANEBENNUR, DIST: HAVERI.

8.   SMT. LEELA
     W/O PARAMESHAPPA SOMANAHALLI,
     AGE: MAJOR, OCC: HOUSEHOLD WORK,
     R/O: KUNCHUR, TQ: HIREKERUR,
     DIST: HAVERI.
                                                ...APPELLANTS
(BY SRI S N BANAKAR, ADVOCATE)

AND:

1.   BASANAGOUDA
     S/O. UJJANAGOUDA NAGAVVANAVAR,
     AGE: MAJOR, OCC:AGRICULTURIST,
     R/O: HIREMADAPURA - 581 111,
     TQ: HIREKERUR, DIST: HAVERI.

2.   BHARAMAPPA
     A/F BASAPPA NAGAVVANAVAR,
     AGE: 53 YEARS, OCC: KSRTC EMPLOYEE,
     R/O: HIREMADAPURA - 581 111,
     TQ: HIREKERUR, DIST: HAVERI.

3.   SHIVAPPA
     S/O. BASAPPA MALIYAPPANAVAR,
     AGE: 57 YEARS, OCC: AGRICULTURIST,
     R/O: HIREMADAPURA - 581 111,
     TQ: HIREKERUR, DIST: HAVERI.
                                              ...RESPONDENTS

       THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED BY SENIOR CIVIL JUDGE AND
JMFC, HIREKERUR IN R.A.NO.82/2016 DATED 01.09.2018, SO ALSO
                                        -3-
                                             NC: 2024:KHC-D:10655
                                                 RSA No. 100095 of 2019




THE JUDGMENT AND DECREE PASSED IN O.S.NO.274/2013 BY THE
ADDITIONAL        CIVIL    JUDGE      AND     JMFC,    HIREKERUR   DATED
21.04.2016 AND TO DECREE THE SUIT IN O.S.NO.274/2013 BY
ALLOWING THIS RSA.


       THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                                 JUDGMENT

The present second appeal is filed under Section 100

of Code of Civil Procedure1 by the plaintiffs challenging the

judgement and decree dated 01.09.2018 passed in RA

No.82/2016 by the Court of the Senior Civil Judge and

JMFC, Hirekerur2 and the judgement and decree dated

21.04.2016 passed in OS No.274/2013 by the Court of the

Additional Civil Judge and JMFC, Hirekerur3 whereunder,

the suit for easement right filed by the plaintiffs has been

dismissed by the Trial Court which has been affirmed by

the First Appellate Court.

Hereinafter referred to as 'CPC'

Hereinafter referred to as 'First Appellate Court'

Hereinafter referred to as 'Trial Court'

NC: 2024:KHC-D:10655

2. The parties herein are referred to as per their

rankings before the Trial Court for the sake of

convenience.

3. It is the case of the plaintiffs that they are the

owners of the property in RS Nos.147 and 146 shown as

GKNP and PNCQ in the hand sketch produced along with

the plaint. That the defendant No.1 is the owner of RS

No.147 mentioned as LMNO in the said hand sketch and

defendant No.2 is the owner to an extent of 6 acres 22

guntas mentioned in the EFGH in the said hand sketch.

That EFGH portion is a bullock cart pathway in RS No.147.

4. It is the further case of the plaintiffs that the

suit property in RS No.147/1B and 146/1A was originally

belonging to the ancestor of the plaintiff and before

defendant Nos.2 and 3 become the owners, it was in

possession and enjoyment of the plaintiffs brother. That

the plaintiffs and their elders used the pathway mentioned

in EFGH for the purpose of cultivating their property and

for transportation of crops grown in the plaintiff property.

NC: 2024:KHC-D:10655

That the said pathway is starting from Hiremedur to

Ratihalli main road. That the said pathway is used by

plaintiff and defendant since 50 years and there is no

alternative pathway to reach plaintiffs property. That the

defendants interfered and are obstructing the plaintiff in

using the said pathway. Hence, the plaintiff filed a suit for

declaration that the plaintiffs have a right to use the

pathway and to restrain the defendants from interfering

with the same.

5. The defendants entered appearance through

their counsel and the defendant No.1 in his written

statement admitted the existence of the pathway in the

suit property. However, it is stated that he has not

restrained the plaintiffs and the plaintiffs have filed a false

suit.

6. Defendant Nos.2 and 3 filed the written

statement and they denied the case of the plaintiffs and

denied the existence of the pathway as mentioned as

ABCD in the hand sketch map in the plaint. The existence

NC: 2024:KHC-D:10655

of the properties by the parties are admitted. However,

the defendants contended that there is an alternative

route which is available for entering of the property and

also for public to use the same. Hence, the defendant

sought for dismissal of the suit.

7. Consequent to the pleadings of the parties, the

Trial Court framed following issues:

"1. Whether the plaintiffs prove that there is Government bullock cart pathway in the suit schedule property, it given as ABEFG & H as shown in the hand sketch map?

2. Whether the plaintiff further proves that they have used this pathway since from more than 25 years?

3. Whether the plaintiff proves that they have entitle for the by way of prescription right?

4. Whether the plaintiffs have entitle for permanent injunction?

5. Whether the plaintiffs have entitle relief sought for?

6. What order or decree?"

8. Oral and documentary evidence have been

adduced by the parties. The Trial Court also appointed an

Advocate Commissioner who visited the spot and

NC: 2024:KHC-D:10655

submitted his report. The Commissioner was examined as

PW.1 and Ex.C.1 to Ex.C.4 have been marked in evidence.

9. The Trial Court upon appreciation of the oral

and documentary evidence on record dismissed the suit.

Being aggrieved, the plaintiff preferred RA No.82/2016.

The defendants entered appearance and contested the

same. The First Appellate Court by its judgement and

decree dated 01.09.2018 dismissed the appeal filed by the

plaintiffs with cost. Being aggrieved, the present second

appeal is filed. Along with the above appeal, IA No.1/2019

is filed under Section 5 of the Limitation Act to condone

the delay of 39 days in filing the appeal.

10. Learned counsel Sri.S.N.Banakar contends that

the application for delay is required to be favourably

considered and thereafter the merits of the matter is to be

considered. However, the learned counsel for the

appellants was called upon to make his submissions on the

merits of the matter for admission so as to consider as to

whether IA No.1/2019 is required to be favourably

NC: 2024:KHC-D:10655

considered and accordingly submissions of the learned

counsel for the appellants have been heard for admission.

11. Learned counsel for the appellant vehemently

contends that the defendants have admitted the existence

of the pathway/ road as per the case of the plaintiffs and

hence, both of the Courts concurrently erred in dismissing

the suit.

12. The submissions of the learned counsel for the

appellants have been considered and the material on

record have been perused.

13. It is forthcoming that consequent to both the

parties adducing the evidence, since the evidence on

record was not clear, the Trial Court appointed a Court

Commissioner to inspect the pathway. Accordingly, the

Court Commissioner visited the spot after due notice to

the parties and filed his report and hand sketch, pertaining

to the suit property. The Commissioner was examined as

NC: 2024:KHC-D:10655

CW.1 and Ex.C.1 to Ex.C.4 have been marked in evidence.

The plaintiff cross-examined CW.1.

14. The Trial Court appreciating the evidence

adduced by the Commissioner, noticing the contention of

the plaintiff that there was a Government pathway which

is in existence which is mentioned as ABCD in the plaint

hand sketch has noticed that the Commissioner has stated

that there is no pathway in existence in RS Nos.146 and

147 properties. Further, the Trial Court has recorded a

finding that the pathway as per the contention of the

plaintiff is not in existence in the village map (Ex.P.1).

15. Further, the Trial Court appreciating the hand

sketch map (Ex.C.4) submitted by the Commissioner has

recorded a finding that there is a village border road in

existence in the southern side of the plaintiffs land which

is not been shown in the plaint hand sketch. Hence, the

Trial Court held that the conduct of the plaintiffs shows

that the material facts are being suppressed.

- 10 -

NC: 2024:KHC-D:10655

16. Further, the Trial Court appreciated the report

of the Commissioner, has recorded a finding that CW.1 has

clearly admitted that there was a border pathway in

existence, which is 7 to 8 feet in width, which shows that

the same can be used to reach the plaintiffs land. Having

regard to the Commissioner report, the Trial Court

dismissed the suit.

17. The First Appellate Court re-appreciating the

factual matrix of the matter as also noticing the

Commissioner report and the contentions put forth by the

plaintiff in the appeal, with regard to the Commissioner

report, has recorded following findings:

18. The Court Commissioner Sri. B.G. Patil has been examined as CW-1 and he submitted his report which is marked as Ex.C1. He also produced the sketch prepared by him which is marked as Ex.C4. The court Commissioner has been cross examined on behalf of the plaintiffs, even though he has been cross examined at length, but nothing has been elicited from his mouth. The learned counsel for the plaintiffs fails to elicit the existence of "EFGH" road as shown in the plaint rough sketch. Further the Court commissioner has been questioned by the Trial Court and in his

- 11 -

NC: 2024:KHC-D:10655

answer, the Court Commissioner has clearly answered the existence of 7-8 feet road which is situated to the southern side of properties of the plaintiffs and defendants, as such the evidence of Court Commissioner corroborates the contentions of the written statement filed by the defendants No.2 and 3. On perusal of the Ex.C4 the sketch prepared by the Court Commissioner it reveals that, the cartway is situated from Rattihalli-Madapura road which runs till the end of R.S. No.144 only which is shown as "ABC". Further the Court Commissioner has not shown the existence of cartway as pleaded by the plaintiffs till the land of the plaintiffs. As such the plaintiffs fail to prove that, they are using the "EFGH" cartway as shown in the plaint rough sketch to reach their land. On the other hand, the defendants No.2 and 3 have established that, the plaintiffs are having an alternative way which is situated towards the southern side of the properties and the Trial Court has rightly observed the same and it rightly dismissed the suit of the plaintiffs. More over the plaintiffs have not produced sufficient and cogent material to prove that, they are using the "EFGH" cartway since more than 20 years.

(emphasis supplied)

18. Hence, the First Appellate Court has dismissed

the appeal of the plaintiff with cost.

- 12 -

NC: 2024:KHC-D:10655

19. It is forthcoming from the aforementioned that

having regard to the Commissioner report both the Courts

have recorded concurrent findings of fact that the plaintiffs

have failed to demonstrate the existence of the road as

claimed by them in the plaint and in the hand sketch map

filed along with the plaint. Further, as per the

Commissioner report, it has been clearly stated that there