Karnataka High Court
Smt. Kishori K.S vs Sri. Ganesh Gowda on 28 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 644 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.644 OF 2024 (DEC/INJ)
BETWEEN:
1. SMT. KISHORI K.S.
W/O SRI SANTHOSH,
AGED ABOUT 44 YEARS,
LAKSHMI NIVAS,
GURU NAGAR, MARY HILL,
MANGALURU - 575 008.
...APPELLANT
(BY SRI K.CHANDRANATH ARIGA, ADVOCATE)
AND:
1. SRI. GANESH GOWDA,
S/O LOKAYYA GOWDA,
AGED ABOUT 63 YEARS.
Digitally signed
by DEVIKA M
Location: HIGH 2. SRI SHRINIVASA GOWDA,
COURT OF S/O LOKAYYA GOWDA,
KARNATAKA AGED ABOUT 67 YEARS.
3. SRI VASANTHA GOWDA,
S/O LOKAYYA GOWDA,
AGED ABOUT 53 YEARS.
RESPONDENTS 1 TO 3 ARE
RESIDING AT THOTA HOUSE,
THOTATHADY VILLAGE - 574 228.
BELTHANGADY TALUK,
D.K. DISTRICT.
...RESPONDENTS
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RSA No. 644 of 2024
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.02.2024
PASSED IN R.A.NO.14/2023 ON THE FILE OF PRINCIPAL SENIOR
CIVIL JUDGE AND JMFC, BELTHANGADY, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 10.04.2023 PASSED IN O.S.NO.353/2016 ON THE FILE
OF PRINCIPAL CIVIL JUDGE AND JMFC, BELTHANGADY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that the plaintiff filed a suit seeking the relief
of declaration and mandatory and prohibitory injunction with
respect to the suit schedule property. It is contended in the
plaint that the plaint 'A' and 'B' schedule properties were the
single tenement owned and possessed by the undivided family
of Thota Subba Gowda. In the western side of these properties,
Thotathady - Chibidre main road passes and from time
immemorial, a link road described in the plaint 'C' schedule has
been in use to reach 'A' schedule property from the aforesaid
main road and vice versa. The undivided family of the Thota
Subba Gowda came to be divided in the year 1947 through a
registered partition deed, wherein the plaint 'A' schedule
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property along with other properties were allotted to the share
of Kanthu Gowda and his children, whereas the plaint 'B'
schedule properties were allotted to the share of Lokayya
Gowda. In the said deed, all the signatories as well as the
owners of the properties have agreed not to disturb and cause
obstruction for the usage of water course and approach roads
passing through properties allotted to the various shares. Thus,
all the amenities for the purposeful enjoyment of the properties
are assured and guaranteed under the said deed and acted upon
accordingly.
3. It is further contended that the legal heirs of Kanthu
Gowda had sold the plaint 1st and 2nd item of 'A' schedule
property to Gummanna Gowda on 04.06.1954 through the
registered sale deed. It is pertinent to note that the 3rd item of
'A' schedule property being a kumki land to item Nos.1 and 2 of
plaint 'A' schedule property, Gummanna Gowda got it assigned
as kumki darkasth. In the year of 1955, Gummanna Gowda
constructed a residential house in the purchased property and
has been cultivating the 'A' schedule property till he sold it to
Smt. Manorama under the registered sale deed dated
03.06.1986. It is further contended that the defendants are the
descendants of late Lokayya Gowda and the plaint 'B' schedule
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properties is in the possession of the defendants.
Smt.Manorama gifted the plaint 'A' schedule property to the
plaintiff on 14.05.2015 and executed the registered gift deed.
The plaintiff has been in possession and enjoyment of the plaint
'A' schedule property and been using 'C' schedule road
peacefully till 03.10.2015. On 03.10.2015, defendants Nos.1 to
3 installed the iron gate across the 'C' schedule road enters in
Sy.No.141/3C and blocked the use of said road. As the oral
request of the plaintiff did not yield any relief, the plaintiff
lodged a complaint before the Tahasildar on 05.10.2015
requesting him to direct the defendants to remove the gate.
The Tahsildar conducted a preliminary enquiry and deputed
Revenue Inspector to conduct spot inspection. Accordingly, the
revenue officials visited the suit locality and drawn the mahazar.
But as 'C' schedule road is situated in the private land, the
Tahsildar could not proceed further. Plaint 'C' schedule road has
been existed and the said road is necessary for use and
cultivation of 'A' schedule property. The plaintiff has got
easementary right. The defendants have no manner of right to
block the said road and hence filed the suit.
4. The defendants appeared and filed the written
statement denying the averments made in the plaint. It is
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contended that the plaint 'C' schedule road is not properly
defined so that with its force can be identified. It is also to be
noted that, out of 5 items in the plaint 'B' schedule properties, it
is not mentioned as to through which item of lands, the alleged
road runs. A road running through the northern portion of the
plaint 'B' schedule properties from east to west cannot connect
Thotathady - Chibidre main road and plaint 'A' schedule
property. It is contended that the plaintiff is shooting the dark
and such a suit cannot be decreed and the plaintiff is seeking a
declaration with regard to a road which allegedly divided the
Thotathadi Chibidre main road at Nekkare and reaches to the
plaint 'A' schedule property. The defendants denied the very
existence of the road.
5. Based on the pleading of the parties, the Trial Court
framed the issues with regard to whether the plaintiff proves
that she is in possession and enjoyment of plaint 'A' and 'B'
schedule properties, whether the plaintiff proves that towards
western side of plaint 'A' and 'B' schedule properties there is a
12 feet road passes to reach 'A' schedule property, whether the
plaintiff proves that the defendants have blocked the same and
allowed the parties to lead evidence. Accordingly, the plaintiff
examined herself as P.W.1 and got marked the documents at
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Exs.P.1 to 17. The defendants examined defendant No.3 as
D.W.1 and got marked the documents at Exs.D.1 to 4. The
records also reveals that the Commissioner was appointed and
the Commissioner filed the report. The Trial Court having taking
note of both oral and documentary evidence placed on record
comes to the conclusion that there is no any existence of road to
connect the 'A' schedule property, which belongs to the plaintiff.
The Trial Court also observed that the Commissioner report and
sketch filed by the Commissioner clearly shows that there is no
road to reach the plaint 'A' schedule property and the plaint 'C'
schedule road is not in existence and hence dismissed the suit.
6. Being aggrieved by the said judgment and decree of
dismissal of the suit, an appeal is filed in R.A.No.14/2023. The
First Appellate Court, on re-appreciation of both oral and
documentary evidence placed on record confirmed the judgment
of the Trial Court in coming to the conclusion that the pleadings
and material are not in consonance with each other according to
the claim of the plaintiff with regard to the existence of the 'C'
schedule road passing in 'B' schedule property which reaches 'A'
schedule property and connects the land of the plaintiff. Being
aggrieved by the dismissal of the suit as well as the appeal, the
present second appeal is filed before this Court.
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7. The learned counsel for the appellant in his
arguments would vehemently contend that though the
Commissioner report is that no such road is in existence to
connect 'A' schedule property, both the Trial Court and the First
Appellate Court failed to take note of the sketch prepared by the
Commissioner, wherein it clearly discloses connecting the
property of the plaintiff. The learned counsel contend that
there is no any other road to reach the 'A' schedule property and
when there is no any alternative road, the plaintiff is entitled for
easementary right and the same has not been considered by
both the Courts and hence this Court has to frame the
substantial question of law with regard to the finding of both the
Courts. The very finding of both the Courts that there is no
existence of 12 feet road in plaint 'C' schedule property is
erroneous and it requires interference of this Court.
8. Having heard the learned counsel for the appellant
and on perusal of the reasoning given by the Trial Court, though
the learned counsel for the appellant relied upon the
Commissioner report before this Court at the time of admission,
on perusal of the Commissioner report, in paragraph No.4, it is
very clear with regard to connecting road to 'A' schedule
property and report is very clear that the road which is found in
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'B' schedule ends in that property only and the same not leads
to 'A' schedule property to connect the same. The
Commissioner report is very clear that there is no connecting
road to 'A' schedule property and there is a fence and rubber
trees and the same is possessed with jungle and the said road
ends in 'B' schedule property itself and the same is 6 feet road
and not 12 feet road as contended by the plaintiff. When the
Commissioner report is clear with regard to non-existence of
such road and unless the existence of road is proved by the
plaintiff, the question of granting any easementary right does
not arise. Both the Courts having considered the Commissioner
report and sketch and also both oral and documentary evidence
placed on record comes to the conclusion that there is no
existence of road which leads to 'A' schedule property. The
Trial Court while considering the material on record, particularly
in paragraph No.23, taken note of with regard to when a suit is
filed for easementary right, the plaintiff has to prove that he is
using the roadway and existence of roadway. As per the
Commissioner report, the defendants have installed the iron
gate in front of the road, but the plaintiff has failed to prove that
she is using the said road to reach her property. There is no
any roadway to reach plaint 'A' schedule property in terms of
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the Commissioner report. The First Appellate Court while re-
appreciating both oral and documentary evidence placed on
record, taken note of the same and in paragraph Nos.29 and 30
extracted the Commissioner report and comes to the conclusion
that there is no any existence of road. In paragraph No.31 it is
observed that, on perusal of the Commissioner report and
sketch, there is no connecting road to 'A' schedule property.
There is a 16 metre distance in between 'A' schedule property
and the road, which ends in the defendants' property. It means
that there is no road in between 'A' schedule property and the
road ends in the defendants' property. The width of the road is
6 ft. as noted by the Court Commissioner which ends in the 'B'
schedule property only. A detailed discussion was made by the
First Appellate Court in paragraph Nos.32 and 33.
9. The learned counsel for the appellant also brought to
the notice of this Court discussion made by the First Appellate
Court in paragraph Nos.36 and the same is also with regard to
the sketch submitted by the Court Commissioner and the
alleged road ends in land bearing Sy.No.194/1A1. This property
is not the subject matter of the suit and also discussed with
regard to not making the other owners of the properties as
parties to the suit. The crux of the issue is with regard to the
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existence of the road and there is no such existence of road.
When there is no such existence of road, the question of
granting easementary right does not arise. Hence, I do not find
any error committed by both the Trial Court and the First
Appellate Court in appreciating both oral and documentary
evidence placed on record. The Commissioner has not been
cross-examined by the appellant and admittedly, there is no
such dispute with regard to the Commissioner report. When
such being the case, unless the Commissioner report is disputed
and Commissioner is examined and cross-examined by the
appellant, the question of invoking the substantial question of
law does not arise. There is no scope for invoking Section 100
of CPC to frame the substantial question of law as contended by
the learned counsel for the appellant.
10. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
MD
