Karnataka High Court
Basamma And Anr vs Rajappa on 29 May, 2024
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NC: 2024:KHC-K:3393
RSA No. 200305 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO. 200305 OF 2017
BETWEEN:
1. BASAMMA W/O SHIVARAYA MALLAP
AGE: 69 YEARS, OCC: HOUSEHOLD
2. REVANSIDDAPPA
S/O SHIVARAYA MALLAP
AGE: 45 YEARS, OCC: AGRICULTURE,
BOTH R/O: RATKAL, TQ. CHINCHOLI,
DIST: KALBURAGI
...APPELLANTS
(BY SRI AMEET HATTI, ADV., FOR
Digitally signed SRI GANESH SUBHASHCHANDRA KALBURGI, ADVOCATE)
by SUMITRA
SHERIGAR
Location: High AND:
Court of
Karnataka
RAJAPPA
S/O REVANAPPA @ REVANSIDAPPA
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O RATKAL TQ. CHINCHOLI,
DIST: KALABURAGI-585103.
...RESPONDENT
(BY SRI VINAYAK APTE, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 24.08.2017 PASSED IN R.A. NO.5/2016 ON THE FILE
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NC: 2024:KHC-K:3393
RSA No. 200305 of 2017
OF THE SENIOR CIVIL JUDGE AT CHINCHOLI, CONFIRMING
THE JUDGMENT AND DECREE DATED 01.04.2015 PASSED IN
O.S. NO.47/2012 ON THE FILE OF THE PRL. CIVIL JUDGE AND
JMFC CHINCHOLI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful plaintiffs are before this Court assailing
the concurrent findings of the facts of the Courts below,
whereby the suit of the plaintiffs seeking declaration,
alternative relief of possession and consequently injunction in
respect of the suit property is dismissed by the Courts below.
2. The parties herein are referred to as per their
ranking before the trial Court for the sake of convenience.
3. Suit property is one room having no roof over it and
in a dilapidated condition situated at Ratkal Village in Chincholi
Taluk, with a dimension of 8' x 8' North-South and 7' x 6' East-
West with a door opening in the kitchen room of plaintiffs'
house. The suit passage is passing through the open space
belonging to the defendant in front of his house situated at
Ratkal Village having 4' North-South from main road to the end
of defendant's house GP No.6-5 and 6-6. It is the case of the
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plaintiffs that the easement of way has been created in favour
of the plaintiffs' ancestors of their houses across the house of
the defendant and the suit passage is an easement of
necessity. According to the plaintiffs, both the parties are using
the passage for ingress and egress to their houses from Eastern
main door. The plaintiffs state that they are using said passage
peacefully, openly and to the knowledge of defendant without
any obstruction for more than 20 years prior to filing of O.S.
No.57/2008.
4. Pursuant to the suit summons the defendant
appeared and filed his written statement inter alia contending
and denying that easement of way has been created in favour
of the plaintiffs' predecessors as shown in plaint sketch and
there is easement of necessity in respect of the suit passage.
The specific averment of the defendant is that the suit in O.S.
No.57/2008 filed by the defendant against the plaintiffs
(herein) for injunction came to be decreed and confirmed upto
second appeal before this Court, the right of the plaintiffs to
use the suit passage either by way of necessity or by way of
description was seriously denied.
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5. The trial Court based on the pleadings framed
necessary issues.
6. In order to substantiate their claim, plaintiff No.1
examined herself as PW1 and two witnesses as PWs.2 and 3
and got marked documents at Exs.P1 to P20. On the other
hand, the defendant examined himself as DW1 and got marked
documents at Exs.D1 to D47. The Court Commissioner was
examined as CW1 and documents at Exs.C1 to C40 were
marked through the Court Commissioner.
7. The trial Court on the basis of pleadings and oral
and documentary evidence has held that the plaintiffs have
failed to prove that they are the owners and in possession of
the 'A' suit schedule property as on the date of filing of the suit
and that about the existence of a common passage 'B' suit
schedule property. That the plaintiffs failed to prove about
using the 'B' suit schedule property as a common passage
without any objections for more than 20 years and by
judgment and decree the trial Court dismissed the suit.
8. Being aggrieved, the plaintiffs preferred appeal
before the first Appellate Court and the first Appellate Court
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while re-appreciating the entire oral and documentary evidence
confirmed the judgment and decree of the trial Court.
9. Heard counsel Sri Ameet Hatti, learned counsel for
the appellants and Sri Vinayak Apte, learned counsel for the
respondent and perused the material on record.
10. Undisputed facts are that the suit in O.S.
No.57/2008 was filed by the defendant for perpetual injunction
in respect of the very same suit property. The said suit came
to be decreed against the plaintiffs herein. R.A. No.35/2010
preferred by the plaintiffs also came to be dismissed, against
which RSA No.7254/2011 preferred was also dismissed
confirming the Judgment and Decree of the trial Court in O.S.
No.57/2008.
11. The plaintiffs herein filed written statement in O.S.
No.57/2008 contending that they alone are making use of open
space (suit passage) and the defendant herein is using the said
passage temporarily with their permission. In the instant suit,
the claim of the plaintiffs is that suit passage has been created
in favour of the plaintiffs' ancestors and it is an easement of
necessity for the ingress and egress to the house of the
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plaintiffs. The stand taken by the plaintiffs in the suit in O.S.
No.57/2008 and in the present suit is inconsistent. The suit in
O.S. No.57/2008 has been decreed in favour of the defendant
herein way back in the year 2010 itself, which has been
confirmed up to this Court. The plaintiffs herein having failed in
a suit against them has now initiated the present suit for
declaration and injunction contending that there is a easement
of necessity. The right to use either by way of easement, by
way of necessity has not been established by the plaintiffs in
the present suit or in the suit against them by the defendant
herein. The trial Court and the first Appellate Court have
rightly considered the entire oral and documentary evidence
and held that plaintiffs are not entitled for declaration and
injunction or relief of possession of the suit schedule property.
The plaintiffs having failed in their attempt in the first instance
in O.S.57/2008 itself, the suit has been rightly dismissed by the
Courts below. The manner in which the Courts below have
considered the entire oral and documentary evidence, this
Court is of the considered opinion that the concurrent findings
of facts does not warrant any interference by this Court. There
arises no substantial question of law for consideration before
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this Court in this second appeal. Accordingly, Court pass the
following:
ORDER
i) The regular second appeal is dismissed.
ii) Judgment and decree of the Courts below stands
confirmed.
Sd/-
JUDGE
SBS
