Karnataka High Court
Sri.Jagadish S/O Madev Naik vs Smt.Bhavani W/O Ravikiran Naik on 8 November, 2024
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NC: 2024:KHC-D:16337
RSA No. 100244 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100244 OF 2018 (INJ)
BETWEEN:
1. SRI. JAGADISH S/O. MADEV NAIK,
AGE ABOUT 33 YEARS,
OCC: AGRICULTURIST, R/O. PADUSHIRALI,
BENGRE-II VILLAGE, BHATKAL.
2. SRI. NITHYANANDA
S/O. MAHABALESHWAR NAIK,
AGE: ABOUT 30 YEARS, OCC. AGRICULTURIST,
R/O. PADUSHIRALI,
BENGRE-II VILLAGE, BHATKAL.
... APPELLANTS
(BY SRI. V G BHAT, ADVOCATE)
AND:
Digitally
signed by
VISHAL
VISHAL
NINGAPPA
NINGAPPA
PATTIHAL SMT.BHAVANI W/O. RAVIKIRAN NAIK,
PATTIHAL Date:
2024.11.13
11:33:07
+0530
AGE: ABOUT: 39 YEARS, OCC. AGRICULTURIST,
R/O. GUDIHITLU SHRIALI, BHATKAL.
... RESPONDENT
(BY SRI. J S SHETTY, ADVOCATE)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 03.02.2018 PASSED IN
R.A.NO.79/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE,
BHATKAL, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 21.06.2017 PASSED IN
O.S.NO.23/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
BHATKAL, DISMISSING THE SUIT FILED FOR PERMANENT
INJUNCTION.
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NC: 2024:KHC-D:16337
RSA No. 100244 of 2018
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
Challenging the judgment and decree in
RA.Nos.79/2017 on the file of the Senior Civil Judge,
Bhatkal (hereinafter referred to as the 'First Appellate
Court' for short) the defendants are before this Court in
regular second appeal. The First Appellate Court by the
judgment and decree decreed the suit of the plaintiff for
permanent injunction.
2. Parties herein are referred to as per their rank
as before the trial Court for the sake of convenience.
3. Heard learned counsel appearing for the
appellants, learned counsel appearing for the respondent
and perused the material on record.
4. Suit for permanent injunction, it is the case of
the plaintiff that she is absolute owner in possession of the
suit property having purchased the suit property under a
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registered sale deed from the erstwhile owner, that on
07.02.2013 the defendants without there being any right
or interest in the suit property tried to form a road on the
Western side of the suit property and hence, the present
suit by the plaintiff for injunction.
5. The defendants appeared and filed their written
statement inter alia contending that the suit property
belongs to the family of Devadiga Community and out of
18 guntas, the plaintiff purchased suit property. On the
Eastern side of the property, there is kaccha road from
time immemorial to reach Padushirali Village and the said
road is connected to the tar road. Further, it is the case of
the defendants that a road is situated adjacent to the suit
property and the children are using the said road to reach
Anganwadi. Further, that the plaintiff by way of temporary
injunction is trying to block the existing road and except
this road, there is no other alternative road to the
defendants to reach their house.
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6. The trial Court based on the pleadings framed
the necessary issues, in order to substantiate the claim of
the plaintiff, the plaintiff examined herself as PW1, one
witness as PW2 and marked documents at Exs.P1 to P3.
On the other hand, defendant No.1 examined himself as
DW1, two witnesses as DW2 and DW3 and marked
documents at Exs.D1 to D22. The Court Commissioner
was appointed before the trial Court who was examined as
CW1 and marked documents at Exs.C1 and C2.
7. The trial Court based on the pleadings, oral and
documentary evidence arrived at a conclusion, that:
(i) The plaintiff proved that she is in lawful
possession and enjoyment of the suit
property.
(ii) The plaintiff proved the alleged interference by
the defendants in the suit property
By the judgment and decree, the trial Court
dismissed the suit of the plaintiff.
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8. Aggrieved, the plaintiff preferred an appeal
before the First Appellate Court. On re-appreciation, the
First Appellate Court reversed the judgment of the trial
Court and decreed the suit of the plaintiff restraining the
defendants permanently from forming any road over the
suit property. Aggrieved, the defendants are before this
Court in the regular second appeal.
9. It is not in dispute that the plaintiff has
purchased the suit property from the erstwhile owner. The
plea of the plaintiff is that the defendants are trying to
form a road on the Western side of the suit property. The
claim of the defendants is that there is a road existing and
the plaintiff suppressing the existence of the road has
contended that the defendants are trying to form a road
on the Western side of the suit property. The ownership of
the plaintiff is not in dispute and when the defendants
contended that there is already a road existing from time
immemorial, the burden is on the defendants to prove
about the existence of the road from time immemorial.
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DW1 in his evidence deposed that there is an existence of
road and he has documents to produce the same.
However, no documents have been produced by the
defendants to show the existence of the road. The
defendants relied upon Ex.D7 dated 01.01.2015 to
contend that the Gram Panchayat has spent a sum of
Rs.33,687/- to form the road of Bengre Padushirali. Ex.D7
is just a self serving document and the author of Ex.D7 is
not examined as to show that there existed a road as
contended by the defendants.
10. It is the specific case of the plaintiff that the
defendants are trying to form a road on the Western side
of the suit property. The defendants have not placed any
materials to show that there was a road existing on the
Western side of the suit property from time immemorial.
11. The First Appellate Court while re-appreciating
the entire oral and documentary evidence has rightly
arrived at a conclusion that the plaintiff is entitled for
injunction and the manner in which the First Appellate
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Court has re-assessed the entire oral and documentary
evidence, this Court is of the considered view that the
same does not warrant any interference under Section 100
CPC. Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the First
Appellate Court stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
RH - till para 9;
PJ-last 3 paras/ Ct-PA
