Karnataka High Court
Sri.Vinayak S/O. Nagappa Shet vs Shri.Annappa S/O. Ratnakar Shet on 30 October, 2024
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NC: 2024:KHC-D:16003
RSA No. 100044 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100044 OF 2019 (INJ)
BETWEEN:
SRI. VINAYAK S/O. NAGAPPA SHET
AGE: 69 YEARS,
OCC. RETD. GOVT. EMPLOYEE,
R/O. BAGGON, TQ:KUMTA,
DIST. KARWAR (U.K)-581343.
... APPELLANT
(BY SRI. S.L.MATTI, SRI. Y.S.KHANAPUR, ADVOCATES)
AND:
SHRI. ANNAPPA S/O. RATNAKAR SHET
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
AGE: 37 YEARS, OCC. GOLDSMITH,
Location: HIGH
COURT OF
R/O. BAGGON, TQ. KUMTA,
KARNATAKA
DHARWAD BENCH DIST. KARWAR (U.K)-581343.
... RESPONDENT
(BY SRI. S V YAJI, ADVOCATE)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DATED 10.10.2018 PASSED IN
R.A.NO.47/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE,
KUMTA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 01.09.2016, PASSED IN O.S.
NO.35/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, KUMTA, DECREEING THE
SUIT FILED FOR PERMANENT INJUNCTION.
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NC: 2024:KHC-D:16003
RSA No. 100044 of 2019
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
ORAL JUDGMENT
Assailing the concurrent findings of facts recorded by
the Courts below, the defendant is before this court in
regular second appeal.
2. Parties are referred to as per their rank before
the trial Court for the sake of convenience.
3. Suit seeking declaration and injunction in
respect of Sy.No.48/B1 measuring 0-2-8 (hereinafter
referred to as the 'suit property' for short). It is the case of
the plaintiff that he is the son of one Netravati, sister of
defendant. Defendant under a registered sale deed on
16.02.2006 has sold the suit property in favour of the
plaintiff. After the purchase, the plaintiff has constructed
the residential house and dug a well in the suit land. It is
the case of the plaintiff that on the Northern side of the
suit property, the land of the present defendant and his
NC: 2024:KHC-D:16003
brothers are situated and the boundaries are clearly
marked in between suit properties, i.e. Sy.No.48/B1 of
plaintiff and Sy.No.48C of the defendant. That the plaintiff
started to construct a compound wall as the existing fence
which divided the land of the plaintiff and defendant was
torn, the defendant objected the construction of the
plaintiff and hence, present suit for declaration and
injunction.
4. Defendant's plea is that prior to sale of the suit
property to the plaintiff, the defendant was in possession
of the said well, gate and compound wall for more than 10
years and only he has got right to use the same. The
defendant denied that the well and gate as well as the
compound wall was build by the plaintiff.
5. The trial Court based on the pleadings, framed
necessary issues. In order to substantiate the claim, the
plaintiff examined himself as PW1 and marked documents
at Exs.P1 to P7. On the other hand, defendant examined
himself as DW1 and marked documents at Exs.D1 to D10.
NC: 2024:KHC-D:16003
6. The trial Court based on the pleadings, oral and
documentary evidence, arrived at a conclusion that (i) the
plaintiff is in possession over the suit property as on the
date of the suit; (ii) That the defendant is interfering with
the construction of the compound wall towards the
Northern side of the suit property; (iii) by the judgment
and decree, the trial Court decreed the suit and declared
the plaintiff as the owner and directed the defendant not to
obstruct the plaintiff in constructing the compound wall
and for usage of his property.
7. Aggrieved, the defendant preferred appeal
before the First Appellate Court. The First Appellate Court
while re-appreciating and reconsidering the entire oral and
documentary evidence, confirmed the judgment and
decree of the trial Court.
8. Aggrieved, the defendant is before this Court in
this regular second appeal.
NC: 2024:KHC-D:16003
9. Heard learned counsel appearing for the parties
and perused the material on record.
10. Undisputed fact is that the defendant under the
registered sale deed dated 16.02.2006 at Ex.P6 sold the
suit property to the plaintiff and from the date of purchase,
the plaintiff is in actual possession and enjoyment of the
suit property. Ex.P6 dated 16.02.2006 is the registered
sale deed and the recital of the sale deed states that
water, way and other easement rights which were there in
the property have been transferred. The relevant portion
of the recital of the sale deed reads as under:
"F ¥ÀæPÁgÀ ¸ÀܼÀ F ªÉÆzÀ®Ä EzÀÝ ¤ÃgÀÄ, zÁj ªÀUÉÊgÉ AiÀiÁªÀvÆ
À Û FdªÉÄAl
ºÀPÀÄÌUÀ¼ÀÄ F PÀæªÄÀ zÀ¸ÛÉêÀfUÉ M¦à¢ÝgÄÀ vÀÛzÉ JAvÁ £ÁªÀÅ £ÀªÀÄä DvÀä
¸ÀAvÉÆõÀ¢AzÀ®Æ CPÀÌ® ºÀıÁj¬ÄAzÀ®Æ §gɬĹ PÉÆlÖ ¸ÁܪÀgÁ¹Û ªÀiÁ°Ì RÄzÀÝ
PÀ§eÁ ©£À߸ÉÃwÌ ¸ÀܼÀzÀ RArvÀ PÀæªÄÀ zÀ¸ÛÉêÀdÄ."
11. The Court Commissioner was appointed by the
trial Court and who submitted the report to the effect that
the well was situated in the property of the plaintiff i.e. the
suit property in Sy.No.48/1B and it has been clearly
NC: 2024:KHC-D:16003
demarcated and in the suit property, the plaintiff has put
up construction of compound wall to protect the property
of the plaintiff. The trial Court and the First Appellate Court
arrived at a conclusion that the properties of the plaintiff
and the defendant are having separate right of way to
reach the public pathway and in the light of the recital of
the sale deed, the property sold is along with the right of
the well water and other appurtenance. The Courts below
have rightly assessed the entire oral and documentary
evidence. The manner in which the Courts below have
considered the entire oral and documentary evidence, this
court is of the considered view that the same does not
warrant any interference in this appeal, accordingly, this
Court pass the following:
ORDER
i) The Regular Second Appeal is hereby
dismissed.
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ii) The judgment and decree of the Courts below
stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
RH
