Karnataka High Court
Ningappa S/O Basappa Barki vs Yashavantappa S/O Melappa Tuvar on 2 June, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 100369 of 2018
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JUNE 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
RSA NO.100369/2018 (DEC/ INJ)
BETWEEN:
NINGAPPA
S/O. BASAPPA BARKI,
AGE: 58 YEARS, OCC: AGRIL,
R/O: LINGADAHALLI - 581 115,
TQ: RANEBENNUR, DIST: HAVERI.
... APPELLANT
(BY SRI. S. G. KADADAKATTI AND
SRI. LINGESH KATTEMANE, ADVOCATES)
AND:
Digitally signed by
SAROJA
HANGARAKI
Location: High
Court of 1. YASHAVANTAPPA
Karnataka,
Dharwad Bench,
Dharwad S/O. MELAPPA TUVAR @ GODDANAVAR,
AGE: 71 YEARS, OCC: AGRIL,
R/O: LINGADAHALLI - 581 115,
TQ: RANEBENNUR, DIST: HAVERI.
2. HALAPPA
S/O. MELAPPA TUVAR @ GODDANAVAR,
AGE: 64 YEARS, OCC: AGRIL,
R/O: LINGADAHALLI - 581 115,
TQ: RANEBENNUR, DIST: HAVERI.
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RSA No. 100369 of 2018
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3. MAHANTESAPPA
S/O. MELAPPA TUVAR @ GODDANAVAR,
AGE: 62 YEARS, OCC: AGRICLTURE,
R/O: LINGADAHALLI - 581 115,
TQ: RANEBENNUR, DIST: HAVERI.
4. NEELAPPA
S/O. MELAPPA TUVAR @ GODDANAVAR,
AGE: 54 YEARS, OCC: AGRIL,
R/O: LINGADAHALLI - 581 115,
TQ: RANEBENNUR, DIST: HAVERI.
5. RAMESHAPPA
S/O. ANANDAPPA TUVAR @ GODDANAVAR,
AGE: 56 YEARS, OCC: AGRICLTURE,
R/O: LINGADAHALLI - 581 115,
TQ: RANEBENNUR, DIST: HAVERI.
... RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING TO CALL FOR RECORDS;
SET ASIDE THE JUDGMENT AND DECREE DATED
12.01.2018 PASSED BY THE COURT OF II ADDITIONAL
SENIOR CIVIL JUDGE RANEBENNUR, IN R.A.NO.88/2015 BY
CONFIRMING THE JUDGMENT AND DECREE DATED
01.08.2015, PASSED BY THE COURT OF PRL. CIVIL JUDGE
AND I ADDITIONAL JMFC, RANEBENNUR, IN
O.S.NO.432/2011; DECREE THE SUIT OF THE PLAINTIFF AS
PRAYED IN THE PLAINT AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100369 of 2018
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ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
This appeal is by the plaintiff aggrieved by the
judgment and decree dated 01.08.2015 passed in OS
No.432/2011 on the file of Principal Civil Judge and I
Additional JMFC Court, Ranebennur (for short 'Trial Court')
which is confirmed by the judgment and order dated
12.01.2018 passed in RA No.88/2015 on the file of II
Additional Senior Civil Judge, Ranebennur (for short 'First
Appellate Court') by which suit of the plaintiff has been
dismissed.
2. The above suit in OS No.432/2011 has been filed
by the plaintiff seeking declaration of his easementary right
over the 'suit way' having width of 10 ft., and length of 200
mtrs., which is described in hand sketch annexed to the
plaint as 'GHEF'; and for consequential relief of permanent
injunction restraining the defendants from interfering with
peaceful enjoyment of the 'suit way' by the plaintiff to reach
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his land situated towards eastern side of the lands of
defendants.
3. Case of the plaintiff is that, he is the owner of
the land bearing RS No.27/2A measuring 6 acres 17 guntas
situated at Kotihala village which is described in the hand
sketch as 'ABCD'. That the land bearing RS No.28/1
measuring 2 acres 25 guntas, which is shown in letters
'KFLJ' in hand sketch belongs to defendants No.1 to 4. That
the land bearing Sy.No.28/2 measuring 2 acres 25 guntas,
which is shown in letters 'JIEK' in the hand sketch belongs
to defendant No.5. That the aforesaid lands of the
defendants No.1 to 5 are situated on the western side of
the land belonging to the plaintiff.
4. That Lingadahalli-Holeanvery road running north
to south is situated on the western side of the lands of the
defendants, abutting Upper Tunga channel on its western
side.
5. The 'suit way' measuring 10 ft. width X 200
mtrs., shown in letters 'GHEF' of the hand sketch is existing
on the southern end of the lands of defendants No.1 to 5,
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connecting the aforesaid Lingadahalli-Holeanvery road and
the land of the plaintiff. The said 'suit way' has been used
by the plaintiff and his antecessors for over 50 years, to
reach the land of the plaintiff. As such, the plaintiff has
acquired easementary right by way of prescription over the
'suit way'. That except the 'suit way', there is no other
alternate way available for the plaintiff to reach his land.
6. That the defendants have caused unnecessary
obstructions for the plaintiff in making use of the 'suit way'.
As such, he made a representation to Tahsildar on
11.07.2011. In turn, the Tahsildar directed the Revenue
Inspector, Kuppelur to inspect disputed area and submit a
report. The Revenue Inspector submitted a report showing
the existence of the 'suit way'. Since the defendants have
caused obstruction to the plaintiff in making use of the 'suit
way', the plaintiff has filed the suit seeking reliefs as noted
above.
7. Defendant Nos.1 to 5 appeared through their
counsel. Defendant No.2 has filed written statement which
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is adopted by the other defendants. While denying the very
existence of the 'suit way' as claimed by the plaintiff, it is
specifically contended that, the land in RS No.27 is sub-
divided as RS No.27/1A/2 belonging to one Kudarihala
Fakkirsab, who has not been arraigned as a party to the
suit. It is further contended that, on the western side of the
land in R.S No.28, the Government acquired an extent of 1
acre 5 guntas during the year 2005-06 for the purpose of
construction of the Upper Tunga Channel. To protect the
said channel, the Irrigation Department constructed a bund.
Except the Irrigation Department, no other person has any
right to pass through the said bund.
8. It is further contented that there is a road to the
plaintiff's land towards its northern side, as seen in the
village map, which runs in the East - West direction,
connecting Kotihala - Holeanvery road. That the plaintiff
has been using the said road for a long time to reach his
land. The present suit has been filed by the plaintiff with the
intention of creating a new road on the land belonging to
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the defendants, which never existed. Hence sought for
dismissal of the suit.
9. The Trial Court, based on the pleadings, framed
the following issues:
1. Whether the plaintiff proves that, there is a
way shown by the letters EFGH in the hand
sketch map annexed to the plaint and this is
the only way to go to his land in R.S.
No.27/2A?
2. Whether the plaintiff proves that, he has
ownership right over the said EFGH way by
means of user of the said way continuously?
3. Whether the plaintiff further proves obstruction
by the defendants in user of the said EFGH way
as alleged in the plaint?
4. Whether the defendant proves existence of
alternative way available to the plaintiff to go
to the R.S. No.27/2A?
5. Whether the plaintiff is entitled for declaration
of ownership over the said EFGH way and for
consequential injunction?
6. What order of decree?
Re-casted Issue No.2:- Whether plaintiff prove
that, he has got easement right of way by way of
prescription over 'EFGH' suit way as shown in hand
sketch?
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Re-casted Issue No.5:- Whether plaintiff is
entitled for easement right of way over suit way as
prayed for in the plaint?
7. Before the Trial Court, the plaintiff examined
himself as PW1 and three other witnesses as PW2 to PW4.
He also produced 53 documents, which were marked as
Exhibits P1 to P53. Defendant No.5 examined himself as
DW1 and two other witnesses as DW2 and DW3. He
produced 20 documents, which were marked as Exhibits D1
to D20.
8. On appreciation of the oral and documentary
evidence, the Trial Court answered issue Nos.1, 2, 3 and 5
in the negative and issue No.4 in the affirmative, and
accordingly dismissed the suit of the plaintiff.
9. Being aggrieved by the judgment, the plaintiff
preferred appeal in R.A. No.88/2015. The First Appellate
Court, considering the grounds urged in the memorandum
of appeal, framed the following points for its consideration:
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1. Whether the trial Court erred in holding that,
plaintiff fails to show the existence of EFHG
pathway?
2. Whether the trial Court erred in holding that,
plaintiffs fails to establish his right of way by
prescription?
3. Whether the appellant has made out sufficient
grounds to allow I.A. No.4 under Order 26 Rule
9 of CPC?
4. Whether trial Court erred in dismissing the suit
of plaintiff?
5. Whether the judgment and decree of the trial
Court needs interference by this Court?
6. What order or decree?
10. On re-appreciation of the evidence, the First
Appellate Court has answered point Nos.1 to 5 in the
negative and, consequently, dismissed the appeal, thereby
confirming the judgment and decree passed by the Trial
Court.
11. Being aggrieved by the concurrent findings and
conclusions arrived at by the Trial Court and the First
Appellate Court, the plaintiff is before this Court.
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12. Learned counsel for the appellant, reiterating the
grounds urged in the memorandum of appeal, submits that
the Trial Court and the First Appellate Court failed to
consider the contents of the written statement, wherein the
defendants admitted the existence of the Upper Tunga
Water Channel by the western side of the road which is
exclusively used by the Irrigation Department. He insists
that the Trial Court and the First Appellate Court ought to
have inferred that the plaintiff has been using the said road
and take turn towards east to reach his land, through the
'suit way' and as shown in the hand sketch, for over 50
years. That this admitted piece of evidence has been
ignored by both the Courts, resulting in perversity in the
impugned judgments.
13. He further submits that finding of the Trial Court
and the First Appellate Court regarding existence of an
alternative road for the plaintiff, is contrary to the material
evidence made available on record, more particularly the
report of the Revenue Inspector, who has confirmed the
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existence of the 'suit way' on the southern side of the lands
belonging to the defendants, being used by the plaintiff and
his ancestors since time immemorial. He further submits
that the Trial Court and the First Appellate Court ought not
to have placed undue reliance on the village map at Ex.D14
to come to the conclusion that there was no indication of
the cart road existing in the properties of the defendants.
14. That the First Appellate Court erred in rejecting
the application filed by the plaintiff seeking the appointment
of a Commissioner, which would have brought additional
material evidence for the effective disposal of the dispute
between the parties. Thus, he submits that non-
consideration of these aspects of the matter by the Trial
Court and the First Appellate Court has given rise to
substantial questions of law requiring adjudication at the
hands of this Court.
15. Heard and perused the records.
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16. Since there is no dispute with regard to the claim
of the plaintiff as well as the defendants with regard to their
ownership over the lands in R.S. No.27/2A, 28/1 and 28/2,
respectively there is no need to delve into on that aspect of
the matter.
17. The plaintiff has specifically claimed and alleged
that on the southern side of the lands belonging to
defendants No.1 to 5, there exists a road measuring 10 feet
in width and 200 meters in length, connecting the
Lingadahalli - Holeanvery Channel road and his land in
Sy.No.27/2A. The said road is marked as 'EFHG' in the hand
sketch. In other words, the plaintiff is seeking declaration of
he acquiring right of way by way of prescription over the
aforesaid extent of land, forming part of the lands belonging
to the defendants.
18. In support of his pleadings and contentions, the
plaintiff relies upon his application dated 11.07.2011,
produced as Ex.P5, and the report of the Revenue Inspector
dated 10.08.2011, produced as Ex.P6, which was submitted
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pursuant to the direction issued by the Tahsildar. The rest
of the documents are the revenue records and the
photographs.
19. It is not uncommon that amidst agricultural lands
there will be area earmarked for pathways (PÁ®ÄzÁj) and cart
road (§ArzÁj) to be used as access and for agricultural
purposes. Which is seen even in the present case as per the
village map produced at Ex.D14. The plaintiff is however
specifically claiming existence of 'suit way' having width of
10 ft. and length of 200 mtrs., on the southern end of the
lands belonging to defendant Nos.1 to 5. Therefore, plaintiff
is required to establish the same by leading cogent and
acceptable evidence.
20. A bare perusal of application at Ex.P5 would
indicate that the plaintiff has contended that there was a
pathway (NqÁqÀĪÀ zÁj) running through the land in
Sy.No.28 which was the only access to reach his land in
Sy.No.27 and the same has been obstructed by the
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defendants. A report submitted by the Revenue Inspector
as per Ex.P6 in response to the direction issued by the
Tahsildar would indicate that the Revenue Inspector had
visited the spot and enquired with the defendants who had
indicated that they have no objection in plaintiff utilizing
their land as pathway when there is no crops in their lands
without causing any obstruction to the defendants. The
Revenue Inspector in his report has specifically pointed out
that there is no existence of road as claimed by the plaintiff
in the lands of the defendants, providing access to the land
of the plaintiff in Sy.No.27. Except these two documents,
the plaintiff has not produced any other documentary
evidence to indicate the existence of suit road/way
measuring 10ft. X 200mtrs., as marked in the hand sketch
by letters 'GHEF'. Necessary also to note that though the
plaintiff has given description of the pathway in the hand
sketch with the measurement as 10ft., X 200 mtrs., there is
no such mention/description in his application as per Ex.P5
made before the Tahsildar complaining obstruction.
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21. In the cross examination recorded on
08.12.2014, the plaintiff has admitted that the defendants
pass through south-western corner of their property.
However, denied that there is no existence of the road as
claimed by him. He also admitted that there is no document
to justify his claim of defendant Nos.1 to 5 having provided
the 'suit way'.
22. The Trial Court on appreciation of the oral and
documentary evidence have found that the plaintiff has
failed to prove the very existence of 'suit way'. When the
plaintiff has in the first instance failed to prove the
existence of the 'suit way', the question of he acquiring the
right by prescription over the same would not arise. This
finding of facts based on the oral and documentary
evidence is re-appreciated by the First Appellate Court
which has concurred and confirmed with the reasoning in
conclusion arrived by the Trial Court. This Court therefore
do not see any reason to interfere with the factual finding
and conclusion arrived at by the Trial Court and the First
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Appellate Court based on the evidence produced by the
parties.
23. As regards the existence of alternate way is
concerned, the Trial Court while answering issue No.4, at
paragraphs 35 and 36 has found that towards eastern side
of land in R.S. No.27 there exist land in R.S. No.23. On the
eastern side of the said land in R.S.No.23, there exist
Kotihala-Lingadahalli road as seen in Ex.D14 village map
and admittedly plaintiff pass from south to north and take
turn in west - east direction to go to his land.
24. In the light of the aforesaid evidence, the claim
of the plaintiff with regard to existence of 'suit way'
specifically measuring 10ft. X 200 mtr., not having been
established, the appreciation of evidence, reasoning and
conclusion arrived by the Trial Court resulting in dismissal
of the suit and confirmed by the First Appellate Court
cannot be found fault with. No substantial question of law
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therefore would arise for consideration. Accordingly, the
appeal is dismissed.
Sd/-
(M.G.S. KAMAL)
JUDGE
SMM - para 1 to 3
VNP - para 4 to 16
VMB - para - 17 to till end
