Karnataka High Court
Sri U Ramadas Achar vs M/S Kiocl Ltd on 19 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:11389
RP No. 110 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REVIEW PETITION NO.110 OF 2024
IN
R.S.A.No.2603/2017
BETWEEN:
1. SRI. U. RAMADAS ACHAR,
AGED ABOUT 72 YEARS,
S/O LATE U.S. ACHAR,
R/AT NEAR K.I.O.C.L. COLONY,
KAVOOR, KAVOOR-BONDEL CHURCH ROAD,
MANGALURU - 575 015.
...PETITIONER
(BY SRI. NATARAJA BALLAL, ADVOCATE)
AND:
Digitally signed 1. M/S. KIOCL LTD.,
by DEVIKA M II BLOCK, KORAMANGALA,
Location: HIGH BENGALURU - 560034,
COURT OF REP BY ITS CHAIRMAN.
KARNATAKA
2. THE ESTATE OFFICER
KIOCL LTD., KAVOOR,
MANGALURU - 575 015.
...RESPONDENTS
(BY SRI. Y.K.NARAYANA SHARMA, ADVOCATE)
THIS REVIEW PETITION IS FILED UNDER ORDER XLVII
R/W SECTION 114 OF THE CPC, PRAYING TO REVIEW THE
ORDER DATED 24.08.2023 IN R.S.A.NO.2603/2017.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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RP No. 110 of 2024
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard the learned counsel for the review petitioner and
the learned counsel for the respondents.
2. This review petition is filed praying this Court to
review the order dated 24.08.2023 passed by this Court in
R.S.A.No.2603/2017 urging the ground that in the plaint the
boundaries are demarcated showing the survey line as on the
date of the suit and on the road widening, the petitioner/plaintiff
had access to the said road from his property and therefore the
finding of fact of the Courts below was to be accepted and the
respondent/defendant could not have found fault with. The
other ground urged in the petition is that the plaintiff had also
specifically contended in the appeal that after the suit was
decreed and the appeal filed by the respondent/defendant had
been rejected, it had forcefully erected the barbed fence
blocking the access to the road from the suit schedule property.
Now the removal of the finding of fact of the Courts below has
denied the access to the petitioner/plaintiff despite there being
no encroachment of the land of the respondent/defendant.
Merely because the petitioner/plaintiff showed that the survey
line was the northern side boundary, did not prove that there
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was land in between the defendant's land and of the suit
schedule property, more so when the Commissioner report was
unchallenged or denied and also when the petitioner/plaintiff
had clearly pleaded in the plaint that beyond the survey line
there was Kavoor-Bondel road as culled out supra. Hence, the
learned counsel contend that in view of this observation with
regard to paragraph No.19 of the appeal, the review petitioner
cannot enforce the decree and hence it requires interference of
this Court.
3. The learned counsel for the review petitioner during
the course of argument submits that the observation made by
this Court that 'now the plaintiff cannot contend that there is a
road' has to be removed from the order and it goes against the
review petitioner and hence this Court has to review the order
regarding the said observation. The learned counsel in support
of his argument brought to the notice of this Court the pleading
made in the plaint in page No.2 paragraph No.2 that towards
the northern side of the schedule property, the Government
PWD land is in existence and Kavoor-Bondel road runs therein.
In between the said PWD land and the schedule property, there
is a compound wall so as to bifurcate the said property. When
such pleading is made in paragraph No.2, though boundary on
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the northern side shown as survey line, ought not to have made
such an observation.
4. Per contra, the learned counsel for the respondents
filed the statement of objections to the review petition and
contend that there is no dispute between the petitioner and the
respondent No.1 that they are owning lands adjoining to each
other. There is also no dispute that the northern boundary of
the land of the respondent is the Kavoor-Bondel road. It is also
not in dispute that the petitioner has got entry to his land from
the road on the south and there is a compound wall and gate on
the southern side of his property. The land in Sy.No.83/P
belongs to respondent No.1 and the same touches the road on
the north and the petitioner has no claim over the said land.
The land claimed by the petitioner is to the south of the
respondent's land. The petitioner has no entry to the road on
the north from his property and he has entry only from the road
on the south and he is in fact using the said entry on the south
keeping a gate also facing the said road on the south. An
attempt was made by the petitioner to have an entry to the road
on the north by making untenable claims. The learned counsel
contend that an attempt is made to mislead the Court bringing
to the Court notice paragraph No.2 of the plaint. The learned
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counsel contend that this Court has given the reasoning taking
note of the boundary description given on the northern side that
there is a survey line and hence comes to the conclusion that
the plaintiff cannot contend that there exists road on the north
side. The learned counsel contend that there is no error
apparent on the face of the record or mistake in the judgment
dated 24.08.2023 or any other reasons for reviewing the
judgment dated 24.08.2023 and in the absence of any error on
the face of the record, the question of reviewing the order does
not arise exercising the review jurisdiction. Hence, prayed this
Court to dismiss the petition.
5. Having heard the learned counsel for the petitioner
and the learned counsel for the respondents, this Court while
considering the matter only made an observation with regard to
the observation made by the Appellate Court in paragraph No.19
and this Court in paragraph No.8 held that the fact is that he
has purchased the property in the year 1987 but though he
relies upon the document of the year 1989 there is an
encroachment, he has not sought any relief of possession
contending that there is an encroachment but the counsel
submits that in view of the formation of the road, now the
encroached portion has become road and when the defendants
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denied the very contention that the same became as road on
the northern side, defendants' claimed that the said property
belongs to them on the northern side of the property of the
plaintiff Sy.No.83 is in existence. When such being the case, in
view of the pleadings and description shown in the plaint are
concerned, northern side boundary is survey line and now the
plaintiff cannot contend that there is a road. The learned
counsel for the petitioner contend that the said observation has
to be removed.
6. This Court while considering the R.S.A., particularly
taken note of paragraph No.14 of the judgment of the Appellate
Court, wherein observation is made that it is clear that Bondel-
Kavoor road touches to the plaint schedule property and in
between the appellant/defendant have not owned any property
and the said observation is erroneous and comes to the
conclusion that both the Courts considered the point with regard
to cut and removal of the compound and comes to the
conclusion that both the parties have proved their possession
over their respective properties and granted an order of
permanent injunction and perpetual injunction and declined to
grant the relief of mandatory injunction and hence this Court
comes to the conclusion that I do not find any error in the order
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except the observation made by the First Appellate Court in the
appeal in paragraph No.19 regarding claim of the road in view of
the northern boundary mentioned as survey line. No doubt, the
learned counsel for the petitioner brought to the notice of this
Court the averment made in paragraph No.2 of the plaint,
wherein also it is not specifically pleaded that on the northern
side there is a road and even in the boundary description also, it
is mentioned on the northern side as survey line and not as
road. When such pleading was taken note of by this Court and
when there is no error apparent on the face of the record and
considered the material on record, the question of exercising the
review jurisdiction does not arise and the grounds which have
been urged also are not that of error apparent on the record
while making such observation and the same has been
considered taking note of the pleading as well as the boundary
description given by the plaintiff himself as northern side as
survey line. Hence, did not accept the contention of the
respondent in the R.S.A. that there exists a road and there was
no any amendment to that effect also that after the formation of
the road on the northern side of the suit schedule property,
there was a road. When such being the case, I do not find any
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error apparent on record and hence the question of exercising
review jurisdiction does not arise.
7. In view of the discussions made above, I pass the
following:
ORDER
The review petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
