Karnataka High Court
Mahadevappa S/O Puttappa vs Mariswamy S/O Veerappa Devaru on 1 October, 2010
Author: K.Govindarajulu
Bench: K.Govindarajulu
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15"' DAY OF OCTOBER 20 10;' -1
BEFORE
THE HON'BLE MR JUSTICE K GOV1NDA£éA;3U:gUV""' ~
REGULAR SECOND APPEAL 'I357 20 10:4'
BETWEEN:
MAHADEVAPPA.
AGED ABOUT 77 YEARS, I
S/O PUTFAPPA.
KESTUR VILLAGE, ..
YALLANDUR TALUK, . -A 2 - .
CH.N\/IRAJNAGARD.IS-RIC'{I'-- 57i.I3.1V3~.~."_-._ ' "
BENEFIT OF' SENIO1E{'CI'I1ZEN _ "
NOTCLAIMED." ' ...APPELLANT
(BY SR1 P..vS;'MA:N.IIUNi;A¢TH'~AND I
SRI T.P.V.IVEKANANDA,V%A§)V*sv,_) _ --
AND:
MARISWAMY, "
_ . AGED. ABOUT 52nIY'EARS,¢.
S"/O VEEEAPPA DEVARU,
A"gKI+_'.S'FI IR VILLAGE,
YEL'}V,ANDUIg&I'I:AEU'£:,
CI~L'xNI--RI%JN.'\fGA}:'€.'_. 'DISTRICT
, P1NCQDE:.57:--}_318. ...RESPONDENT
. (BY SRI NEAHANTESH SHOSMATH, ADV.) .VVO'I4'I'_{IS RSA IS FILED UNDER SECTION 100 OF CFC, AGAINST THE JUDGMENT AND DEGREE DATED '23.G;2.201o PASSED IN R.A.NO.58/2007 ON THE FILE THE .,4C-IVIL JUDGE, (SR.DN.) OHAMARAINAGAR, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DEGREE DATED 13.04.2007 PASSED IN O.S.NO.80/250003 ON THE FILE OF THE COURT OF CIVIL JUDGE. AND JMFC, YELANDUR.
THIS APPEAL COMING ON FOR AoMIss:o1~r&*His:". A A- DAY, THE COURT DELIVERED THE FOLLOWINQ : ' * Advocate for the appe11ant;"i«'an.d0 "VI:
present.
2. Plaintiff in osso/03,oii"$t1-ieifile ofifCivi.1~'§Judge (Jr.Dn.) & JMFC, Ye1andi1r_i's
3. 'Parties W31} ..be.ireferred 'according to their status in the suit for coVn\}c.nie.n'ce';.'~ ' 41. -.I§3ss'e.n'tia_1 facts necessary for the consideration areas"tindei*§"rj'j Sarina' Maddappa, grand father of plaintiff & his were owners of land in Survey No.844/ 2,3 & 4. Survey 1\Eo.8~'~L4/ 4 measuring 7 guntas and I0 guntas of Survey n0.84-4/3 are sold by Parvathamma w..__/_'_o Devappa to her daughter Sanna Subbamma. Subbamma has sold it to her uncle Subbappa.':.:and:VVth'e V' defendant. During the time of"'' Sarina .:
thereafter the parties were Venjoyingta rigtili-v*._t'.A'of through a path way situated""oiT\thevh north schedule property are enjoying the pathway for While so defendant not upto pathway but also this act of the deferidantis of pathway. So seek for pexjnianent'iAnjunt:t'i'ori. This case of plaintiff is resisted' --veonteriding"' defendant has constructed RCC earlier to fiiing of Written statement, to re'a_ch"_the~fhoVus.eV.--he has to cross a channel, s he has V dd putupwa bfidge , with a width that of 7 feet so it is not a if M if pwathwuay as contended so plead for dismissal of the suit.
5. Learned trial Judge has framed issues, permitted parties to lead evidence PW1 to Pwé exaniined EXP} to P8 are marked. DWL2 are _ ExDl to D29 are marked. DES marlged is it CW1 is examined. Cl to C10 are riiléarlgedi' A
6. Learned Trial Judge hasiansvvered fqllowing issues with the f0li0uring'll'reasQi§i,:, vvhile"idismissing the suit: "
Cr
1. .... _ t, proves the elxisfitencii '0f4"=patlr1way detailed in the '--SCh€Ci'1i1€_&I1Iire}{€d ' to the plaint?
2. "Whether 'th"e,"_p1ajntiff further proves
-- L that he hat}. perfected his right of way V ' over the_sai_.d path way by prescription, and easement of necessity as alleged Kbyf him?
" A the Plaintiff further proves ' ' that he has been using the said path way as on the date of suit and earlier " to it Whether the obstructions pleaded it true'?
5. Whether the plaintiff is entitled for the relief of Permanent injunction as prayed in the plaint'?
6. What relief or Decree'? Issue No.1 :
Issue No.2 :
Issue No.3 :
Issue No.4 :Issue No.5 2
Issue No.6 :
FINDINGS In the negative In the ;négauve'._ V In the negative Inthe negative In the negative Aslpezrfinal orders'.= p belovv- for the follovvingf reasons; V Dis--satisfied plaintiff has the file of own Judge gsr;pn.;. :i._IniI§p__V:lIf.inder Order 26 Rule 9 and Order 4 of Rule 27 are filed. Learnledd lltlasiraised the following points and '.ansvv:ef:ed__ptl1em as"fol__1__ows, while dismissing the appeal: ISSUES the evidence of the plaintiff is .._sufficient to appreciate the right of way ~~ as clamed'?
Whether the plaintiff is entitled for the relief of injunction?
3. What order'?
FINDINGS Point No.1 : Negatively Point No.2 : Negatively Point No.3 : As per the final orrigier ll".
Learned Advocate for Plaintiff c§;nte--nds pathway is proved, it is not l'.app_reeiat'ed,*~_ so"
substantial question arise.
firstly on the frame of declaration is not sought, so suit itself' Secondly that by way of prescription is not definite of
7. Learned the respondent submits that tl§1e1'e_ is llconciirrelfit "finding. He further submits "itself is not maintainable as the plaintiff se'eks'.__pfo'r permanent injunction in regard to an _easeni:ent--..'.Witf1out seeking for declaration. invites the the Court to paragraph 23 of the Judgment trial Court.
8. Where a right of the person is disputed, the person has to seek a declaration under section 34 ofg'the Specific Relief Act 1963. In the facts of the no.1 framed would probablise right claimedflis. and plaintiff is called upon to profile declaration is consonance with_'Sec;3p4"'of Relief if Act 1963 Esfimiheconnng. in paid 24'c£fhe;3sag¢ of Trial Court, this is in spite of such a findings steps plaintiffs frame the T' law. Further, plaintiff claiins that transactions in regard to Survey nlo.-$14. I\fot-even single document of title is of user for more than 60 years, .iis.~v'no substantial question of law as w1i1'ged. So at_"tlief"'stage of admission appeal is rejected. Sdf§ Iudgé