Karnataka High Court
Ningappa S/O Golappa Korali vs Ningappa S/O Basappa Tanekedar on 3 December, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 3RD DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
REGULAR SECOND APPEAL NO.7270 OF 2009
CONNECTED WITH
REGULAR SECOND APPEAL NO.7271 OF 2009
IN RSA No.7270/2009
BETWEEN:
1. BHARMANNA
S/O GOLAPPA KORALLI
AGE ABOUT 35 YEARS
OCC: AGRICULTURE
R/O MALAKAPUR
TQ. SHORAPUR
DIST. GULBARGA - 584 010
2. IRAPPA
S/O GOLAPPA KORALLI
AGE ABOUT 30 YEARS
OCC: AGRICULTURE
R/O MALAKAPUR
TQ. SHORAPUR
DIST. GULBARGA ... APPELLANTS
(BY SRI R.S.SIDHAPURKAR, ADVOCATE)
AND:
NINGAPPA
2
S/O DATTPPA TANEKEDAR
AGED ABOUT 50 YEARS
OCC: AGRICULTURE
R/O MALAKAPUR
TQ. SHORAPUR
DIST. GULBARGA - 584 010
... RESPONDENT
(BY SRI VENKATESH HULIKAL, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 3.12.2007 PASSED IN R.A.NO.12/2007 ON THE FILE OF
THE CIVIL JUDGE (SR. DN.) SHORAPUR, SITTING AT
SHAHAPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 31.1.2007 PASSED IN
O.S.NO.207/2000 ON THE FILE OF THE CIVIL JUDGE (JR. DN.)
SHORAPUR.
IN RSA No.7271/2009
BETWEEN:
1. NINGAPPA
S/O GOLAPPA KORALLI
AGE ABOUT 51 YEARS
OCC: AGRICULTURE
R/O MALAKAPUR
TQ. SHORAPUR
DIST. GULBARGA
2. IRANNA
S/O GOLAPPA KORALLI
AGE ABOUT 37 YEARS
OCC: AGRICULTURE
R/O MALAKAPUR
TQ. SHORAPUR
DIST. GULBARGA
... APPELLANTS
(BY SRI R.S.SIDHAPURKAR, ADVOCATE)
3
AND:
1. NINGAPPA
S/O BASAPPA TANEKEDAR
AGED ABOUT 50 YEARS
OCC: AGRICULTURE
2. HANMANTHARAYA
S/O SANGAPPA TANEKEDAR
AGED ABOUT 45 YEARS
OCC: AGRICULTURE
3. SHIVAPPA
S/O SIDDAPPA TANKEDAR
AGE: 42 YEARS
OCC: AGRICULTURE
ALL ARE R/O VILLAGE MALAKAPUR
TQ: SHORAPUR
DIST: GULBARGA - 584 010 ... RESPONDENTS
(BY SRI SANJAY A. PATIL, ADVOCATE FOR C/R2,
NOTICE TO R1 & R3 SERVED & UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 3.12.2007 PASSED IN R.A.NO.15/2007 ON THE FILE OF
THE CIVIL JUDGE (SR. DN.) SHORAPUR, SITTING AT
SHAHAPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 31.1.2007 PASSED IN
O.S.NO.244/2000 ON THE FILE OF THE CIVIL JUDGE (JR. DN.)
SHORAPUR.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
RSA No.7270/2009 arises out of O.S.No.207/2000 filed by the respondents herein for bare injunction. RSA No.7271/2009 arises out of O.S.No.244/2000 filed by the appellants herein for declaration and for injunction.
2. Since both the appeals are in respect of right of way, both the appears are heard together and disposed of together by this common judgment.
3. Case of the appellants is that they are the owners of property bearing Sy.No.44A whereas the respondents herein are the owners of Sy.No.31; according to them, there is 8 feet width of cart way in the land of the respondents and that the same is made use of by the appellants and other villagers since a long time; respondents are interfering with the right of the 5 appellants relating to the ingress and egress over the property.
It is the case of the respondents that what lies adjoining the property bearing Sy.No.31 is only the pathway and no cart way and therefore, appellants have got every right to use the pathway for taking water etc., and same cannot be used as cart way.
Respondent herein filed O.S.No.207/2000 for bare injunction restraining the appellants from using the way as cart way; whereas the appellants herein filed O.S.No.244/2000 for declaration that they have got the right to use the cart way and for injunction restraining the respondent herein from using the right of way.
4. The Trial Court dismissed O.S.No.244/2000 of the appellants herein and decreed the suit of the respondent herein i.e., O.S.No.207/2000 and 6 consequently, the Trial Court restrained the appellants from using the area in question as a way. The First Appellate Court modified the judgment and decree passed by the Trial Court and has held that the appellants have got right of ingress and egress by using the way as a pathway and not a cart way.
5. There is oath against the oath. Both the parties have laid their evidence in respect of their respective case. Ex.P1 is the public document. It is the map of Malakapur village. It indicates the existence of 'kalu dari' i.e., pathway, 'bandi dari' i.e., cart way and 'Haddu Hiduvali dari. Pathway is shown in the single doted lines, cart way is shown in two dotted lines and Haddu Hiduvali dari is shown by two lines. Ex.D5 is also the map of Malakapur village produced by the appellant herein. This map clearly shows the existence of single dotted line on the boundary of Sy.No.31. 7 Nowhere the cart way is shown adjacent to Sy.No.31. The respondent also admits the existence of pathway in Sy.No.31. Even Exs.D1 and D5 nullify the existence of cart way in Sy.No.31. Since the public document clearly reveals the path way and not the cart way, same is in the judgment of the First Appellate Court.
6. Since the appreciation of the material on record is property done by the First Appellate Court, no interference is called for in these appeals. No question of law much less substantial question of law arises in these appeals. Hence, the appeals fail and same stand dismissed at the stage of admission.
Sd/-
JUDGE.
NB*