Karnataka High Court
Shankaraiah vs The Chief Secretary on 5 March, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
REGULAR SECOND APPEAL NO.2504 OF 2018 (INJ)
BETWEEN:
SHANKARAIAH
SON OF NANJAPPA,
AGED ABOUT 48 YEARS,
R/AT BARAGUR VILLAGE
HANDANAKERE HOBLI,
CHIKKANAYAKANAHALLY TALUK,
TUMKUR DISTRICT-572214.
...APPELLANT
(BY SMT.VARSHA R IYENGAR, ADVOCATE)
AND:
1. THE CHIEF SECRETARY,
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
DR AMBEDKAR VEEDHI,
BENGALURU-560 001
2. THE ASSISTANT COMMISSIONER
TIPTUR SUB-DIVISION
TIPTUR,
TUMKUR DISTRICT-572201
3. THE TAHSILDAR
TALUK OFFICE
CHIKANAYAKANAHALLY TALUK
TUMKUR DISTRICT-572214
2
4. L. BASAVARAJU
S/O LAXMAIAH
AGED ABOUT 56 YEARS,
RESIDING AT BARAGUR VILLAGE,
CHIKKANAYAKANAHALLY TALUK
TUMKUR DISTRICT-572 214.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 11.10.2018 PASSED IN RA.NO.49/2015 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, CHIKKANAYAKANAHALLI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 27.06.2015 PASSED IN O.S.NO.388/2009
ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC,
CHIKKANAYAKANAHALLI.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This regular second appeal is filed by the unsuccessful plaintiff challenging the judgment and decree dated 27.06.2015 passed by the Court of Addl. Civil Judge and JMFC at Chikkanayakanahalli in O.S.388/2009, which was confirmed by the Court of Senior Civil Judge and JMFC, Chikkanayakanahalli (hereinafter referred to as 'I Appellate Court' for short) in R.A.49/2015 in terms of the judgment and decree dated 11.10.2018. Both the Courts dismissed the suit for perpetual injunction. 3
2. The suit in O.S.No.388/2009 was filed for the relief of perpetual injection to restrain the defendants from forming a road through his land bearing Sy.No.69 of Ankasandra Kavalu Village, Handanakere Hobli, Chikkanayakanahalli Taluk, Tumkur District. The plaintiff claimed that he owned the aforesaid land which he had cultivated and had raised 130 coconut trees and other trees. He alleged that the defendants were attempting to form a road through his land. Further, he stated that a road existed between Baragur village and Ankasandra village and the defendants at the instigation of a person named Chandraiah were attempting to form a road over the property belonging to him.
3. Defendant No.3 contested the suit and denied the allegations made in the plaint. It was contended that 9 guntas of kharab land existed in the land bearing Sy.No.69 owned by the plaintiff and the villagers were utilizing this kharab land to pass through from Baragur village to Bevinahalli. The road also passed through 4 Sy.Nos.73 and 74 belonging to Chandraiah. It was also claimed that this road existed from time immemorial and was identified in the village map and was used for agricultural activities. It was stated that the plaintiff had encroached into this road and had obstructed the usage of this road by the villagers. It was stated that defendant No.4 and other villagers had filed an application before the respondent No.2 to remove the obstruction and respondent No.2 to had directed respondent No.3 to take suitable action for remove of obstruction. Consequently, as per the order of respondent Nos.3, respondent No.2 has directed the fixation of boundaries and to take needful action for removal of the obstruction. It is stated that the plaintiff had filed the suit to avoid the proceeding initiated by respondent Nos.2 and 3.
4. Respondent No.4 contested the suit and denied the fact that the alleged road lying on the eastern side from Baraguru to Ankasandra was not an alternative road. He claimed that the road through the property of the 5 plaintiff existed from time immemorial and was used by the general public. He also stated that he was the owner of the land bearing Sy.No.74 and that he could access his property only by passing over the land in Sy.No.69 of Ankasandra Village.
5. Based on these rival contentions, the Trial Court framed the following issues:
ISSUES
1. Whether the plaintiff proves that he is the lawful owner in possession and enjoyment of the suit schedule property, as on the date of the suit?
2. Whether the plaintiff further proves that the defendants are making attempts to form road newly, over and across the suit schedule property at point, ABCD as shown in the plaint rough sketch?
3. Whether the plaintiff is entitled for the relief of Permanent Injunction?
4. What order or Decree?6
6. The plaintiff was examined as P.W.1 and a witness as PW.2 and marked documents as Exs.P1 to P9. On the other hand, defendant No.4 was examined as DW.1 and a witness as DW.2 and he marked documents as Exs.D1 to D12.
7. Based on the oral and documentary evidence the Trial Court held that 9 guntas of Kharab land existed in the land bearing Sy.No.69 and there was no proof to show that this Kharab land was granted to the plaintiff. The Trial Court also held that as per Ex.D12, the road existed through the land bearing Sy.No.69 and therefore, the plaintiff had no right to claim that he was in possession of the properties and or that, the road that ran through Sy.No.69 belonged to him. It held that the plaintiff could not contend that the road lying on the eastern side of the property from Baragur village to Ankasandra village was an alternative route.
8. The First Appellate Court after considering the oral and documentary evidence held that the plaintiff had 7 no right, title or interest in the 9 guntas of land, which was deducted towards the road in the revenue records. The learned counsel for the plaintiff contended that 9 guntas of land was shown as "A" kharab land and therefore, the plaintiff was entitled to bring that under his cultivation, which he did. Hence she contended that the suit for injunction was maintainable.
9. In view of the fact that, both the Courts have recorded a finding of fact that the area claimed by the plaintiff was in fact an ancient road that ran through Sy.No.69, which was utilized by the villagers since time immemorial, this Court does not consider it appropriate to disturb this finding of fact.
10. Therefore, both the Courts were right in dismissing the suit. There is no merit in this appeal and the same is dismissed.
Sd/-
JUDGE NR/-