Karnataka High Court
Narayan Chinnu Madiwal vs Laxmi W/O. Ganapati Shet on 3 July, 2018
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 3 r d DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
RSA NO.6094/ 2011(DEC/INJ)
BETWEEN
1. NARAYAN CHINNU MADIWAL,
SINCE DECEASED BY HIS LR'S
1A) S HRIDHAR S/O NARAYAN MAD IWAL,
AGE: 49 YEARS ,
R/ O: NAVILGON , TQ : HONAVAR,
DIST: UTTARA K ANNADA.
1B) SRI .GAJAN AN S/O NARAYAN MADIWAL,
AGE: 43 YEARS ,
R/O: NAVILGON, TQ : HONAVAR,
DIST: UTTARA K ANNADA.
1C) SRI . JANA RDHAN
S/ O NARAYAN MADIWAL,
AGE: 37 YEARS ,
R/O: NAVILGON, TQ : HONAVAR,
DIST: UTTARA K ANNADA.
1D) SRI . GANAPATI
S/ O NARAYAN MADIWAL,
AGE: 65 YEARS ,
R/O: NAVILGON, TQ : HONAVAR,
DIST: UTTARA K ANNADA.
1E) SMT.YASHODA D/O NARAYA N MADIWAL,
A GE: 46 YEARS ,
2
R/ O: NAVI LGON , T Q : HONAVAR,
DIST: UTTARA KANNADA.
1F) SMT.K .V.MADI WAL
S/O NARAYAN MADIWAL,
AGE:40 YEARS ,
R/O: NAVILGON, TQ : HONAVAR,
DIST: UTTARA KANNADA.
... A PPELLANTS
(BY SRI.J S SHETTY, ADVOCATE)
AND
1.LAXMI W/O. GAN APATI SHET ,
AGE: 80 YEARS , OCC: RY OT,
R/O. NAVILGON, T Q : HONNAVAR
DIST : UTTAR KANNADA.
2.UFM.RAMACHAN DRA GANA PATHI S HET
AGE: 65 YEARS , OCC: RY OT,
R/O. NAVILGON, T Q: HONNAVAR
DIST: UTTARA KA NNADA.
3.GANAPATI VENK ATAPATI MADIWAL.
SINCE DECEASED BY HIS L.R'S
3A) SMT.GANAPI W/O. GANA PATHI MADI WAL,
AGE: 70 YEARS ,
R/O. NAVILGON, T Q : HONNAVAR
DIST : UTTAR KANNADA.
3B) VENKATRAMAN GANAPATI MADIWAL,
AGE: 54 YEA RS,
R/O. NAVILGON, TQ : HONNAV AR
DIST : UTTAR KANNADA.
3C) KRISHNA S/O GAN APATI MADIWAL,
AGE: 49 YEARS ,
R/O. NAVILGON, T Q : HONNAVAR
DIST : UTTAR KANNADA.
3
3D) MANJUNATH S/O GANAPATI MADIWAL,
AGE: 45 YEARS ,
R/O. NAVILGON, T Q : HONNAVAR
DIST : UTTAR KANNADA.
3E) SURESH S/O MAD EVA MADIWAL,
AGE: 31 YEARS ,
R/O. NAVILGON, T Q : HONNAVAR
DIST : UTTAR KANNADA.
3F) SHARADA W/O MA DEVA MADIWAL,
AGE: 37 YEARS ,
R/O. NAVILGON, T Q : HONNAVAR
DIST : UTTAR KANNADA.
3G) KUMARI.RENUKA D /O GANA PATI MAD IWAL,
AGE: 34 YEARS ,
R/O. NAVILGON, T Q : HONNAVAR
DIST : UTTAR KANNADA.
3H) KUMARI.BHARATI D/O GANA PATI MA DIWAL,
AGE: 31 YEARS ,
R/O. NAVILGON, T Q : HONNAVAR
DIST : UTTAR KANNADA.
4. SRI.VENKATRAMAN GANAPATHI MAD IWAL,
A GE: 44 YEARS , OCC: DRIVER,
R/O: NAVILGON , TA LUK: HOPNNAVAR,
DIST : UTTAR KANNADA-572217.
5.KRISHNA GANA PATHI MADIWAL
AGE : 39 YEARS, OCC: BUSINESS ,
R/O. NAVILGON, T Q: HONNAVAR
DIST : UTTAR KANNADA-572217.
6.MANJUNATH GA NAPATHI MADIWA L
AGE : 35 YEARS, OCC : KSRTC DRIV ER,
R/O. NAVILGON, T Q : HONNAVAR
DIST: UTTARAKANNADA-572217.
7.S URESH GANA PA THI MADIWAL
AGE: 31 YEARS , OCC: DRIVER
R/O. NAVILGON, T Q: HONNAVAR
4
DIST : UTTAR KANNADA-572217.
8.S HARADA W/ O. MADEV MADIWAL
AGE: 27 YEARS , OCC : HOUSE HOLD
R/O:MASUR, TQ: K UMATA,
DIST: UTTARAKANNADA-572217.
9.K UMARI RENUKA D/O. GANAPATHI MADIWAL,
AGE: 24 YEARS , OCC: HOUS E HOLD ,
R/O. NAVILGON, T Q: HONNAVAR,
DIST: UTTARKANNADA-572217.
10.KUMARI BHARA THI
D/O. GANA PATHI MADIWAL
AGE : 24 YEARS, OCC: HOUSE HOLD
R/O. NAVILGON, T Q: HONNAVAR
DIST: UTTARKANNADA-572217.
... RES POND ENTS
(BY SRI.S N BANA KAR, ADV . F OR R2)
(VIDE ORD ER DAT ED 8- 4- 2015 R2
AS LRS. OF DECEASED R-1)
(RESPOND ENT NO.3 TO 10 SERV ED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, A GAINST THE JUDGMENT AND
DECREE DATED: 17.08.2011 PASSED IN
RA.NO.65/ 2002 ON THE FILE OF T HE SENI OR CIVIL
JUDGE, HONAVAR, DISMISSING T HE APPEA L FILED
AGAINST THE JUDGMENT DATED 06.07.2002 AND THE
DECREE PASSED I N O.S .NO.198/ 1992 ON THE FILE OF
THE ADDITIONAL CIVIL J UDGE (J R.DN) HONNAVAR,
PARTLY DECREEING THE S UI T FILED FOR
DECLARATION AN D PERMANENT INJUNCTION .
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
This regular second appeal by the defendants is directed against judgment and decree dated 17.08.2011 in R.A.No.65/2002 on the file of Senior Civil Judge, Honnavar dismissing the appeal and thereby confirming the judgment and decree of the trial Court in O.S.No.198/1992 on the file of Addl. Civil Judge (Jr.Dn.), Honnavar.
2. For the sake of convenience the parties shall be referred to as per their status before the trial Court.
3. Briefly stated the facts of the case are, plaintiffs brought the instant suit contending inter aliea that there exists a private pathway on the eastern side of their land bearing Sy.No.34A/2A exclusively belonging to them. In support of their contention they placed reliance on the survey sketch Ex.P.7.
6
4. Suit was resisted by written statement by defendant No.1 contending inter-alia:
• that there exists a pathway
towards eastern side of suit
property, but it is denied that the said pathway is for the use of plaintiffs and their cattle;
• that defendants and their ancestors have been using pathway described as 'AB' for more than 50 years openly with the knowledge of plaintiffs and without any obstruction and thereby perfected their right as easement by prescription; and they use the pathway for movement of their cattle and bullock cart etc., • that they deny that they illegally damaged eastern and western 7 pathway and attempted to obstruct plaintiffs and their cattle to pass through the pathway;
• that general public who visit Adakul Bhangi Beerappa Dev Temple also make use of the pathway;
5. Defendant No.2 filed separate written statement taking similar contentions taken by the defendant No.1. In substance, defendants case is that as the defendants and their ancestors were using the said pathway for more than 50 years; they have perfected their easementary right by prescription. Defendants have also filed a counter claim seeking declaration that they have got easementary right over the suit property.
6. Based on the pleadings, trial Court framed as many as 11 issues. On behalf of plaintiffs, one witness was examined as PW.1. 11 documents were marked as Exs.P.1 to 11. On 8 behalf of defendants, two witnesses were examined as DW.1 and DW.2; and no documents were marked.
7. Among 11 issues framed by the trial Court and issue No.7 is relevant and the same reads as follows:
7) Whe ther the defe ndants prove that they and the ir ancestors have been using the AB pathway for more than 50 years openly with the knowledge of the plaintiffs and without any o bstructions and thereby perfected the ir right by e asement o f prescriptio n and entitled for the declaratory relie fs as praye d in the writte n statement?
8. On consideration of evidence on record and answering issue Nos. 1 to 4 and 10 in the affirmative, 5 to 9 in the negative, the trial Court decreed the suit with costs. Feeling aggrieved, defendants challenged the judgment and decree passed by the trial Court before the lower 9 appellate Court. The lower appellate Court framed following points for its consideration.
1. Whethe r the judgment and de cree passed by the trial Court in O.S.N o.198/1992 date d 06.07.2002 is arbitrary, capricio us , perve rse and bad in law o n any o f the grounds urge d in the appeal memo?
2. Whethe r the judgment and decree of the trial Co urt ne eds any interfere nce by this Court?
3. What order and de cree?
9. Answering both points in the negative, the lower appellate Court dismissed the regular appeal. Feeling aggrieved, the plaintiffs are before this Court in this second appeal.
10. Sri.J.S.Shetty, learned advocate for appellants contended firstly that the Courts below have committed a serious error in relying on the disputed map prepared by the Court Commissioner and secondly that the Surveyor was not examined by plaintiffs to prove his case and as such, 10 reliance placed by Courts below to decree the suit is wholly illegal and not sustainable in law.
11. Sri S.N.Banakar, learned advocate for respondent No.2 argued in support of judgment of Courts below.
12. While answering issue No.7, the trial Court has recorded a finding that Ex.P.7 and 11, are certified survey maps. There is no challenge to the veracity of Exs.p 7 and 11. No objections have been filed to the report submitted by Court Commissioner nor the Court Commissioner. No efforts have been made to record his evidence.
13. Thus, except oral submissions, defendants have not made any efforts to substantiate their defence. The finding recorded by the trial Court is based on evidence namely the documents prepared by the Government Surveyor and the Court Commissioner. The same have remained unchallenged. The Lower Appellate 11 Court on re-appreciation of the evidence has dismissed the regular appeal.
14. The whole case depends upon the factual matrix with regard to existence of a pathway. Based on the evidence on record both Courts below have concurrently held that the said pathway 'AB' belongs to the plaintiffs.
15. In the circumstances, no substantial question of law arises for consideration in this appeal warranting interference with the judgment and decree passed by the lower appellate Court.
16. Resultantly, this appeal must fail and is accordingly dismissed.
No Costs.
Sd/-
JUDGE vb