Karnataka High Court
Vijaya Kumar Bedi vs New Taj Mahal Cafe (P) Ltd on 16 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.842/2007 (DEC/INJ)
BETWEEN:
1. VIJAYA KUMAR BEDI
SINCE DECEASED BY HIS LRS
1(a) MRS.SHOBHA BEDI
AGED ABOUT 60 YEARS
W/O LATE VIJAY KUMAR BEDI
1(b) SRI DILIP KUMAR BEDI
AGED ABOUT 36 YEARS
1(c) SRI MANOJ KUMAR BEDI
AGED ABOUT 35 YEARS
1(d) SRI SUNIL KUMAR BEDI
AGED ABOUT 31 YEARS
1(e) SRI HARISH KUMAR BEDI
AGED ABOUT 28 YEARS
SONS OF LATE VIJAY KUMAR BEDI
ALL ARE RESIDENTS OF VIJAY NIVAS
NO.1145, 10TH CROSS, ADARSHA LAYOUT
NEAR OLD SUB-REGISTRAR OFFICE
BASAVESHWARNAGAR
BANGALORE-560 079. ... APPELLANTS
(BY SRI CHOWDA REDDY C., ADVOCATE FOR
SRI N.DINESH RAO, ADVOCATE FOR M/S. RAO ASSOCIATES)
2
AND:
1. NEW TAJ MAHAL CAFE (P) LTD.,
A COMPANY CONSTITUTED UNDER
THE COMPANIES ACT,
HAVING ITS OFFICE AT
CAR STREEET, MANGALORE-1
REPRESENTED BY ITS EXECUTIVE DIRECTOR
KUDPI JAGADISH SHENOY
S/O LATE K.S SHENOY
AGED ABOUT 57 YEARS
MANGALORE -01. ... RESPONDENT
(BY SRI M.VIJAYA KRISHNA BHAT, ADVOCATE)
THIS R.S.A. IS FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 20.12.2006 PASSED IN
R.A.NO.8/2004 ON THE FILE OF THE II ADDL.CIVIL JUDGE
(SR.DN.), MANGALORE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DATED 20.12.2003
PASSED IN O.S.NO.482/2000 ON THE FILE OF THE IV
ADDL.CIVIL JUDGE (JR.DN.), MANGALORE.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.
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2. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of injunction, is that he is the absolute owner of the plaint schedule property having acquired the right as per the registered sale deed dated 30.06.1996 and ever since the acquisition of the schedule property, the plaintiff has been in actual possession and enjoyment of the entire schedule property. The schedule property consists of a non-residential building and the said building is kept closed since some time. In order to gain access to the schedule property there exist a motorable approach road from the Maidan North road and the said motorable approach road is abutting the plaint schedule property on its eastern side. The property of the defendant is situated by the eastern side of the plaint schedule property and the above said motorable approach road. Ever since the date of acquisition of the schedule property, the plaintiff and prior to him his predecessor in title have been using the said road as common road along 4 with the defendant. The plaintiff in order to reach the schedule property has to pass through the said road and there is no other approach at all for men or vehicles to reach the plaint schedule property. The plaintiff's right of use of the said approach road is by express grant as evidenced in the earlier title deeds of the plaintiff's predecessors in title and the said road has been asphalted. The defendant during third week of July 2000 all of a sudden put up 2 laterite stone pillars at the point "B" and "C" shown in the sketch attached to the plaint and put up an iron gate in between the common approach road in between the points B and C. So also the defendant has put up a compound wall in between the points A and B shown in the sketch attached to the plaint. Thus, the defendant has by such illegal act, totally blocked the road.
3. On 08.09.2000, the defendant has removed the laterite stone compound wall between A and B shown in the plaint sketch and the defendant has also removed the big 5 gate and the 2 pillars, on which the said gates rests, at the point where the suit road joins the Maidan North road and in its place the defendant has put up 3 pillars, out of which one is on the western edge of the suit road, the second one in the suit road at a distance of about 2 ½ feet from the first one and the third one at the eastern edge of the suit road and has put up 2 gates one small and another big gate at that point. The big gate is kept always locked and the said act of the defendant is illegal and the said lock is liable to be removed and the defendant has no right to keep the said gate locked. In view of the locking of the gate, the plaintiff's right to use the approach road has been violated and the plaintiff is unable to use the suit road. Inspite of repeated requests by the plaintiff for removal of the obstruction caused to the common approach and to remove the compound wall put across the plaint A schedule property in between A and B points, the defendant has not complied the same. Except the said common approach, 6 motorable road is the only access to the plaint schedule property and the plaintiff is deprived of the very access to his property. Hence, the plaintiff has filed the present suit.
4. In pursuance of the suit summons, the defendant has filed the written statement denying the plaint averment and also stated that he is not aware that the plaintiff is either the owner of the suit schedule property or that he is in possession of the said property and that the plaintiff does not come to or use the schedule property. Therefore, the defendant does not admit that the plaintiff is in actual possession and enjoyment of the schedule property. The claim of the plaintiff that he acquired the Muli right of the schedule property as per sale deed dated 30.05.1996 is not admitted by the defendant and there is no motorable approach in existence as stated by the plaintiff in the plaint and there is no common approach road and also denied the allegation that the defendant has put up the laterite stone pillars as contended by the plaintiff 7 and also fixing the iron gate in between the points B and C and construction of the compound wall. The defendant has stated that there is no wall in between what is marked as A and B in the plaint sketch and though the plaintiff has no right of way of whatsoever nature across the property of the defendant, even so, the defendant would not deny the permission to walk through the property of the plaintiff to reach the premises of the plaintiff if it is so required. It is contended that plaintiff has no absolute legal right as such, to use any potion of the property of the defendant.
5. It is contended by the defendant that the large extent of the property with buildings existing in between maidan 1st Cross and lady Goschen Hosptial Road towards north of the main Maidan Road belonged to the members of an Aliya Santhana Family who brought about division of property by filing suit in O.S.No.76/41 on the file of sub court of South Kanara and a preliminary decree was passed on 06.02.1943 and subsequently, final decree was passed 8 on 07.01.1946 in R.I.A.No.742/43 in O.S.No.76/41. The said property was bearing T.S.No.185/1 and R.S.No.603 of Kasaba Bazar village measuring 2.53 acres and out of that a small extent of 0.5 cents having been acquired by the Government, finally possessed 2.48 acres of land with building as mentioned in the preliminary decree. The final decree indicates that the division reported submitted by the Court Commissioner was accepted by the court and accordingly, partition was brought amongst the various sharers.
6. The Commissioner's report dated 21.04.1944 indicates that the property of 65 cents containing Central Talkies as plot D and after excluding the property, which had earlier been leased out. 1.83 acres of land was available to be divided and in the middle portion of that property, the defendant was running a coffee hotel as per lease deed of 1939. 1.49 acres of land was covered by lease deed in favour of the defendant. The Court 9 Commissioner provided frontage to Taj Mahal building made it plot C measuring 60 cents. The remaining area of 1.23 acres was divided into A and B and B shares. The commissioner also observed that it is difficult to give 41 cents to each of the 48 sharers without breaking the buildings then existing on the property. The commissioner's report shows that the north-western portion of the divisible property containing shops could be allotted to 'A' share the extent of the land was 40 cents. Another share made was referred as 'B' share measuring 42 cents. It is northern portion lying to the east of share A and one more division was south-western portion referred to E share and it faced the Lady Goschen Hospital road on the west and Maidan road on the south and the extent of the share was 41 cents.
7. The Commissioner also stated that the property shown as 'C' share was the property of the other sharers in the front and there was no frontage towards maidan road 10 for that 'C' share except the little frontage, which could not be used as shop site. In other words, what is referred as the approach road in the plaint is actually the little frontage of the 'C' schedule property mentioned in the Commissioner's report. The final decree indicates that 'C' share was allotted to the 1st defendant viz., Venkatappa and 26th defendant as legal heir of 2nd defendant. 26th defendant has purchased it. The property which the plaintiff claims in the plaint schedule is part of what was described as 'E' schedule in the Commissioner's report and it was allotted to the 8th defendant viz., Nagamma. It was given to her exclusive share as clearly mentioned in the final decree. The 'E' schedule was abutting Maidan road as well as Lady Goschen Hospital Road and hence, there was no need for any road approach for that property from any other portion of that divided property. In fact, no right of road or other easement has been reserved in between the various sharers as per Commissioner's report and final decree. The 11 successors of 'E' schedule sharers cannot impose any easement on other properties after the division. The said Nagamma to whom 'E' schedule was exclusively allotted had earlier executed a settlement deed dated 05.10.1942 in favour of her sons viz., Ananda Talwar and Raghuveer Karkada and the heirs of both Ananda Talwar and Raghuveer Karkada entered into partition as per deed dated 16.06.1961. The 'E' schedule property has been sub-divided into 'A' and 'B' schedule of the said deed. In the 'A' schedule portion of 15.25 cents with buildings was shown as 'E2' property. It is the south western portion of T.S.No.185/1. Even when this sub division took place, the property abutted public road on the west and south and as such, no separate easement right was reserved and none could be reserved by law. The plaint schedule property is a tiny portion out of said 'E2' schedule and if at all, the plaintiff claims any easement right, it can be from the remaining portion of 'E2' schedule and not from what was 12 allotted in the 'C' schedule by the Court Commissioner. By the partition deed dated 21.11.1968, the 'E2' schedule was further sub-divided. The road side shops facing Lady Goschen Hospital was allotted in the 'A' Schedule to Kalyani Talwar. It was marked as 'E2A' in the plan and Mr.Sumitra Talwar got the 'B' schedule property measuring 8.75 cents, with building which was marked as 'E2C'. This property abutted the Maidan road and the south western portion also abutted Lady Goschen Hospital road. Another portion is marked as 'E2B' and it was allotted in 'C' schedule to Smt.Kesari Sushil Chander. Mr.Sumitra Talwar had leased out a portion of 7 1/2 cents with building to the defendant as possession and enjoyment indenture of lease deed dated 23.04.1979. In fact, the defendant was in possession even earlier as lessee. Subsequently, by the deed dated 31.08.1994, the tenancy was surrendered by the defendant to Sumitra Talwar. On 31.08.1994, a portion of the building and land in the actual occupation of the defendant was 13 made over to the defendant by perpetual lease deed followed up by sale of Mulgar's right by deed dated 04.11.1999 so that out of 'E' schedule property, the defendant is the owner of the building area actually in the possession of the defendant. By virtue of the surrender deed dated 31.08.1994, the Power of Attorney holder of Sumitra Talwar viz., K.Ajith Kumar Rai could get possession of some potion of the building covered by the 'E' schedule. The plaintiff cannot have easement right whatsoever on the alleged approach road which is part of the 'C' schedule property. It is the exclusive property of the defendant and the approach is meant only for the defendant and their customers and the main Taj Mahal hotel building is in the 'C' schedule property and therefore the alleged approach is part of the property enjoyed by the defendant and the defendant has got another access in front of the main hotel building and that is kept open. This additional approach to the property of the defendant is kept closed at the point 14 marked 'E' and 'C' in the plaint plan so that unauthorized entry of strangers is prevented. There has been a gate at the point of entrance from Maidan road and there is also a wicket gate at that point which has been kept because the Advocates have been occupying upstairs portion of the road side building and to go to the upstairs portion of the road building and the plaintiff is not entitled for the relief as prayed and prayed the court to dismiss the suit.
8. The defendant also filed additional written statement after amending the plaint by the plaintiff stating that the main gate and wicket gate at the point of the property touching the Maidan north road existed since ages and there was no stone compound wall between points A and B in the plan. Hence, its removal did not take place. The pillars and gate at the point of entry from Maidan North Road was not put up on 08.09.2000 as falsely alleged. The big gate as mentioned in the amended plaint is the gate for the private property of the defendant and there is no space 15 through the defendant's compound and it is kept locked and the question of violating the alleged rights by the defendant does not arise and the plaintiff is not entitled for the mandatory injunction as prayed.
9. The Trial Court on the basis of the pleadings of the parties framed the following issues:
(i) Whether the plaintiff proves that in order to gain access to the schedule property there exists a motorable approach road from the Maidan North Road?
(ii) Whether the plaintiff proves that he has got right in the schedule road?
(iii) Whether the plaintiff proves that around the third week of July 2000 all of a sudden put up two laterite stone pillars at the point B and C shown in the sketch attached to this plaint and put up an iron gate in between the common approach road in between the point B and C?16
(iv) Whether the plaintiff is entitled for
mandatory injunction and permanent
injunction?
(v) What order or decree?
10. The plaintiff in support of her case examined her son as PW1 and got marked documents Ex.P1 to Ex.P20.
On behalf of the defendant one witness is examined as DW1 and got marked documents Ex.D1 to Ex.D4.
11. The Trial Court having considered both oral and documentary evidence answered all the issues as affirmative and decreed the suit. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.8/2004. The First Appellate Court after considering the grounds urged in the first appeal formulated the following points:
(i) Whether the appellant has made out
grounds to allow the appeal as prayed?
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(ii) Whether the appellant proves that the
findings of the lower court need
interference?
(iii) What order?
12. The First Appellate Court reversed the finding of the Trial Court by answering both the points in the affirmative and hence, this second appeal is filed before this court.
13. This court having considered the grounds urged in the appeal memo, admitted the appeal and framed the following substantial question of law:
(i) Whether the judgment and decree of the First Appellate Court is perverse in misreading the evidence of PW1 and Commissioner's report with regard to the status and nature of the property?
14. The learned counsel appearing for the appellant vehemently contends that this second appeal is against the 18 divergent finding. He would contend that the Trial Court while considering the documents, which have been marked on behalf of the plaintiff, the documents, which have been marked on behalf of the defendant and also the admission on the part of DW1 with regard to blocking of the approach road has rightly come to the conclusion that the defendant has caused obstruction to the free access of the plaintiff. The First Appellate Court reversed the said finding by considering the documents viz., Ex.P2 and P3 and failed to consider the document of earlier partition deed where provision is made for access and the same has not been discussed. The Trial Court discussed the same and comes to the conclusion that plaintiff has made out an easementary right and granted the relief. The First Appellate Court also failed to consider the documents, which have been filed by the plaintiff and also the admission on the part of DW1 and the same was considered by the Trial Court while answering 19 issue No.3 and the very approach of the appellate court is erroneous and the same is not based on material.
15. Per contra, the learned counsel appearing for the respondent in his argument would vehemently contend that earlier a suit was filed and a partition was effected through the court. He would also submit that schedule 'E' property, which was allotted in favour of Nagamma is the property allotted to the original owners of the plaintiff. The 'C' schedule property was allotted in favour of the defendant and having independent access to the respective properties. The defendant was tenant and he had purchased a portion of 'E' schedule and also further division was made in respect of 'E' schedule property. He would also submit that the plaintiff is a purchaser and the prayer is made only for mandatory injunction and no prayer is sought in the plaint for declaration of easementary right. He would further submit that there is no servient right and no document is produced to claim the easementary right and the son has 20 been examined as Power Of Attorney holder. He would vehemently contend that the appellate court has discussed the same in detail and has taken note of the fact that the title deed is not produced with regard to the claim of the plaintiff and when no relief of declaration is sought, the question of granting easementary right does not arise. He would contend that in the written statement, a specific case was put forth by the defendant particularly in page No.7 and the same has been considered by the appellate court.
16. In reply to the arguments of the learned counsel for the respondent, learned counsel for the appellant submits that there is a clear admission by D.W.1 and also there is a recital in the document viz., Ex.D4 and also Ex.D20 discloses that there is an easementary right. The Trial Court rightly discussed the same in para 10 of the judgment and a detailed order has been passed, whereas, the First Appellate Court has committed an error in not discussing or considering the above said documents. 21
17. In reply to the reply of the learned counsel for the appellant, counsel for the respondent would submit that there is no motorable road and easementary right within their respective properties and not in the property of defendant. It is not in dispute that the property is abutting the road and no provision is made for parking and the small gate is not closed and when the relief is not sought for declaration, question of granting the relief does not arise.
18. Having heard the arguments of learned counsel appearing for the appellant and learned counsel appearing for the respondent and also taking into note the substantial question of law and this court while admitting the second appeal has formulated the substantial question of law, whether the judgment and decree of the First Appellate Court is perverse in misreading the evidence of PW1 and Commissioner's report with regard to the status and nature of the property? and while considering this substantial 22 question of law, the question is whether the Assistant Commissioner has misread the evidence of PW1 and commissioner's report, the evidence of PW1 has to be considered in view of substantial question of law framed by this court. The plaintiff is not examined but the Power Of Attorney holder who is the son of the plaintiff has been examined as PW1. PW1 reiterated the averments of the plaint and also deposed that after filing of this suit on 08.09.2000, the defendant has removed the wall, which is shown as A and B and they have put a new gate and the same is kept under lock. It is also his case that near the big gate they put small wicket gate. Earlier they have not put any lock to the Iron Gate, but after installation of new gate, they locked it and hence, the same is causing obstruction to the plaintiff. In order to prove the factum of the obstruction of demolition of earlier gate and installation of new gate, they have produced photographs, which are marked at 23 Ex.P11 to Ex.P15 and negatives are marked at Ex.P16 to Ex.P17.
19. It is also his evidence that he gave the complaint and police gave an endorsement in terms of Ex.P19 and the Commissioner has also visited the spot and has submitted his report. This witness was cross-examined and in the cross-examination, he admits that prior to 09.02.2002, his father was conducting this case. When a suggestion was put to him that his father did not come forward to give evidence and if he comes, truth will come out, the said suggestion was denied. It is elicited that prior to purchasing of the said property, the same was in the possession of one Rajesh Nagappa and he was running a lottery shop.
20. This court also perused the commissioner's report, which is marked at Ex.C1. Since, this court has framed the substantial question of law in respect of evidence of PW1 as well as the Commissioner's report, on 24 perusal of Commissioner's report, the evidence of the Commissioner who has been examined as CW1, and his report is marked at Ex.C1 and also the sketch, which is marked as Ex.C1A. He was also subjected to cross- examination, in which he admits that he has not taken the assistance of the Surveyor and he prepared the sketch at the spot. He admits in the cross-examination that the said sketch indicates that there is a small gate to take their access from Maidan North road to go inside and also there is a bigger gate next to the same. He admits that through this small gate, to reach the disputed property there is no difficulty. He also noticed cement plastering when he had visited the spot. The evidence of PW1 and also the Commissioner's evidence and also the evidence of DW1, which is also material has to be considered since, the counsel appearing for the appellant brought to the notice of this court certain admissions on the part of DW1 and the 25 same is considered by the Trial Court while answering issue No.3.
21. Having considered the evidence of DW1 in which he speaks about the property originally belongs to Talwar family and also there is a decree in terms of Ex.D1 and also the Commissioner's report in terms of Ex.D2 in respect of earlier suit and also the sketch prepared, which is marked at Ex.D3. D.W.1 has spoken about the earmarking of the property earlier in terms of Ex.D3 A2E properties. He also relies upon document Ex.D4 i.e., deed of partition in the family of Anand Talwar. He categorically says that in the said Ex.D4 E2B, property belongs to the plaintiff and he says that there is no access from the property of the defendant and also no wall or compound is put up or removed any gate. He was subjected to cross-examination, in which he admits that originally the property belongs to Talwar family and also admits that the building attached to Maidan Road and his hotel is also located in the said place. 26 He also admits that he had purchased the property from Sunitha Talwar through Power Of Attorney holder K.Ajith Kumar Rai. In the cross-examination also, he admits that in Ex.D3 E portion, which is on the southern side, which is marked in green color, they have purchased the same and on the north, the plaintiff schedule property is located. He admits that both the gates Ex.D3A and Ex.D3B are main gates. He also admits that in terms of Ex.D3A gate to Ex.D3C, there is a dammar road, but he claims that they formed the said road, but he cannot tell when it was asphalted. He also admits that plaintiffs are also claiming right in the said dammar road. He admits that in terms of Ex.D3A and Ex.D3B except these two points, in Ex.D3A, Ex.D3E and Ex.D3C property, there is no other road. He admits that there is one road in Ex.D3A to go to the suit schedule property. He also admits in the cross-examination that Ex.D3A and Ex.D3B gates are in existence from prior to 1939. When the photographs are confronted to him i.e., 27 Ex.P7, he denies he cannot tell to whom it belongs to. The plaint sketch was also confronted to him and a suggestion was made that the wall was put up on A and B and also a gate was put on point B and C, he admits that the same was put in 2003 in the third week of July, but he disputes the sketch. He admits the photographs Ex.P4 stating that the said building belonged to Sunita Talwar from whom they have purchased, but he says that they have not put any cement plaster wall as shown in Ex.P4, but he cannot tell who have put the same and he says, now the same is not in existence and also says earlier also it was not in existence. He also admits Ex.D3 that A, B, D and except the plaint property, remaining properties belongs to them and he admits the same. It is also his claim that 'C' schedule in terms of Ex.D3 belongs to them. In the cross-examination, he admits that they put unlawfully the gate, but claims that the same is put in their land. It is suggested that they are not having any right to put up the said gate and the same 28 was denied but he volunteers that they have not put up any wall.
22. Having considered both oral and documentary evidence available on record and also considering the evidence of PW1 and DW1, it is the specific case of the plaintiff that they have blocked the road by putting the gate and constructing the wall. Ex.P4, the photograph also clearly discloses that a new wall is erected. In one breath, DW1 says that the same is put up unlawfully, but he contends that the same is put up in their property. Once again, he says that the same is not there and earlier also it was not in existence, but the very photograph Ex.P4 discloses the construction of the wall and closing of the gate and also Ex.P5 discloses a new wall put up and closed and also in Ex.C6, Ex.P7 and photographs are also produced for having taken up the work and also erecting of small gate and also the new gate. It is also important to note that the Commissioner's report is very clear that he found recent 29 cement plastering when he visited the spot. Apart from the document of partition, Ex.D4 is very clear that a easementary right is given in respect of 'A' to 'C' schedule properties and this partition has taken place in the year 1968 amongst the members of the Talwar family and the same is shown in the schedule 'A', 'B' and 'C' wherein, it is specifically mentioned that in respect of shops bearing Door Nos.13, 592, 593, 594, 595 in all, 5 shops building with easementary rights appurtenant thereto boundaries and so also in 'B' Schedule property mentioned easementary rights and so also, in respect of 'C' schedule property and sketch is also annexed to Ex.D4, which is Ex.D4A and also when the DW1 categorically admits in the cross-examination that is the only way available to the plaint schedule property i.e., from Ex.D3A and no other road in existence in order to reach the property of the plaintiff and that is the only road having access in terms of Ex.D3A road is shown in document Ex.D3 and when such admission is given and also 30 the material clearly discloses that a wall was constructed and a gate was put and it is also the specific case of the plaintiff that they caused obstruction by erecting a wall and a gate and the same has been considered by the Trial Court in para 13 of the judgment in detail discussed the same, the appellate court committed an error in reversing the finding of the Trial Court in coming to the conclusion in para 17 that evidence of PW1 is not supported by the documentary evidence. The appellate court only considered the documents Ex.P2 and Ex.P3 and has failed to consider the documents viz., Ex.D4 and Ex.P20. The observation made by the First Appellate Court that the plaintiff also failed to prove the interference by the defendant and also failed to prove that defendant has put up construction in the space belonging to the plaintiff is erroneous. It is not the case of the plaintiff that construction has been put up in the space belonging to the plaintiff but the place in which access is provided to the plaintiff is obstructed is the case of 31 the plaintiff. The First Appellate Court has failed to take note of the fact that there are two roads, one is small road and another is a big road as per the sketch and DW1 in his evidence has admitted in the cross-examination that there is only one road in terms of Ex.D3A to reach the disputed popert. The appellate court on perusal of para 6 of the Commissioner's report, wherein it is stated that since, the pillars and compound wall was cement plastered and white washed but, the Commissioner is not in a position to note the freshness of the said stone pillars and laterite stone compound wall, but the evidence of CW1 Commissioner is very clear that he noticed recent cement plastering. Apart from that the photographs which have been produced before the court also are very clear with regard to erection of wall and also the gate, and failed to take note of these factors and the finding given by the First Appellate Court is perverse as contended and the material evidence has been ignored by the First Appellate Court. The Trial Court having 32 considered both the evidence of PW1 and also the evidence of DW1 and apart from the documents, which have been relied upon by the plaintiff as well as the defendant rightly comes to the conclusion that the defendant caused obstruction and answered issued No.3 in the affirmative. The finding of the First Appellate Court is perverse since, the material evidence both oral and documentary evidence has not been considered in its proper perspective and when the appellate court ignored the documentary evidence at Ex.D4 and Ex.P20 and only considered Ex.P2 and Ex.P3 and comes to the conclusion that Ex.P2 and Ex.P3 does not provide any road in favour of the plaintiff and the fact that the property originally belongs to the Talwar family and also there was a partition between the Talwar family in the year 1968 and in the said partition in respect of A, B and C schedule properties, easementary right is also provided, which has not been considered by the First Appellate Court. Hence, I answer the substantial question of law as 33 affirmative in coming to the conclusion that the finding of the First Appellate Court is perverse and the same is against the material available on record. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree of the First Appellate Court passed in R.A.No.8/2004 on the file of II Additional Civil Judge (Sr.Dn.), Mangalore is set aside and the judgment and decree in O.S.No.482/2000 on the file of the Additional Civil Judge (Jr.Dn.), Mangalore is restored.
Sd/-
JUDGE ss/-