Karnataka High Court
Sri. M N Rathnakara Heggade vs Smt. Asha @ Asha Naik on 25 October, 2023
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NC: 2023:KHC:37829
RSA No. 701 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.701 OF 2020 (INJ)
BETWEEN:
SRI.M N RATHANAKARA HEGGADE
S/O NARASIMHA HEGGADE
AGED ABOUT 56 YEARS
OCC: AGRICULTURIST
R/AT SHANKARAKOPPA
MEEGA VILLAGE
NALLURU POST
SRINGERI TALUK - 577 139
CHIKKAMAGALURU DISTRICT
...APPELLANT
(BY SRI. JAGADEESH D C, ADVOCATE)
Digitally
signed by AND:
CHAITHRA A
Location: 1. SMT. ASHA @ ASHA NAIK
HIGH W/O L S CHANDRASHEKAR NAIK
COURT OF
KARNATAKA AGED ABOUT 41 YEARS
REPRESENTED HEREIN
BY HER GPA HOLDER
MR.L.S.CHANDRASHEKARA NAIK
S/O LATE L S SRINIVASA NAIK
AGED ABOUT 56 YEARS
R/AT NO.91/8, 14TH MAIN
27TH CROSS, 4TH BLOCK
JAYANAGAR
BENGALURU - 560 011
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NC: 2023:KHC:37829
RSA No. 701 of 2020
2. THE BEGAR VILLAGE PANCHAYATH
SRINGERI TALUK
THROUGH ITS
PANCHAYATH DEVELOPMENT OFFICER
BEGAR, SRINGERI TALUK - 577 139
CHIKKAMAGALURU DISTRICT
3. THE TALUK PANCHAYATH
SRINGERI TALUK, SRINGERI
THROUGH ITS EXECUTIVE OFFICER
SRINGERI - 577 139
CHIKKAMAGALURU DISTRICT
4. THE ZILLA PANCHAYATH
CHIKKAMAGALURU DISTRICT
JYOTHINAGAR POST - 577 102
CHIKKAMAGALURU BY ITS
CHIEF EXECUTIVE OFFICER
5. B G PRASANNA
S/O GOPALAGOWDA
AGED ABOUT 47 YEARS
CONTRACTOR AND AGRICULTURIST
R/AT BEGANE, SRINGERI TALUK - 577 139
CHIKKAMAGALURU DISTRICT
...RESPONDENTS
(BY SRI. B G SRIRAM, ADVOCATE FOR C/R.1;
R.2 TO 5 ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 23.10.2019 PASSED IN
RA.NO.14/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, N.R.PURA, ITINERATE AT SRINGERI, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
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NC: 2023:KHC:37829
RSA No. 701 of 2020
DATED 19.07.2018 PASSED IN O.S.NO.04/2012 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, SRINGERI AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the defendant No.5 assailing the judgment and decree of the Appellate Court, wherein the Appellate Court has allowed the appeal and the judgment and decree of the Trial Court in dismissing the plaintiff's suit for injunction is reversed and the defendants are restrained from interfering with the plaintiff's peaceful possession.
2. For the sake of brevity, the ranks of the parties are referred as they are ranked before the Trial Court.
3. Facts leading to the case are as under; The subject matter of the suit are the agricultural lands bearing Sy. No.39 and Sy. No.41 both situated at -4- NC: 2023:KHC:37829 RSA No. 701 of 2020 Meega Village, Sringeri Taluk. The plaintiff claims to be the owner of these lands. The plaintiff has contended that these lands were allotted to her in a family partition effected through registered partition deed dated 26.12.2008. The plaintiff claimed that on the eastern side of item No.1 property i.e., Sy. No.39, road is formed to enable the plaintiff to carry agricultural equipments and the manures. The plaintiff has specifically pleaded that these roads are used by the plaintiff alone and not by the public at large. Feeling aggrieved by the action of defendant Nos.4 and 5 in asserting their right over the suit road, the plaintiff got issued a legal notice to defendant Nos.1 to 3 authority not to do any such acts. Since there was inaction on the part of defendant Nos.1 to 3 and defendant No.4 tried to trespass into item No.1 property and tried to take measurement of the private road, the plaintiff has rushed to the Court and filed injunction suit simplicitor seeking injunction against defendant Nos.1 to 5.
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NC: 2023:KHC:37829 RSA No. 701 of 2020 4. On receipt of summons, defendant Nos.1 to 3 filed written statement and contested the proceedings, while defendant No.4 was placed exparte.
5. The present appellant pending suit got himself impleaded as defendant No.5 and he has already filed a suit in O.S.No.3/2012.
6. The plaintiff and defendants to substantiate their respective stand have let in oral and documentary evidence. The Trial Court having examined the pleadings, oral and documentary evidence let in by the parties to the suit answered issue Nos.1 to 3 in the negative. The Trial Court has dismissed the suit by holding that the plaintiff has failed to prove her lawful possession and enjoyment over the suit schedule properties. While answering issue No.2 in the negative, the Trial Court held that the plaintiff has failed to substantiate the existing road in the suit schedule property is a private road and therefore held that -6- NC: 2023:KHC:37829 RSA No. 701 of 2020 the defendants have right to claim access through the suit property and consequently, the suit is dismissed.
7. The Appellate Court has independently assessed the oral and documentary evidence. The Appellate Court on re-appreciation of materials on record has taken note of several admissions elicited in the cross- examination of the Grama Panchayath Member, who is examined as D.W.1. Referring to the admissions elicited in the cross-examination of D.W.1, the Appellate Court held that the defendants have failed to substantiate that the disputed suit road is a public road. Therefore, it is in this background, the Appellate Court held that the road is situated on the southern side of item No.1 property is private road. The Appellate Court held that defendants have failed to substantiate that it is a public road. The Appellate Court held that no documents are placed on record to substantiate that the erstwhile owner of these lands has transferred the suit schedule properties to the -7- NC: 2023:KHC:37829 RSA No. 701 of 2020 Markal Mandala Panchayath. Therefore, Appellate Court has allowed the appeal and decreed suit.
8. Defendant Nos.1 to 3 have not opted to challenge the judgment and decree of the Appellate Court, while defendant No.5 alone has questioned the judgment rendered by the Appellate Court.
9. Heard learned counsel for defendant No.5. I have given my anxious consideration to the reasons recorded by both the Courts.
10. On examining the materials on record, it is clearly evident that plaintiff's title over the agricultural lands bearing Sy. No.39 and Sy. No.41 is not in dispute. D.Ws.1 and 2 have in unequivocal terms admitted the title of the plaintiffs over these lands. Defendant Nos.1 to 3 have also admitted in unequivocal terms that the agricultural lands bearing Sy. Nos.39 and 41 are private properties. By way of defence, defendant Nos.1 to 3 have tried to introduce a case by contending that the erstwhile -8- NC: 2023:KHC:37829 RSA No. 701 of 2020 owner, who is the vendor of the plaintiff, has transferred a portion of the land to enable defendant Nos.1 to 3 to lay a public road. D.W.1, in his cross-examination, has deposed that erstwhile owner has transferred by executing a document on Rs.10/- stamp paper. If defendant Nos.1 to 3 have admitted title of the plaintiff and erstwhile owner, then it presupposes that the entire burden would shift on the defendants to substantiate their right of laying a road in a private property. The Trial Court has in fact recorded a finding that no documents are produced by defendant Nos.1 to 3 indicating transfer of portion of the land to enable the public to have access through the said road. The Trial Court has, in fact, recorded a categorical finding at para No.40 of its judgment that the defendants have not produced any valid documents to substantiate their claim in regard to existence of 10 to 12 feet width road in Sy. No.39. However, at para No.41 of the judgment, the Trial Court proceeded to dismiss the suit on the ground that the defendants have not interfered with the plaintiff's possession over the remaining portion of the -9- NC: 2023:KHC:37829 RSA No. 701 of 2020 lands bearing Sy. Nos.39 and 41. The findings of the Trial Court at para No.41 suffer from perversity and are found to be patently erroneous. The subject matter of the suit is not the entire extent of the land bearing Sy. Nos.39 and 41 but it is only a road situated on the southern side of Sy. No.39 i.e., item No.1 property. Defendant Nos.1 to 3 are claiming that it is a public road and that erstwhile owner has transferred portion of the land in their favour to enable them to lay a public road. Having set up a defence in the written statement, the burden is on the defendant Nos.1 to 3 to substantiate that there is a proper transfer and thereafter, defendant Nos.1 to 3 have formed a public road. In absence of rebuttal evidence let in by defendant Nos.1 to 3, the Trial Court has virtually misread the entire evidence on record and has failed to understand the nature of dispute between the parties.
11. The question that arises for consideration in the present appeal is;
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NC: 2023:KHC:37829
RSA No. 701 of 2020
Whether the road situated on the
southern side of the item No.1 property is a private road or public road?
12. The defendants have admitted that the road is a part of the private property. The Trial Court has erred in dismissing the suit. However, the Appellate Court has rightly taken cognizance of this relevant aspects and by reassessing the entire evidence on record independently, has come to the conclusion that the road situated on the southern side of the item No.1 property is a private road and therefore, defendant No.5 has no right to have access through the private road. The reasons and conclusions arrived at by the Appellate Court are based on the evidence placed on record by both the parties. If defendant Nos.1 to 3 and defendant No.5 have not disputed the plaintiff's title over the suit road, defendant No.5 cannot assert a right over the private road unless he establishes that he has got easmentary right over the disputed road. It is also forthcoming from the records that
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NC: 2023:KHC:37829 RSA No. 701 of 2020 defendant No.5 has already instituted a suit in O.S.No.3/2012. If defendant No.5 has already instituted a suit in O.S.No.3/2012, he is bound to establish that his right to seek access through the disputed suit road in the pending suit filed by him. On examining the records and the judgment rendered by the Appellate Court, this Court is of the view that the plaintiff has succeeded in establishing his lawful possession. From the fact that defendant Nos.1 to 3 are local bodies and defendant No.5 is asserting right over the private road, it is clearly evident that there is an interference at the hands of defendant Nos.1 to 3 and 5. In a bare suit for injunction, the Courts are only bound to examine the interference at the hands of the defendants. If plaintiff is able to establish his lawful possession and if he is further able to demonstrate that there is interference at the hands of the defendants, the Courts are bound to grant necessary protection. The Trial Court has virtually misread the evidence. Therefore, the Appellate Court has rightly set-aside the judgment and decree of the Trial Court. The judgment rendered by the
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NC: 2023:KHC:37829 RSA No. 701 of 2020 Appellate Court is in accordance with law and based on the clinching legal evidence let in by the plaintiff. I do not find any infirmities in the judgment and decree rendered by the Appellate Court.
No substantial question of law arises for consideration. Accordingly, the appeal is dismissed.
Pending applications, if any, are also dismissed.
Sd/-
JUDGE NBM List No.: 1 Sl No.: 16