Karnataka High Court
K. Doddanagowda (Deceased By Lr) vs V. Ramachandra Reddy on 15 July, 2004
Equivalent citations: AIR2004KANT449, AIR 2004 KARNATAKA 449, 2004 AIR - KANT. H. C. R. 2704 (2004) 6 KANT LJ 511, (2004) 6 KANT LJ 511
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
JUDGMENT V. Gopala Gowda, J.
1. The Appellant was the defendant and Respondent was the Plaintiff in the trial Court. For the sake of convenience, the parties are referred to as in the trial Court.
2. The Plaintiff filed the suit for permanent injunction restraining the defendant from putting up cuddapah slabs or making construction .in front of the open space of his house thereby obstructing right of way from the road to house and for mandatory injunction to remove the cuddapah slabs planted in front of his house. Plaintiff claims that he has been using the courtyard in front of defendant's house and the open space in front of his house to approach the road since time Immemorial. Since the defendant erected cuddapah slabs obstructing the passage to the plaintiff, suit was filed. The suit was resisted by the defendant by filing written statement denying the plaint averments. The defendant states that difference between him and the plaintiff arose on account of attempt to construct sink pit adjacent to defendant's house by the plaintiff and to avoid the same the defendant erected the cuddapah slabs. According to the defendant. erection of cuddapah slabs will not obstruct the plaintiff in any manner and that plaintiff was never permitted to use the passage. Contending that the suit is not maintainable, the defendant prayed for dismissal of the suit.
3. On the basis of the pleadings, the trial Court framed Issues and went for trial. Parties adduced evidence and produced documents in support of their respective case. Upon consideration of the material brought on record, the trial Court decreed the suit as prayed for. The appeal preferred against the judgment and decree of the trial Court was dismissed by the first appellate Court. Being aggrieved by the same the defendant has filed this second appeal praying to set aside the judgments and decrees of the Courts below and to dismiss the suit.
4. The facts as such are not in dispute. What the defendant claims is plaintiff has no right of way on the disputed area. The Court Commissioner gave report as per Ex. P-9 and plaintiff produced photographs which clearly proved installation of cuddapah slabs by the defendant. In fact, defendant has admitted that he laid the cuddapah slabs. Therefore, the question to be resolved is whether plaintiff has got any right to use the disputed passage.
5. The trial Court traced the right of way to the plaintiff from the Diaries Exs. D-3 & D-4 wherein the cordial relationship of the defendant arid plaintiffs elders mentioned. The events that took place from 19-4-1943 to 14-2-1950, according to the trial Court, speaks that the open space in front of the house of the plaintiff as well as the house of the defendant was being used by them as common space. The same is found to be described as "Balakeyalliruva Bayalu Jaaga" (meaning that the 'open space in use') in the Will Ex. D-1 under which the defendant is the beneficiary. It is in this open space the stone slabs had been spread over, which have been removed by the defendant and cuddapah slabs have been erected causing obstruction to the plaintiff. Taking into consideration these factors, the trial Court rightly held that plaintiff has proved his case and accordingly granted the reliefs of permanent injunction and mandatory Injunction directing the defendant to remove the cuddapah slabs and not to interfere with the possession and enjoyment of the dispute space by the plaintiff.
6. Upon re-appreciation of the findings of the trial Court, the first Appellate Court not only concurred with the findings recorded by the trial Court but also further held that the defendant has not proved that the disputed space exclusively belongs to him and that the plaintiff has no right whatsoever upon the same. The first appellate Court also held that the defendant has clearly admitted in the cross-examination that there is only one door to come out from the house of the plaintiff which is facing North. It has further held that the evidence of the defendant itself indicates that the plaintiff was; using the suit open space to carry his agricultural Implements from the road to his house and that only after filing of the suit the defendant erected the cuddapah slabs obstructing the right of way to the plaintiff.
7. The findings of the Courts below are concurrent and based upon proper appreciation of the oral and documentary evidence placed on record. The decisions pressed into service by the learned counsel for the defendant were rightly held not applicable to the facts of the case. The appeal is devoid of merit and no substantial questions of law, much less that are framed in the appeal memorandum, arise for consideration in this appeal.
8. The appeal stands dismissed.