Karnataka High Court
Ranu Jayappa Mane And Ors vs Sri.Keruba S/O Kondiba Mane on 11 November, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2024:KHC-K:8355
RSA No. 200286 of 2019
C/W RSA No. 200285 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200286 OF 2019 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 200285 OF 2019 (DEC)
IN RSA NO.200286/2019:
BETWEEN:
1. RANU JAYAPPA MANE,
AGE: 44 YEARS, OCC: AGRIL,
R/O. BURNAPUR, TQ.VIJAYAPURA-586101.
2. TANAJI S/O JAYAPPA MANE,
AGE: 41 YEARS, OCC: AGRIL,
Digitally signed by R/O. BURNAPUR, TQ.VIJAYAPUR-586101.
SHIVALEELA
DATTATRAYA
UDAGI 3. SAVALU S/O JAYAPPA MANE,
Location: HIGH AGE: 39 YEARS, OCC: AGRIL,
COURT OF
KARNATAKA R/O. BURNAPUR, TQ.VIJAYAPUR-586101.
4. PARAMESHWAR S/O JAYAPPA MANE,
AGE: 34 YEARS, OCC: AGRIL,
R/O. BURNAPUR, TQ.VIJAYAPUR-586101.
...APPELLANTS
(BY SRI SANGANABASAVA B. PATIL, ADVOCATE)
AND:
SRI KERUBA S/O KONDIBA MANE,
AGE: 69 YEARS, OCC: AGRIL,
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NC: 2024:KHC-K:8355
RSA No. 200286 of 2019
C/W RSA No. 200285 of 2019
R/O. BURNAPUR,
TQ. VIJAYAPUR -586101.
...RESPONDENT
(BY SRI VINAYAK APTE, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL AND SET-ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 12.02.2019,
PASSED BY THE COURT OF THE I ADDITIONAL SENIOR CIVIL
JUDGE VIJAYAPUR AT: VIJAYAPUR IN RA.NO.90/2015,
DISMISSING THE SAID RA AND THEREBY CONFIRMING THE
JUDGMENT AND DECREE DATED 28.10.2015 PASSED BY THE
COURT OF THE PRINCIPAL CIVIL JUDGE VIJAYAPUR AT:
VIJAYAPUR IN OS.NO.352/2010 AND FURTHER DISMISS THE
SAID SUIT OS.NO.352/2010. AND SUCH FURTHER OR OTHER
RELIEF BE GRANTED WHICH THE APPELLANTS WOULD BE
FOUND ENTITLED TO ON THE FACTS AND CIRCUMSTANCES OF
THE CASE.
IN RSA NO.200285/2019:
BETWEEN:
1. RANU JAYAPPA MANE,
AGE: 44 YEARS OCC: AGRIL,
R/O. BURNAPUR, TQ. VIJAYAPURA-586101.
2. TANAJI S/O JAYAPPA MANE,
AGE: 41 YEARS OCC: AGRIL,
R/O. BURNAPUR, TQ. VIJAYAPUR-586101.
3. SAVALU S/O JAYAPPA MANE,
AGE: 39 YEARS OCC: AGRIL,
R/O. BURNAPUR. TQ. VIJAYAPUR-586101.
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NC: 2024:KHC-K:8355
RSA No. 200286 of 2019
C/W RSA No. 200285 of 2019
4. PARAMESHWAR S/O JAYAPPA MANE,
AGE: 37 YEARS OCC: AGRIL,
R/O. BURNAPUR TQ. VIJAYAPUR-586101.
...APPELLANTS
(BY SRI SANGANABASAVA B. PATIL, ADVOCATE)
AND:
SRI KERUBA S/O KONDIBA MANE,
AGE: 69 YEARS, OCC: AGRIL,
R/O. BURNAPUR,
TQ. VIJAYAPUR -586101.
...RESPONDENT
(BY SRI VINAYAK APTE, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THIS APPEAL SET-ASIDE THE IMPUGNED
JUDGMENT AND DECREE DATED 12.02.2019, PASSED BY THE
COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM
VIJAYAPUR AT: VIJAYAPUR, IN RA.NO.91/2015, DISMISSING
THE SAID RA AND THEREBY CONFIRMING THE JUDGMENT AND
DECREE DATED 28.10.2015 PASSED BY THE COURT OF THE
PRINCIPAL CIVIL JUDGE VIJAYAPUR AT: VIJAYAPUR IN
OS.NO.352/2010 AND FURTHER DISMISS SAID SUIT OS
NO.352/2010. AND SUCH FURTHER OR OTHER RELIEF BE
GRANTED WHICH THE APPELLANTS WOULD BE FOUND
ENTITLED TO ON THE FACTS AND CIRCUMSTANCES OF THE
CASE.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-K:8355
RSA No. 200286 of 2019
C/W RSA No. 200285 of 2019
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) These two appears are filed by the defendants aggrieved by the common judgment and order dated 12.02.2019 passed in R.A.No.90/2015 and R.A.No.91/2015 on the file of I-Addl. Senior Civil Judge & Addl. CJM, Vijayapura (hereinafter referred to as 'the First Appellate Court' for short), by which the First Appellate Court while dismissing the said Regular Appeals confirmed the judgment and decree dated 28.10.2015 passed in O.S.No.352/2010 by the Prl. Civil Judge, Vijayapura (hereinafter referred to as 'the Trial Court' for short).
2. Plaintiff filed the above suit in OS No.352/2010 seeking following reliefs :
a) Declaring that plaintiff has got half share of taking well water from "W1 and W2" wells situated in Sy.No.161/1A of defendants to irrigate his land Sy.No.161/1B of plaintiff and in consequence thereof;-5-
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b) Pass a decree of perpetual injunction restraining the defendants from obstructing in taking water share from "W1 and W2" wells situated in land Sy.No.161/1A of defendants;
c) Pass decree of declaration declaring that plaintiff has got easement of necessity to use suit path way shown by letters "MNOP" in the land of defendants land Sy.No.160/1 to reach nala running to the North of land Sy.No.160/1 to drink water to cattle and sheep of plaintiff in all seasons and in consequence thereof;
d) Pass a decree of permanent injunction restraining defendants from obstructing "MALOP" suit path way by plaintiff in land Sy.No.160/1.
e) Pass a decree declaring that plaintiff has right of way by prescription as were as easement of necessity through "XYI" way in land Sy.No.161/1A of defendants and in consequence thereof;
f) Pass a decree of perpetual injunction restraining the defendants from obstructing to plaintiff in the use and enjoyment of 121 with way shown by letters "XYI" in the plaintiff hand sketch in land Sy.No.161/1A of defendants;
g) Pass a decree of declaration declaring that plaintiff is the owner of land 1 acre 10 guntas encroached by defendants in land Sy.No.160/2 of plaintiff.
h) Pass a decree for possession of 1 acre 10 guntas to plaintiff encroached by defendants in the land of plaintiff in Sy.No.160/2.
i) Award costs of the suit
j) Pass any other relief's deemed fit by this Hon'ble Court.
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3. The case of the plaintiff is that;
a) he is the owner in possession of the land bearing Sy.No.161/1B measuring 05 acres 29 guntas and Sy.No.160/2 measuring 08 acres and the defendants are the owner in possession of the land bearing Sy.No.161/1A measuring 06 acres 20 guntas and Sy.No..160/1 measuring 08 acres 04 guntas of Aliabad village Vijayapura district and taluka.
b) A plaint hand sketch is enclosed to the plaint wherein;
i) Land in Sy.No.160/2 and Sy.No.161/1B belonging to plaintiff is shown by letters "BCPF" and "IJKL" respectively;
ii) Land bearing Sy.No.160/1 and land bearing Sy.Nos.161/1A belonging to defendants is shown by letters "ABCD" and "DPIJ"
respectively
c) That there are two Wells dug in the land in Sy.No.161/1A belonging to the defendants shown by the letters "W1" and "W2". There is yet another borewell dug by defendants shown by letter "B" shown in the plaint hand sketch. The Wells referred to by letters as "W1" and "W2" are the suit properties. Both the plaintiff and defendants have equal right to draw the water from the said wells. -7-
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d) That there is a way from village Buranapur to the land of the plaintiff and defendants, which reaches at the south-east corner of the land in Sy.No.160/2 belonging to the plaintiff and enters at point "F" and proceeds further to north up to point "A" and reaches the Nala and connects to the road to Aliabad village. That the plaintiff has given way on the northern border to the defendants property to reach their land in Sy.No.160/1 from point "F" to "B" as shown in the plaint hand sketch. That the plaintiff enters his land at point "F" and takes turn from there to south and goes up to point "P" to go to his house in Sy.No.160/2.
e) That in order to go to his land in Sy.No.161/1B from his farm house, plaintiff enters the land of the defendants in Sy.No.161/1A at point "X" and then proceeds upto point "Y" and upto point "I". This "XYI" is 12 feet wide way situated in the land bearing Sy.No.161/1A belonging to defendants which is the suit way.
f) There is 8 feet wide path way in the western border of land in Sy.No.160/1 running from south to north to reach nala enabling the cattle and sheep of plaintiff to drink water which is shown by letters -8- NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 "MNOP" in the plaint hand sketch which is also a suit way.
g) The defendants have illegally encroached upon an extent of 01 acre 10 guntas of land farming part of land in Sy.No.160/2 belonging to the plaintiff on its southern side which is shown by letters "BCGH" in the plaint hand sketch. The said portion is also subject matter of the suit.
h) The defendant is causing obstruction in plaintiff using the suit ways. After having illegally encroached upon 01 acre 10 guntas of land in Sy.No.160/2 as noted above defendants illegally constructed a farm house thereon. The plaintiff has given an application to Survey Department for measurement of the extent of land encroached upon by the defendants, no action has been taken despite several oral and written request by the plaintiff. Finding no other alternate plaintiff is constrained to file the suit for declaration, possession and injunction.
4. On the other hand, the defendant No.1 has filed the written statement;
a) denying the plaint averments however admitted that the plaintiff is the owner of land bearing -9- NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 Sy.No.161/1B measuring 5 acres 29 guntas and defendants being owners of land in Sy.No.161/1A measuring 6 acres 23 guntas of Aliabad village. It is denied that the plaintiff is having land measuring 8 acres in Sy.No.160/2 of Aliabad village. It is also denied that defendants are having only 8 acres 4 guntas of land in Sy.No.160/1. On other hand, it is contended that the defendants got 9 acres 4 guntas of the said land. The allegations of defendants encroaching upon 1 acre 10 guntas of land in Sy.No.160/2 are also denied.
b) Existence of two Wells in the land bearing Sy.No.161/1A shown as "W1" and "W2" in the plaint sketch is denied. It is however admitted that Well "W2" situated in Sy.No.161/1A is a joint Well and that plaintiff and defendants having equal rights to draw the water from the said Well and further contended that the Well shown as "W1" is the personal Well of the defendants.
c) The existence of pathway shown by letters as "F" to "A" is also denied. However, it is contended there is a way from the plaintiff's land as shown by letters "FGH" in Sy.No.160/2 belonging to the plaintiff which is the only way to reach to the land of the defendants.
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d) The claim of the plaintiff of he having right to enter his land in Sy.No.161/1B through the pathway shown at "XYI" in the land of the defendants is denied. Similarly, pathway shown as "MNOP" is also denied. It is submitted that plaintiff has to reach his land in Sy.No.160/2 and Sy.No.161/1B through the pathway shown as "NFC" in the hand sketch produced along with the written statement.
e) The defendants have further contended that plaintiff and their father-Jayappa were the brothers and the suit properties were the ancestral properties of plaintiff and defendants. After the death of their father, plaintiff and defendants partitioned the land in Sy.No.160 effected which was originally measuring 16 acre 4 guntas; and in Sy.No.161 which was originally measuring 12 acres 12 guntas. That in the said partition an extent of 4 acres 4 guntas in Sy.No.160; an extent of 6 acres 23 guntas in Sy.No.161 goes to defendants father share and an extent of 7 acres in Sy.No.160 was allotted to the share of father of defendants; and land measuring 5 acres 29 guntas in Sy.No.161 was allotted to the share of plaintiff. The land that was allotted to the plaintiff was very fertile land and the land allotted to defendants was not fertile lands and were kharab
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 lands and also flowing the water from big ditch in the said land as shown in the defendants hand sketch by letters "RKS". An extent of 1 acre 4 guntas of additional land was granted to the defendants in Sy.No.160/1; and an extent of 34 guntas of additional land was granted in Sy.No.161/1A. The said arrangement was arrived at subsequent to the partition and the plaintiff and the father of the defendants and after his demise, plaintiff and the defendants have been occupying, enjoying the said portion of the land.
f) It is further contended that the defendants have constructed a house on the southern side of the bund shown in the plaint sketch marked by letter "H" point. The defendants have been cultivating in possession of the land bearing Sy.No.160/1 measuring 9 acres 4 guntas without any objection. However, in the revenue records the aforesaid arrangements have not been entered into. Taking undue advantage of the non-entry of the said arrangements, plaintiff has filed the above suit.
5. A counter claim is made by the defendants seeking declaration to declare them as the owners of 09 acre 04 guntas of land in Sy.No.160/1 shown in the
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 defendants hand sketch marked by letters "IJKE" and to further declare that the defendants are equally entitled for open well shown in the defendants hand sketch map by letter "W1" in Sy.No.161/1B belonging to the plaintiff.
6. Plaintiff filed written statement to the counter claim denying the averments made in the written statement that additional land was granted to the defendants as claimed.
7. Based on the pleadings the Trial court framed the following issues :
1) Whether plaintiff proves that he has equal right to take water from Well W1, W2 as shown in the plaint sketch situated in Sy.No.161/1A ?
2) Whether the plaintiff proves that he is the owner of suit Sy.No.160/2 measuring 8 acres and defendant has encroached suit "BCHG" land as shown in the plaint hand sketch ?
3) Whether the defendant proves that he has equal right to takes water from well W2 as shown in the written statement hand sketch is situated in Sy.No.161/1B ?
4) Whether the defendant proves that he is the owner of Sy.No.160/1, measuring 9 acres 4 guntas of Aliyabad Village as shown by "IJEK" in the written statement hand sketch ?
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5) Whether the plaintiff proves that he has got easement of necessity to use suit pathway shown by letters "MNOP" in the land of defendant Sy.No.160/1 ?
6) Whether the plaintiff proves that he has right by way of prescription as well as easement of necessity on "XYZ" way in Sy.No.161/1A of defendant ?
7) Whether the plaintiff proves that the interference caused by the defendants to take water from well W1, W2 and to use way ?
8) Whether the plaintiff is entitled for the relief sought for ?
9) Whether the defendant is entitled for counter claim ?
10) What order or decree ?
8. Plaintiff is examined himself as PW1 and two witnesses as PW.2 and PW.3 and exhibited 09 documents marked as Ex.P.1 to Ex.P.9. Defendant No.4 examined as DW1 and two additional witnesses as DW.2 and DW.3 and exhibited 14 documents marked as Ex.D1 to D14. A Commissioner was appointed by the Trial Court who has been examined as CW.1. Report of the Commissioner is marked as Ex.C1 along with PT sheet as Ex.C2. On appreciation of evidence, the Trial Court answered Issue Nos. 1, 2, 6 and 7 in the affirmative, Issue No.8 partly in the affirmative and Issue Nos.3, 4, 5 and 9 in the negative and consequently, decreed the suit as under :-
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 "Suit of the plaintiff is decreed in part with costs in following terms :
It is hereby declared that plaintiff has got half share of taking water from well as shown by letters W1 and W2 in the plaint sketch as well as in the sketch annexed with the report of the Commissioner, situated in Sy.No.161/1A of defendants to irrigate his land.
Defendants, their men, servants or anybody acting on their behalf are permanently restrained from obstructing the plaintiff in taking water from W1 and W2 well as shown in the plaint sketch and also in the sketch annexed with the report of the Commissioner.
It is also declared that plaintiff is having right of way by easement of necessity to pass through XYI way as shown in the plaint sketch, which is situated in RS No.161/1A of defendants, without destroying the standing crops in the said land.
Defendants, their men, servants or anybody acting on their behalf are permanently restrained from obstructing the plaintiff in the use and enjoyment of way shown by letters XYI in the plaint sketch. However, plaintiff is also directed not to destroy the standing crops while using the said way.
It is also declared plaintiff is the owner of land measuring 1 acre 10 guntas in RS No.160/2.
Defendants are hereby directed to handover the encroached portion of 1 acre 10 guntas to the plaintiff in RS No.160/2 within one month from the date of this judgment, failing which the plaintiff is entitled to get the possession of the same through due process of law.
Prayer of the plaintiff regarding MNOP pathway is hereby rejected.
Counter claim of the defendants is dismissed with costs.
Draw decree accordingly."
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9. Aggrieved by the same, defendants preferred a regular appeal in R.A.No.90/2015 as against the decreeing of the suit and regular appeal in RA No.91/2015 as against rejection of the counter claim. First Appellate Court on considering the grounds urged, framed the following points for its consideration :
1. Does the trial court is right in holding that the plaintiff has got ½ share in the Wells shown by letters W-1 and W-2 situated in land R.S.No.161/1A of defendants ?
2. Whether the trial court is right in holding that the plaintiff is having right of easement of necessity to pass through XYI pathway situated in R.S.No.161/1A ?
3. Whether the trial court is right in holding that the defendants have encroached land of plaintiff measuring 1 acres 10 guntas in Sy.No.160/2 and ordered to hand over encroached portion ?
4. Whether the trial court is right in granting permanent injunction order against the defendants for obstructing the plaintiff in use of 2 Wells as well as pathway shown at XYI ?
5. Whether the trial court is right in dismissing the counter claim of defendants in the eye of law ?
6. Whether the case requires to be remanded to the trial court ?
7. Whether the judgment and decree of the trial court is legally sustainable ?
8. Whether interference of his Court is required ?
9. What order or decree ?
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 and on re-appreciation of the evidence, answered Point Nos.1 to 5 and 7 in the affirmative and Point No.6 and 8 in the negative. Consequently dismissed the appeals confirmed the judgment and decree passed by the Trial Court. Aggrieved by the same, the defendants are before this court.
10. Learned counsel appearing for the defendants/appellants retreating the grounds urged in the appeal in RSA No.200285/2019 contend that the plaintiff has an alternate way to reach his land in Sy.No.160/2 through the portion marked at "NFCBO" of the sketch produced by the defendants and there is no way shown as "XYI" in the sketch produced by the plaintiff. He submits by granting such a relief, the Trial Court has created a new way in favour of plaintiff is contrary to the evidence available on record.
11. Learned counsel reiterating the grounds urged in the memorandum of appeal in RSA No.200286/2019 submit that the Trial Court and the First Appellate Court
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 have failed to appreciate the report of the Commissioner, who has submitted report stating and pointing out the portion of land that is allotted to the father of defendants marked as "RSK" in the report. He submits that since the portion of the land allotted to the father of defendants was uncultivable. He was allotted additional land shown as "PIJQ" sketch furnished by the defendants to compensate the defendants. He submits that the report of the Commissioner read in the light of the admission made by PW1 would show that the defendants were allotted additional land shown as "PIJQ" over which the defendants have constructed their house and have been residing therein. That the Trial Court and the First Appellate Court without having appreciated these factual and legal aspects of the matter have partly decreed the suit of the plaintiff and have erroneously dismissed the counter claim of the defendants. He submits reasoning, finding and the conclusion arrived at by the Trial Court and the First Appellate Court gives raise to substantial questions of law
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 warranting interference at the hands of this Court. Hence seeks for allowing of the appeals.
12. Per contra, learned counsel for the plaintiff justifying the judgment and decree passed by the Trial Court, confirmed by the First Appellate Court submits that when the defendants have categorically admitted in the written statement and in the evidence with regard to the partition deed data 02.08.1989 that was entered into between the father of the plaintiff and the father of the defendants and in the absence of defendants furnishing any material evidence in justification of their claim for allotment of additional land in Sy.No.160/1 as contended in written statement, no error or illegality can be found with the judgment and decree passed by the Trial Court and no substantial question of law would arise for consideration either.
13. He submits that the Trial Court and the First Appellate Court have adverted to the factual aspect of the matter while recognizing the right of the plaintiff to use
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 the pathway shown as "XYI" which is situated on the southern side of land in Sy.No.161/1 belonging to defendants, which is the only way to reach the land of the plaintiff in Sy.No.161/1B situated on the western side of the property belonged to defendants. He submit that the Trial Court and the First Appellate Court have considered the necessity of plaintiff requiring to use the said pathway which is the only access to his property and the absence of disproving the case of the plaintiff, the defendants are not entitled for any relief. Hence, seeks for dismissal of the appeals.
14. Heard. Perused the records.
15. At the outset, it is necessary to note that out of 8 reliefs sought for by the plaintiff, the Trial Court has decreed the suit in respect of relief Nos.(a), (b), (e), (f),
(g) and (h) and has dismissed the suit of the plaintiff with regard to reliefs Nos.(c) and (d). There is no appeal filed by the plaintiff with regard to rejection of his suit in respect of relief No.(c) and (c) is concerned. Similarly, as
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 regards the reliefs No.(a) and (b) granted by the Trial Court in respect of plaintiff entitlement to draw water from well "W-1" and "W-2" situated in land bearing Sy.No.161/1A belonging to defendants, defendants have not challenged the same. As such, the issue with regard to relief Nos.(a), (b), (c) and (d) are not in controversy.
16. The dispute is only with regard to reliefs No.(e),
(f), (g) and (h) namely; plaintiff's claim for right of way in respect of point "XYI" situated in the land in Sy.No.161/1A belonging to defendants and declaration in respect of 01 acre 10 guntas of land in Sy.No.160/2 belonging to the plaintiff with the direction to the defendants to hand over the position thereof. Therefore, these appeals instituted to the said extent.
17. Since these two appeals arise out of common judgment and order passed by the Trial Court between the same parties, both are taken up for analogous hearing and disposal.
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18. For better understanding, the hand sketch enclosed with the plaint and the hand sketch enclosed with the written statement are scanned and extracted here under ;
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19. On the issue with regard to entitlement of the plaintiff to have access through the portion marked at "XYI" in the plain sketch, the Trial Court has adverted to the same at paragraphs 38 to 40 of its judgment while answering Issue No.6. The case of the plaintiff is that "XYI" pathway as shown in the plaint sketch has been formed in view of existence of a big bund on the south- east corner of the land in Sy.No.161/1A of the defendants land as it is physically not possible for men, cattle and materials to have access to the land in Sy.No.161/B belonging to the plaintiff crossing over the said big bund existing at the points "P" to "X" shown in the plaint sketch.
20. The Court Commissioner who has appointed to inspect and to submit a report has furnished a sketch produced at Ex.C2, according to which the said big bund is situated near the well shown by letter "W2" in the said sketch on the south-eastern corner of the property in Sy.No.161/1A belonging to the defendants. The height of the bund is admittedly 4 to 5 feet and the width is about 4
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 to 5 feet. The Trial Court on assessment of these material evidence coupled with the statement of the Court Commissioner has come to the conclusion that the plaintiff is having only option to use the passage shown as "XYI" in the plaint sketch to reach to his land in Sy.No.161/1B and to draw water from well shown as "W2" therein.
21. The First Appellate Court on re-appreciation of these factual aspects of the matter has concurred with the said finding of the Trial Court. Since the Trial Court and the First Appellate Court have come to the factual finding of these aspects of the matter based on the evidence, this Court do not see any reason to interfere with the same.
22. Now adverting to the allegation of defendants encroaching upon 01 acre 04 guntas of land in Sy.No.160/1 shown in letters "BCHG" of the plaint sketch and on the contrary defendants claiming decree of counter claim declaring them to be the owners of 09 acres 04 guntas of land in Sy.No.160/1 shown in the written statement hand sketch map by letters "IJEK", it is
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 necessary to note that even according to the defendants there was a partition entered into between the plaintiff and the father of defendants as per Ex.P5, dated 02.08.1989. The said document and the contents of said document have been admitted. The only plea raised by the defendants in the written statement in justification of their counter claim is that since the lands which are allotted to the share of the plaintiff are fertile lands and the lands which are allotted to the share of defendants are dry land to compensate for the same defendants were given additional land of 01 acre 04 guntas of land in Sy.No.160/1 and 34 guntas of land in Sy.No.161/1A. In the written statement itself defendants admit that such an arrangement was entered into between the plaintiff and the father of the defendants subsequent to entering into partition dated 02.08.1989 as per Ex.P.5, but however there are no records in that regard. No mutation entries were made either.
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23. Necessary to note that once the partition and the allotment of the shares in the property is admitted, confirming the ownership and entitlement of the plaintiff, any subsequent change or conveyance of property has to be made by mode and manner known to law. Mere pleading with regard to defendants having been compensated for the nature of land allotted to them in the absence of any cogent material evidence, the plea of the defendants cannot be countenanced. The Trial Court and the First Appellate Court have therefore thus come to a right conclusion in this regard.
24. The Trial Court at paragraphs 32 and 33 of its judgment adverting to the pleading the evidence and also the law with regard to the claim made based on the records of right has come to the conclusion that defendants have failed to prove of they being the owners of land in Sy.No.160/1 measuring 09 acres 04 guntas. The reason for this conclusion is that after the partition, mutation entry in M.E.No.4441 was effected as per Ex.P.5
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 reflecting the allotment of shares as claimed by the plaintiff and admitted by the defendants. DW1 has admitted that they have neither questioned nor challenged nor even sought for rectification of the said entries eversince the year 1989 till date. It is under these factual and legal aspects of the matter, the Trial Court and the First Appellate Court have declined to grant the relief of counter claim. The reasoning and the conclusion arrived at by the Trial Court and the First Appellate Court being based on factual aspect of the matter and the absence of any ground made out with regard to illegality, irregularity if any committed by the Trial Court and the First Appellate Court in appreciating either the pleading or evidence, this Court do not see any reason to interfere in the matter.
25. In view of the above, no substantial question of law would arise for consideration in both the appeals, same are accordingly dismissed confirming the judgment and decree passed by the Court of the Principal Civil Judge, Vijayapura in O.S.No.352/2010 dated 28.10.2015
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NC: 2024:KHC-K:8355 RSA No. 200286 of 2019 C/W RSA No. 200285 of 2019 and the judgment and order passed by the court of the I- Addl. Senior Civil Judge & Addl. CJM, Vijayapura in R.A.Nos.90 and 91 of 2015 dated 12.02.2019.
Sd/-
(M.G.S.KAMAL) JUDGE sdu/SN List No.: 1 Sl No.: 17 CT : PK