Karnataka High Court
Sri K N Basappa Dead By His Lr'S vs B Nagendrappa on 19 October, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 2209 OF 2010 (DEC/INJ)
BETWEEN:
1. SRI. K.N. BASAPPA
DEAD BY HIS LR'S
1A) K.B. USHA
W/O K.N. BASAPPA
AGE: 62 YEARS
OCC: AGRICULTURE
1B) K.B. MANU
S/O LATE K.N. BASAPPA
AGE: 33 YEARS, STUDENT.
1C) K.B. VINAYAKA
S/O K.N. BASAPPA
AGE: 31 YEARS, STUDENT.
1D) K.N. GONIBASAPPA
S/O SANNA NINGAPPA
AGE: 62 YEARS
OCC: AGRICULTURE.
ALL ARE R/O
ANJIGERI
TQ: HARAPANAHALLI
DIST: DAVANAGERE - 583 131.
1E) K.N. KALLAPPA
S/O SANNA NINGAPPA
AGE: 57 YEARS
OCC: SERICULTURE OFFICER
2
AT: RAMANAGAR
DIST: BANGALORE. - 571 511.
... APPELLANTS
(BY MRS: MANJULA R. KAMADOLLI, FOR
MR: CHINMAYI ASSOCIATES, ADVOCATES)
AND:
1. B. NAGENDRAPPA
S/O BASAPPA
AGE: 56 YEARS
OCC: GRAMASEVAKA
2. B. SIDDALINGAPPA
S/O BASAPPA
AGE: 61 YEARS
OCC: AGRICULTURE.
BOTH ARE R/O NANDIKAMBA VILLAGE
HAMLET OF PUNABHAGATTI VILLAGE
HARAPANAHALLI TALUK - 583 131
DAVANAGERE DISTRICT.
3. KENGAPPALA KENCHAPPA
S/O MURIGEPPA
AGE: 66 YEARS
OCC: RETIRED TEACHER
R/O ANAJIGERE VILLAGE
HARAPANAHALLI TALUK - 583 131
DAVANAGERE DISTRICT
... RESPONDENTS
(BY MR: GURURAJ JOSHI
FOR GURURAJ JOSHI & CO., ADVOCATE FOR R1-R3,)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED: 5.4.2010 PASSED IN R.A.NO.
59/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HARAPANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 7.2.2008 PASSED IN
O.S.NO.153/99 PASSED BY THE CIVIL JUDGE (JR.DN),
HARAPANAHALLI.
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THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.09.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants - plaintiffs have preferred this appeal being aggrieved by the judgment and decree dated 07.02.2008 passed in OS No.153 of 1999 on the file of the learned Civil Judge (Jr.Dn) and JMFC, Harapanahalli (hereinafter referred to as 'the Trial Court' for brevity), dismissing the suit of the plaintiffs with costs, refusing to grant declaration of easementary rights to the cart track as perfected their right by prescription, which was confirmed vide judgment dated 05.10.2010 passed in RA No.59 of 2009 on the file of the learned Senior Civil Judge, Harapanahalli (hereinafter referred to as 'the First Appellate Court' for brevity), by dismissing the appeal.
2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
3. Brief facts of the case are that, the original plaintiff K N Basappa filed OS No.153 of 1999 against defendant Nos.1 to 3 for declaration that he perfected the right over the cart track shown in the suit sketch as A, B and 4 C, over the land bearing Sy.Nos.339-A, B and C belonging to the defendants, for the purpose of reaching his land both by cart and tractor and to restrain the defendants and their men etc., from interfering with the plaintiff's usage of the said cart track, by granting permanent injunction.
4. It is contended by the plaintiff that he is the lawful owner in enjoyment of Sy.No.337 measuring 1.49 acres, as he purchased the same under the registered sale deed dated 05.03.1992. In fact, the plaintiff has purchased the said land about 25 years back for a sum of Rs.5,000/-. Since the land was Inam land, he could not purchase it under the registered sale deed. After conferment of occupancy rights, the vendor Patil Parameshwaragoud executed the registered sale deed only on 05.03.1992. The khata was mutated in the name of the plaintiff and thus the plaintiff is in peaceful possession and enjoyment of the property in question.
5. It is contended that defendant No.3 is the owner of land bearing Sy.No.339-A and B and defendant Nos.1 and 2 are the owners of the land bearing Sy.No.339-C. The lands belonging to the plaintiff and the defendants abut each other. 5 The plaintiff and his predecessor in title were using the cart track marked as A, B and C in red color in the sketch, to reach his land. There was no interference for the use of the cart track. Thus, the plaintiff perfected his right of easement by prescription and the defendants are not having any right, title or interest to interfere with the same. It is also stated that without this cart track, the plaintiff cannot enter his land as the land belonging to the plaintiff is surrounded by a stream on all the three sides which is more than 20 feet in depth. To evidence the same, the plaintiff has produced the certified copy of the village map.
6. The plaintiff contended that the defendants started obstructing the usage of the cart track during 1997. Plaintiff approached the Tahsildar and obtained an order dated 06.12.1997 against the defendants not to interfere with the same. It is stated that the said cart track is mentioned in the sale deed that is executed in favour of the plaintiff. On 18.09.1999, when the plaintiff was taking his cart through Sy.Nos.339-A, B and C to reach his land, the defendants unlawfully interfered with the usage of the said cart track. 6 Therefore, the plaintiff approached the Court for declaring his right of easement and for permanent injunction.
7. On service of notice, defendant No.1 filed written statement denying the contention taken by the plaintiff. However, it is admitted that the plaintiff purchased 1.49 acres of land in Sy.No.337 under the registered sale deed. It is denied that the plaintiff purchased the said property under 25 years ago or perfected his right by way of prescription on any cart track. It is specifically contended that the defendants are the owners of the land bearing Sy.Nos.337 and 339 of Anajigere village and the plaintiff can reach his land bearing Sy.No.337 through the land that is situated in-between the land bearing Sy.Nos.340-A, B and C and Sy.No.337. It is also contended that there is a cart track in-between the land in Sy.Nos.323, 324 and 325 and the plaintiff can very well reach his land through the said cart track. It is stated that the plaintiff and his predecessor in interest used to use the said cart track to reach their land. It is specifically contended that there was no cart track over the land of the defendants at any point of time. It is stated that even though the Tahsildar, Harapanahalli passed the order dated 06.12.1997, the 7 defendants have challenged the same before the Assistant Commissioner and the same was pending as on the date of filing the written statement.
8. It is contended that the defendants have raised sugarcane and maize crops and there are standing coconut trees which are aged about 14 years. There is a borewell and pump house, where the plaintiff has shown the cart track. Therefore, it is contended that the plaintiff is not entitled for any relief and prayed for dismissal of suit with costs.
9. Defendant Nos.2 and 3 have field a memo adopting the written statement filed by defendant No.1.
10. On the basis of these pleadings, the following issues came to be framed. Among them, issue 2 , 7 and 8 were recasted as under:
1) Whether the plaintiff proves that there is a car track marked as "ABC" as described in the suit sketch over the defendants land bearing Sy.No.339-A, 339-B, 339-C?
2) Whether the plaintiff proves that he has got a right of prescription by way over the said cart track?8
3) Whether the plaintiff proves that he has got an easementary right over the way marked as "ABC" in red color in the suit sketch?
4) Whether the plaintiff proves that the defendants are unnecessarily obstructing the
plaintiff to enjoy the way marked as "ABC" in Sy.No.339-A, 339-B and 339-C and as such it amounts to an interference?
5) Whether the defendants prove that it is not an easement of necessity, because the plaintiff is having some other alternative measures to reach his land?
6) Is the suit bad for non joinder of
necessary parties?
7) Whether the plaintiff proves that he is
entitled for declaration of his easementary right of prescription over the disputed area?
8) Whether the plaintiff proves that the defendants are liable to be restrained by way of permanent injunction not to obstruct the plaintiff to take cart, Besaya, tractor to his land bearing Sy. No. 337 over the path shown by letters ABC in the paint sketch?9
9) To what order or decree?"
11. Plaintiff examined himself as PW1 and got
examined three witnesses as PWs.2 to 4 and got marked Exs.P1 to 16 in support of his contention. Defendant No.1 examined himself as DW1 and got examined two witnesses as DWs.2 and 3 and got marked Exs.D1 to 9 in support of his defence. The Trial Court after taking into consideration all these material on record answered issue Nos.1 to 4, 6 to 8 in Negative and held that issue No.5 does not survive for consideration. Accordingly, dismissed the suit of the plaintiff with costs.
12. Being aggrieved by the same, the plaintiffs preferred RA No.59 of 2009 before the First Appellate Court. The First Appellate Court after re-appreciation of the materials on record came to the conclusion that there is no merits in the appeal and accordingly dismissed the appeal. Being aggrieved by the same, the legal representatives of the original plaintiff have preferred this appeal.
13. Heard Smt.Manjula R Kamadolli, learned counsel for the appellants and Sri Gururaj Joshi, learned counsel for 10 the respondents. Perused the materials including the Trial Court records.
14. Learned counsel for the appellants submitted that Ex.D1 is the plaint sketch. It is an admitted document. This documents show the disputed cart way which is shown as A, B and C. The finding of the Trial Court that the plaintiff has not perfected his right of easement over the cart track in question is erroneous. Ex.P1 is the sale deed wherein there is reference to the right of way. Exs.P2 to 5 are the RTC and there is a mention regarding the cart track. Ex.P6 is the order passed by the Tahsildar, who specifically held that there is a cart track. Since there was interference with the enjoyment of the cart track, the suit was filed. There is no other way to reach the land of the plaintiff and therefore, the plaintiff is seeking declaration of easement by necessity. Both the Courts below have committed an error in dismissing the suit. Admittedly, the plaintiff's land is surrounded by a stream on all the three sides and on one side, there is land belonging to the defendants. Under such circumstances, the finding recorded by the Trial Court and the First Appellate Court are erroneous and therefore, she prays for allowing the appeal. 11
15. Per contra, learned counsel for the respondents opposing the appeal contended that even though there is a reference to the sketch in the plaint, the same is not got marked by the plaintiff for the reason best known to him. The defendants got marked the documents during cross examination of PW1 as Ex.D1. The plaintiff got marked the village map of Anajigeri village as Exs.P2 and 3. Exs.P8 and 9 are also the copies of the map. None of these documents show the cart track claimed by the plaintiff. The contention of the plaintiff that he purchased the property about 25 years back and perfected his title is not proved by him. He purchased the property only under Ex.P1 and he was put in possession on the date of sale deed. Thereby, the plaintiff also failed in proving that he perfected his title by prescription. Even though the plaintiff tried to make out a ground that he perfected his right by way of easement in necessity, there is no pleadings nor there is a prayer in that regard. The Trial Court as well as the First Appellate Court have considered the materials on record and dismissed the suit with a concurrent finding of fact. There is no reason to 12 interfere with the same. Accordingly, he prays for dismissal of the appeal with costs.
16. The appeal is admitted vide order dated 25.07.2013 to consider the following substantial question of law:
"When Ex.D-1 - sketch of suit schedule property along with the property of defendants namely, Sy.Nos.339-A,B,C is shown with reference to main road and stream surrounding these four properties does not disclose alternate way available for entry and exit to suit schedule Sy.No.337, the finding given on issue No.5 regarding alternate route to reach the suit schedule land is justified?"
17. The contention of the plaintiff taken before the Trial Court discloses that he is seeking declaration of his right over the cart track by way of prescription. He specifically pleaded that he purchased the property about 25 years earlier and perfected his right. Even his vendor was using the same path and therefore, the same finds place in the sale deed Ex.P1. Accordingly, there is reference to the cart track in Exs.P2 to 5. Admittedly, the plaintiff referred to a sketch 13 appended to the plaint. But the said sketch was not got marked by the plaintiff. On the other hand, it was marked by defendant No.1 as per Ex.D1. It is nothing but a village map showing the disputed cart track as A, B and C in red color. Admittedly, in the village map, the cart track is not shown by the survey department.
18. Ex.P1 is the sale deed executed in favour of the plaintiff, where there is a reference to the cart track running through the land of the defendants. The sale deed is dated 05.03.1992. The suit was filed during September-1999. Therefore, under the sale deed the plaintiff has not perfected his title by prescription. It is the specific contention of the plaintiff that he purchased the property about 25 years ago and thereby perfected his title by prescription. But the evidence led by the plaintiff does not support such contention. On the other hand, it is specifically stated that he was put in possession of the said property under the sale deed. Even otherwise, the contention taken by the plaintiff is against the registered document - Ex.P1 and therefore, such contention cannot be accepted.
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19. The plaintiff refers to Exs.P2 to 5 - the record of rights in respect of his land, wherein, there is reference to cart track, it is pertinent to note that all these entries regarding cart track were entered only on 30.12.1997 which is apparently after the order passed by the Tahsildar, which was admittedly came to be set aside by the Assistant Commissioner. It is stated that the plaintiff has approached the Deputy Commissioner, who ordered to maintain status- quo. Against the said order, admittedly, the defendants filed Writ Petition No.24924 of 2002 and it is stated that the same came to be allowed vide order dated 15.07.2002. Thereby, the order passed by the Deputy Commissioner to maintain status-quo was also set aside and in the meantime the suit was filed and it was dismissed. The order passed by the Court in the writ petition is produced as per Ex.D7. It is categorically observed that the Tahsildar has no right to create new way in the private land.
20. The defendants produced the village maps as per Exs.D2, D3 and D9 and the survey sketch as per Ex.D8. In none of these documents, there is reference to any cart track as contended by the plaintiff. Even though the plaintiff 15 contended that his predecessors have also used the cart track in question, no documents are produced to prove the same. Even though the vendor of the plaintiff is examined as PW2, his evidence is in no way helpful to the plaintiff as he himself denied during cross examination about his stand taken in the chief examination that the plaintiff is using the cart way for morethan 25 years. He also stated that immediately after receipt of the consideration amount from the plaintiff, he executed the sale deed as per Ex.P1. This evidence of PW2 falsifies the contention of the plaintiff that he had paid the consideration amount about 25 years back and was using the cart track since then.
21. When Ex.P1 under which the plaintiff purchased the property on 05.03.1992 and the suit came to be filed in the year 1999, it cannot be said that the plaintiff has perfected his right over the disputed cart track by way of prescription. The plaintiff has not placed any materials to show that his predecessors in title were using the said path way since time immemorial. If in fact, there was such a cart track, it should have find a place in the survey sketch and in 16 the village map. Atleast, there must be some evidence to prove such long usage of the pathway. Therefore, I am not inclined to accept the contention of the plaintiff in that regard.
22. The plaintiff has also stated in the plaint that this is the only way to reach his land, but he never claimed declaration of easement by necessity. It is pertinent to note that even PW2 during the cross examination categorically stated that one Chandragowda was cultivating his land in Sy.No.337, he was reaching the said land through Sy.Nos.323, 324 and 325. The said cart track is shown in Ex.D9 produced by the defendants. In Fact, Ex.P9 shows two cart tracks to reach the land bearing Sy.No.337. No materials are placed either oral or documentary to deny the existence of alternative cart track, as shown in Ex.D9. Moreover, when the plaintiff has not claimed the relief of easement of necessity, I do not find any justification to go into such issue in depth. However, the substantial question of law as stated above was raised regarding the right of the plaintiff to easement of necessity which is neither pleaded nor proved, nor there is a claim for such a right.
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23. When the Trial Court and the First Appellate Court on appreciation and re-appreciation of the materials, recorded a concurrent finding of facts, the scope under Section 100 of CPC to interfere with such findings would be very limited. The jurisdiction of the High Court under this section to entertain the second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction to interfere with pure question of fact, while exercising its jurisdiction. Since there is concurrent finding of facts by both the Courts below, the scope of this appeal is very limited. It is the settled proposition of law that when the findings of the Trial Court and the First Appellate Court are against the materials that are available on record or when it is against the settled proposition of law or the findings appear to be perverse, this Court can definitely interfere with such concurrent findings of the facts.
24. It is relevant to refer to the decision of the Hon'ble Apex Court in Thiagarajan and Others v. Sri Venugopalaswamy B. Koil and Others1, where the scope and ambit of Section 100 was discussed at length and it is 1 (2004) 5 SCC 762 18 held that existence of substantial question of law is sine-qua- non for the exercise of the jurisdiction under the amended provisions of Section 100 of CPC. It is re-iterated that where findings of fact by the First Appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence, merely on the ground that another view was possible.
25. In Narayan Rajendran and Another v.
Lekshmy Sarojini and Others2, the Apex Court discussed at length about the scope and ambit of Section 100 CPC both prior to the amendment to CPC in 1976 and after it and held that the second appeal can lie only on one or the other grounds specified in the section. It is also held that even before the amendment, interference under Section 100 CPC was limited and after the amendment the power has been further curtailed. The amendment Act 1976 has introduced drastic changes in the scope and ambit of this section which is now confined to cases where a question of law is involved and such question must be a substantial one. The Court has referred to several such judgments after amendment to 2 (2009) 5 SCC 264 19 Section 100 of CPC and re-iterated that the jurisdiction of the High Court under this section to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction to interfere with pure question of fact while exercising its jurisdiction.
26. The Hon'ble Apex Court referred to its earlier decision in Madhavan Nair Vs Bhaskar Pillai3, to hold that the High Courts are not justified in interfering with the concurrent findings of fact. Even if the First Appellate Court commits an error in recording a finding of fact, that itself will not be a ground that the High Court to upset the same.
27. Referring to the Fifty Fourth report of the Law Commission of India submitted in 1973, the legislative background which led to amendment of Section 100 CPC was highlighted that 'the question could perhaps be asked, why the litigant who wishes to have justice of the highest court of the State should be denied the opportunity to do so, atleast where there is a flaw in the conclusion of facts reached by the Trial Court or by the Court of first appeal. The answer is 3 (2005) 10 SCC 553 20 obvious that, even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. An unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury'. Thus, the Apex Court once again crystallized the legislative intention by referring to its several other decisions to caution the High Courts to refrain from interfering with the concurrent findings of fact without there being a substantial question of law. Thus, the position of law is very well settled with regard to interference under Section 100 of CPC.
28. I have gone through the impugned judgment and decree passed by both the Courts. The Trial Court as well as the First Appellate Court have rightly arrived at a conclusion and have dismissed the suit and the appeal. I do not find any reason to interfere with the concurrent findings of fact recorded by both the Courts. Hence, the substantial question of law is answered against the appellants and in favour of the respondents. The appeal is liable to be dismissed.
29. Hence, I proceed to pass the following:
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ORDER The appeal is dismissed with costs.
The judgment and decree dated 07.02.2008 passed in OS No.153 of 1999 on the file of the learned Civil Judge (Jr.Dn) and JMFC, Harapanahalli, which was confirmed vide judgment dated 05.10.2010 passed in RA No.59 of 2009 on the file of the learned Senior Civil Judge, Harapanahalli, are hereby confirmed.
Registry to send back the Trial Court records with the copy of this judgment.
Sd/-
JUDGE *bgn/-