Sri N Byrappa vs Sri Veerabasappa on 4 October, 2010

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Karnataka High Court

Sri N Byrappa vs Sri Veerabasappa on 4 October, 2010

Bench: Anand Byrareddy

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 04"" DAY OF OCTOBER, 2010
BEFORE 

THE HON'BLE MR. JUSTICE ANAND BYRA1}:{'B"Bf);tY':_V'i'   _

REGULAR SECOND APPEAL N9 1737~L"3E:*--i20(§8*:::  1:"  

BETWEEN:

Sri. N. Byrappa,

S/O Nagappa,

Aged about 52 years, I .

Residing at Kodagavalli, '  

I-Iolalkere Taluk, " Vi  '   _   " -.
Chitradurga District._-- 577 5.2.3,    ' _'_";-APPELLANT

(B y Shrifi     atej V  it

AND:

I . Sii. Veerabaisappa V'

  S/OE Ctaavnnaveerapgga
"  "Agedyabout 77 years,
  ResivdiligvatiKodagavalili,
. V".--_HO1a1T<_ere'7{'aIuk --. 577 523
' Chitraduijga District.

Sri.v.C3m'kkappa, S/O Channaveerappa
. it '*-Aged about 80 years,
"  Residing at Kodagavaili
Holalkere Taluk --- 577 523
Chitradurga.



EU

3. Sri. Gurushanthappa
S/o Rangappa
Aged about 57 years,
Residing at Kodagavalli
Holalkere Taluk -- 577 523
Chitradurga

4. Sri. Eswarappa
S/o Nagappa
Aged about 62 years,
Residing at Kodagavalli  
Holalkere. Taluk -- 577 523 
Chitradurga.  ~ 

5. Sri. Basappa
S/0 Rangappa; _ i _ _ 
Aged about '*7?,}¥eaisi.; 2:    
Residingaitr  

Holalkere 'f.'alul< W 5>?'7V'V5-$3.'   
ChViii£iE1urgi%i,'.u _  p  ...RESPONDENTS

(By Shriﬁ  Surend_réu",l', ii_4"Aid"»'ocate for Respondent No.1,
Respondents i"i.o.2.to 5_are_. served but unrepresented)
.-. , '~" * *$*$$

   is filed section E00 of Code of Civil Procedure,
*1 9G8,iagainstt therpjudgment and decree dated 25._l0.2007 passed in

Ri;'A.i'4lop..253I"_20_()12;""on the file of the Civil Eudge ('Sr.Dn),
Holallgere, allowing the appeal and setting aside the judgment and

 A it _decree"'dated 0s;09.2000 passed in O.S.No. 164/1992 on the file of
  the Additional Civil iudge (Jr.Dn), Holaikere.

 'V.,Ti'1is appeal coming on for Admission this day, the Court

C"  ..__i'v'deliivered the following: --

"3



JUDGMENT

Heard the learned counsel for the appellant.

2. The appellant was the fourth defendant declaration and injunction. The suit was filed for that the plaintiff' was the absolute owner ol;'_the:.ssyuijt defendants had no claim over anyfright of way or the 'tree_s on the said property. The issues werelllllf'frarz1e_d by the defendants. It was the seco11dr"defe,ndant set up the claim of prescriptive right o«fway:a"r'1d'it:'wasA.defendanltsll3 and 4 who had claimed 2,.dvers'e~ .posselssior1l"over_the trees in the suit property. Insofar as theright lwlapy'fof._deié.ndant No.2, the trial Court held that it VVf'cIS' established.' flnslofar as adverse possession over trees is trial Court held that it was not proved by the defc.nda_nts';" The slainle having been carried in an appeal, the lower if appellate C'our't".llhas reversed the judgment and held that the pj'a.,in'tifI"f_wasl the absolute owner of the property and insofar as the 'rl_ght'§of way was concerned, it was the subject matter of an § independent suit filed by the present appellant and accoidingly, held against the defendants. it is that which is under challen. the present appeal.

3. The lower appellate Cour't""ha*vingi_yi« the V absence of a counter claim by the defendants, it ceuld granted the relief in a suit fort.Vvidreclaratlion'and lperinanent injunction, at best the suit fought to been disniiissed, even if Such a finding is to be recorded, 0-n"-.thaTt_note the appellate Court has reversiid

4. Gitven'iithfe~_circurn_s'tance that the appellant has indeed filed the suitl'c«1.ai1nin;g._ea~3_eimeiitary right of pathway over the suit the .Vfindiinlgs»..,nf«'the trial Court or the lower appellate vcolu-l.§_l'novt.:p1*ejudice the suit of the appellant, which would have be.ti"ie§l'independently. The very finding of the lower 3"-'«4___appellate' Court that since there was no counter claim by the aide-fe'n.dai.nts, the relief ought not have been granted in favour of the =d..e_felndants would support this view. The appellant having filed an independent suit to claim a right of way, which was not a_n_ issue before this Court in the present appeal wouid not preju:d'iee.u.ti2e appe11ant's claim in respect of the right of way. As the trial Court that there was no materﬁilmto 'es.tab1isi2--tl_§e-- of adverse possession in respect of the treesha.vi11g af7}fErrr1ed b3y.the"g lower appellate Court, it does not"'w:étr"rar1t ati'1~y_ 'eo--1Vtiside§ratio11 by this Court. No substar1tia1'q4u'e.stioh 0f.IVéiwV_ for consideratiort.

5. Accordingly, toheﬁappetli of without prejudice to thepppeéneliuieﬁg cl-{the :_4é1pp'e1fa'r1t"'as regards the right sal-

'judge

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