Karnataka High Court
G R Prabhakar S/O Ramanna Gowda vs G T Ramannagowda S/O Thammegowda on 7 November, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
R.S.A.NO.2143 OF 2011(INJ)
BETWEEN:
G R PRABHAKAR
S/O RAMANNA GOWDA
AGED ABOUT 48 YEARS
AGRICULTURIST
R/O GOLGODU
ADDAGADDE VILLAGE AND POST,
SRINGERI TALUK
... APPELLANT
(By Sri:NEELAKANTAPPA K PUJAR, ADV., )
AND :
G T RAMANNAGOWDA
S/O THAMMEGOWDA
AGED ABOUT 72 YEARS
AGRICULTURIST
R/O GOLGODU
ADDAGADDE VILLAGE AND POST-577 137
SRINGERI TALUK
CHICKMAGALUR TALUK
... RESPONDENT
(By Sri:S V PRAKASH, ADV., FOR C/R )
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THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 14.6.2011
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PASSED IN R.A.NO.125/2010 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT,
CHIKMAGALUR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED: 10.6.2008
PASSED IN O.S.NO.7/2004 ON THE FILE OF THE CIVIL
JUDGE (JR.DN) SRINGERI.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:-
JUDGMENT
This is the defendant's second appeal. The appellant herein is the son of respondent herein. Suit came to be filed by the respondent herein initially for permanent injunction restraining the defendant/appellant from cutting and obstructing the road, free passage and for closing the water channel situated in Sy.No.174 of 'B' schedule property at C.D., and G.H.., points. During the pendency of the suit, the plaint was amended and decree for mandatory injunction was also sought for.
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2. The case of the plaintiff-respondent herein is that the plaintiff and the defendant being father and son respectively were using the existing road in Sy.No.174 since many years. They also used to take water from the channel existing in Sy.No.174 for cultivating the family agricultural properties since the time of the ancestors. Partition has taken place between the father and son as per Ex-P2 dated 11.6.2001. As per the said partition, 'A' schedule property has fallen to the share of the plaintiff and 'B' schedule property has fallen to the share of the defendant. Since the defendant started obstructing the plaintiff from using the pathway which was being used by him and other family members all through and since the defendant started closing the water channel so as to deny the irrigation facilities to the lands of the plaintiff, suit for injunction was filed initially. 4 During the pendency of the matter, the defendant obstructed by putting up bund etc., and therefore, additional prayer for mandatory injunction was sought for by amending the plaint. The plaintiff produced the documents such as rough sketch, RTC extracts, village map, photographs and other documents in support of his case.
3. The case of defendant is that of total denial. He denies that the plaintiff has got casementory rights over the road or the water channel. He further submits that the plaintiff has got alternative way to go to his land. The case of the defendant is that since there was no road or channel in Sy.No.174, there is no question of cutting the road or water channel as alleged by the plaintiff.
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4. The Trial Court dismissed the suit. The first Appellate Court set-aside the judgment of the Trial Court and decreed the suit by allowing the appeal.
5. Learned Counsel appearing for the appellant submits that the First Appellate Court is not justified in reversing the judgment of the Trial Court, inasmuch as, the material on record is not sufficient to hold that there is water channel or the road or pathway in Sy.No.174 and that the plaintiff has been drawing the water from the said channel or has been using the pathway. The record of rights, village map does not reveal the pathway as well as water channel.
6. Even according to the plaintiff, the pathway is having width of two to three feet and the said pathway was being used all through from 6 the time of his ancestors and that was the only pathway to approach and till the land so also to the house. Even the water channel is also flowing in Sy.No.174 and the water from that channel is being used for agricultural purposes. Though the village map does not reveal the pathway and the water channel, the Trial Court is not justified in dismissing the suit.
The defendant admits that the partition has taken place between the parties as per Ex-P2. The partition deed Ex-P2 clearly reveals that the water channel is flowing since the time of the ancestors and that the pathway is also in existence since the time of ancestors. It is also stated in the partition deed that water channel as well as pathway should be used by both the parties amicably without obstructing each other as was being done 7 earlier. In view of specific averments found in the partition deed, it is clear that there was pathway as well as water channel. Both the parties agreed for the same and have signed Ex-P2. Thus it is not open for the defendant now to contend that there is no pathway or the water channel.
7. In view of the same, First Appellate Court is not justified in decreeing the suit.
No question of law, much less, substantial question of law arises in this appeal. The appeal purely rests on appreciation of facts which is already been done by both the Courts below. Hence, the appeal stands dismissed without being admitted.
Sd/-
JUDGE *mn/-