Karnataka High Court
Yeladalu G Eshwara vs K N Nagaraj on 29 January, 2014
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
R.S.A.NO.534/2012 (DEC & INJ)
BETWEEN
1. YELADALU G. ESHWARA
S/O LATE Y.T.GANAPATHI,
AGED ABOUT 65 YEARS,
R/O KALAKERI NIDUGANE VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT.
2. YELADALU G. GIRIYAPPA
S/O LATE Y.T. GANAPATHI
AGED ABOUT 58 YEARS
R/O KALAKERI NIDUGANE VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT.
3. YELADALU G. SHIVAPPA,
S/O LATE Y.T.GANAPATHI,
AGED ABOUT 55 YEARS
RESIDING NEAR SENIOR COLLEGE,
MADIKERI TOWN,
KODAGU DISTRICT.
4. YELADALU G. PALANGAPPA
S/O LATE Y.T. GANAPATHI,
AGED ABOUT 48 YEARS
R/A NEAR SENIOR COLLEGE,
MADIKERI TOWN,
KODAGU DISTRICT.
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5. SMT. LEELAVATHI
D/O LATE Y.T. GANAPATHI,
W/O BANNUR ACHAYYA,
AGED ABOUT 53 YEARS
RESIDING BEHIND REMAND HOME,
MADIKERI TOWN,
KODAGU DISTRICT.
6. SMT .KUSUMA
D/O Y .T. GANAPATHI,
W/O KOMPIL KOLAPPA @ RAJA,
AGED ABOUT 51 YEARS
R/O AVANDOOR VILLAGE
MADIKERI TALUK,
KODAGU DISTRICT.
7. KARKARANA P .THAMMAIAH
SINCE DECEASED BY LRs
(a) SMT K.T. SEETHAMMA,
W/O LATE K .P.THAMMAIAH
AGED ABOUT 74 YEARS
(b) K.T. SOMANNA
S/O LATE K.P. THAMMAIAH,
AGED ABOUT 51 YEARS
(c) K.T. UTHAIAH,
S/O LATE K.P.THAMMAIAH
AGED ABOUT 48 YEARS
(d) K.T. JANARDHANA
S/O LATE K.P.THAMMAIAH
AGED ABOUT 44 YEARS
(e) K.T. KUSHALAPPA,
S/O LATE K.P.THAMMAIAH,
AGED ABOUT 40 YEARS
APPELLANTS - 7(A) TO (E)
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ALL ARE RESIDENTS OF
KALAKERI NIDUGANE VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT.
8. KARKARANA P. POOVAIAH,
S/O LATE KARKARANE PONNAPPA
AGED ABOUT 82 YEARS,
KALAKERI NIDUGANE VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT.
9. KURIKODA APPAJI
S/O LATE SOMAIAH,
AGED ABOUT 74 YEARS
R/O PALUR VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT.
10. BAKILANA A. DEVARAJA
S/O LATE APPAIAH,
R/O PENSION LANE,
MADIKERI TOWN,
KODAGU DISTRICT.
... APPELLANTS
(BY SRI G.PAPI REDDY, ADV.,)
AND
1. K.N. NAGARAJ
S/O LATE KINILA NARAYANA BHAT,
AGED ABOUT 72 YEARS,
R/O KALAKERI NIDUGANE VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT.
2. SMT. KAMALA
D/O LATE Y.T.GANAPATHI
W/O PARIWARA BOPANNA,
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AGED ABOUT 60 YEARS
R/O CHERANGALA VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT.
3. KARKARANA P. KRISHNAPPA,
S/O LATE KARKARANA PONNAPPA,
AGED ABOUT 84 YEARS
R/O GALIBEEDU VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT.
4. KURIKADA A. RAMESH
S/O APPAJI
AGED ABOUT 49 YEARS
R/O PALUR VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT.
... RESPONDENTS
(BY SRI T.I.ABDULLA FOR HEGDE ASSTS., ADV., FOR R1
R2 IS SERVED AND UNREPRESENTED
NOTICE TO R2 AND R3 IS DISPENSED VIDE
ORDER DT.04.04.13.)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 16.1.2012 PASSED IN
R.A.NO.7/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MADIKERI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED:18.12.2006 PASSED IN
O.S.NO.152/2002 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN) MADIKERI.
THIS RSA COMING ON FOR ADMISSION, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Defendants 1 to 4, 7 to 10, 12 and 14 in OS.No.152/2002 on the file of Principal Civil Judge (Jr.Dn), Madikeri, have come up in this second appeal impugning the concurrent finding of both the courts below in decreeing the suit of plaintiff, who is first respondent herein declaring his right to use and enjoy the suit schedule path to reach his property bearing Sy.No.26 of Kalkeri Nidugane village, Madikeri Nad, Madikeri Taluk, Kodagu District and other consequential reliefs of mandatory injunction against defendants directing them to remove all the obstructions on schedule path and to restore it for peaceful possession and undisturbed enjoyment of plaintiff. For the sake of brevity, the parties herein are referred to by their rank in the original suit.
2. The undisputed facts leading to this second appeal are that, plaintiff in the original suit - K.N.Nagaraj is s/o one Smt.Kameshwari, who is the niece of Smt.Devamma, who was owner of a block of 37-54 acres of wet land and 285-93 acres of Bane land in the aforesaid survey number. The fact that entire 37-54 acres of wet land and 285-93 acres of Bane land formed -6- one contiguous part and that was the absolute property of Devamma is not in dispute. It is also not in dispute that said lady bequeathed the aforesaid property in favour of her near relatives over a period of time and Smt.Kameshwari, mother of plaintiff is one such beneficiary having secured an extent of 3 acres wet land and 21 acres Bane land under Ex.P8, a Will executed in her favour by Devamma in the year 1956. It is further not in dispute that remaining portion of the entire block consisting of 37-54 acres wet land and 285-93 acres Bane land was in possession, cultivation and enjoyment of various other relatives of plaintiff. It is further not in dispute that it is only plaintiff, who continued to be in possession of the portion which was bequeathed by Devamma in favour of her niece, namely Kameshwari, which has subsequently come to the share of plaintiff under a registered Will of 1974.
3. It is the case of plaintiff that entire extent of 37-54 acres wet land and 285-93 acres Bane land being in one contiguous bit, beneficiaries of different portions of land together formed a path way to reach their respective property, which was in possession and enjoyment of various relatives of -7- Devamma being beneficiaries under gift and bequest made in their favour. It is his specific case that suit schedule path is the land which was available to reach his property, which was bequeathed in favour of his mother by Devamma and subsequently, in his hands since 1974 after the death of his mother, Kameshwari. It is further not in dispute that defendants 1 to 14 are the persons, who have purchased various bits of land, which was originally owned by Smt. Devamma and subsequently given to her relatives by her and from whom defendants 1 to 14 have purchased said lands and they are presently in cultivation and enjoyment of the same. When matter stood thus, it is seen that the right of plaintiff to reach his property through the suit schedule path was challenged, on the ground that said land falls within Sy.No.65/5 and 65/6 which is acquired by some of the defendants under different sale deeds, which are produced and marked as Exs.P4 to P7. It is their specific case that none of these documents refer to the existence of path in respect of which plaintiff is seeking right of way to reach his property. -8-
4. With the aforesaid pleadings, the trial Court proceeded to frame the following issues:
1. Whether the plaintiff proves that a stretch of land measuring 10 ft wide North-South and about 450 ft long East.West, was surveyed, demarcated and reserved at the time of partition in 1963 for the use of Sri.A.P.Gopalakrishna, Sri.A.P. Subbayya and Smt.Kameshwari as a path to reach their respective shares from Madikeri Galibeedu Public road?
2. Whether the plaintiff proves that his mother Smt.Kameshwari has been using the schedule path for herself and her men and animals since 1963 openly peacefully continuously as of right to the knowledge of the defendants?
3. Whether the plaintiff proves that after the death of his mother i.e., Smt.Kameshwari he has been using the said path for himself, his men and animals?
4. Whether the plaintiff proves that the suit schedule path is the only path for the plaintiff to reach Madikeri Galibeedu Public road?
5. Whether the plaintiff proves that the defendants have encroached the side portion of the schedule path and thereby reduced the width of the schedule path to two or three feet?
6. Whether the defendants proves that the plaintiff is having a separate, independent motorable road to the house of the plaintiff?
7. Whether the plaintiff proves that he is entitled for the reliefs claimed in the suit?
8. What Order or decree?-9-
The relevant issues are, issue Nos.4 and 5, which deal with the existence of path and right of plaintiff to use the same to reach his property through Galibeedu public road and the obstruction that is caused by defendants in plaintiff using the said road. The other relevant issue is issue No.6, which was framed based on the defence that was raised by defendants 1 to 14 that plaintiff has alternate road available instead of the suit schedule path.
5. In the said proceedings, after appreciating the evidence of plaintiff as PW.1 and the evidence of three other independent witnesses as PWs.2 to 3, considering the document which is at Ex.P3, a sketch which was prepared by the Surveyor, also various other documents like Will executed by Devamma in favour of her niece, Kameshwari and further Will, which is executed by Kameshwari in favour of her son, the other related sale deeds and after appreciating the evidence of defendants, the trial court has answered issue Nos.4 and 5 in the affirmative holding that plaintiff has established that suit path is the only path available for plaintiff to reach his property through Madikeri Galibeedu public road and the defendants
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have encroached in to the same by putting up construction and obstructing free movement of plaintiff through said path to reach his property. While giving affirmative answer on these two issues, the trial Court has held that defendants have failed to establish an alternate road being available to plaintiff to reach his property by answering issue No.6 in the negative. The finding of trial court on issues 4 to 6 was the subject matter of lower appellate court in RA.No.7/2007, which was filed by some of the defendants, who are appellants herein.
6. In the lower appellate court, the issues which were framed by the trial court were considered as points for consideration, which read as under:
1. Whether the plaintiff proved that there is a 10 ft.width, 450 ft. length road was reserved at the time of partition in the year 1963 for use of the property allotted to the share of Smt.Kameshwari and also A.P.Gopalkrishna and A.P.Subbayya on the basis of the Will of respective shares from Madikeri Galibeedu Public road, and it runs through the middle of the bane land in Sy.No.65/5 and wet land in Sy.No.66, bifurcating both holdings into two portions and ended at the stream running in between wet land sy.no.66 allotted to A.P.Subbayya and wet land Sy.No.26 allotted to Smt.Kameshwari?
2. Whether the plaintiff proved that his mother was using the suit path since 1963 openly, peacefully, continuously as of right to the knowledge of all including the
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defendants to got to her property, and after death of his mother he has been using the same?
3. Whether the plaintiff proved that it is the only path for him to reach Madikeri - Galibeedu road?
4. Whether the plaintiff proved that the defendants have encroached the said portion of the schedule path and thereby reduced the width of the schedule path to two or three feet?
5. Whether the defendants proved that there is an alternative motorable road to the house of the plaintiff?
6. Whether the plaintiff is entitled for the reliefs as prayed for?
7. Whether the judgment and decree of the trial court is required to be interfered with?
8. Whether there is ground to allow Ia.No.6?
9. Whether the appellants are entitled to adduce additional evidence as prayed in IA.Nos.7 and 9?
10.What order?
On reappreciation of oral and documentary evidence available on record, the lower appellate court has answered point Nos.3 and 4 on similar lines as that of the finding given by the trial court on issue No.4 and 5 and similarly confirmed the same. Whereas in respect of point No.5 following the finding of trial court on issue No.6, the same is answered in the negative holding that the finding of the trial court regarding
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existence of suit schedule path and the same being available as only road available to plaintiff to reach his property and that there is no other alternate road available to plaintiff to reach his property, is just and proper. As against the concurrent finding of both the courts below, this second appeal is filed by the defendants 1 to 4, 7 to 10, 12 and 14.
7. Heard the learned Counsel for appellants as well as counsel for contesting respondent. On going through the judgment of both the courts below with reference to the pleadings, oral and documentary evidence available on record, it is clearly seen that appellants herein, who are defendants in the trial court, are the subsequent purchasers of various bits of property, which was bequeathed or gifted by the original owner, Devamma in favour of some of her relatives, namely, her niece and nephews. It is only from 1967 some of the relatives of Devamma started disposing of the properties, which had been gifted to them by Devamma and under said sale deeds defendants 1 to 14 were put in to possession and enjoyment of several bits of properties, which was earlier owned by Devamma. While doing so, the property, which was gifted to
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Kameshwari, plaintiff's mother remained intact and that has subsequently come to plaintiff through a bequest made in his favour in the year 1974 vide Ex.P9. With this, it is clearly seen that there is change in the ownership of several bits of land adjacent to suit schedule path, but the possession, cultivation and enjoyment of Sy.No.26 which consists of 3 acres of wet land and 21 acres of bane land continued with the family of plaintiff. Admittedly, plaintiff has been in possession, enjoyment and cultivation of the same using the suit schedule path as the only path available to reach his property as rightly observed by both the courts below.
8. On reappreciation of the pleadings and evidence available on record, this Court find that as against the concurrent finding of both the courts below on facts, no grounds are made out to admit this second appeal, inasmuch as, no substantial question of law arises for consideration in this appeal. Accordingly, this second appeal is dismissed.
Sd/-
JUDGE nd/-