Karnataka High Court
Chandru @ Ramchandra S/O Ram Naik vs Ganapati Rama Bhat on 16 June, 2014
Author: A.V.Chandrashekara
Bench: A.V. Chandrashekara
1 R.S.A. No. 5721/2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V. CHANDRASHEKARA
R.S.A. No. 5721/2010 (PAR)
BETWEEN:
CHANDRU @ RAMACHANDRA,
S/O RAM NAIK, AGE: 51 YEARS,
OCC.: AGRICULTURIST, R/O KUJALLI,
TQ.: KUMTA, DIST.: UTTARA KANNADA.
- APPELLANT
(BY SRI. NARAYAN V. YAJI, ADVOCATE)
AND:
1. GANAPATI RAM BHAT, AGE: 75 YEARS,
OCC.: AGRICULTURIST, R/O KUJALLI,
TQ.: KUMTA, DIST.: UTTARA KANNADA.
2. KRISHNAMURTHY SUBRAY BHAT, AGE: 41 YEARS,
OCC.: AGRICULTURIST, R/O KUJALLI,
TQ.: KUMTA, DIST.: UTTARA KANNADA.
3. NIRANJAN SUBRAY BHAT, AGE: 35 YEARS,
OCC.: AGRICULTURIST, R/O KUJALLI,
TQ.: KUMTA, DIST.: UTTARA KANNADA.
4. GRAM PANCHAYAT KUJALLI,
REP BY ITS SECRETARY, R/O KUJALLI,
TQ.: KUMTA, DIST.: UTTARA KANNADA.
5. SUBRAY RAMA NAIK, AGE: 80 YEARS,
OCC.: AGRICULTURIST, R/O KUJALLI,
TQ.: KUMTA, DIST.: UTTARA KANNADA.
6. MANJUNATHA RAMA NAIK, AGE: 67 YEARS,
OCC.: AGRICULTURIST, R/O KUJALLI,
2 R.S.A. No. 5721/2010
TQ.: KUMTA, DIST.: UTTARA KANNADA.
7. SMT. MAHADEVI VENKATRAMANA NAIK,
AGE: 59 YEARS, OCC.: HOUSEHOLD,
R/O KUJALLI, TQ.: KUMTA,
DIST.: UTTARA KANNADA.
8. VENKATRAMAN RAMA NAIK, AGE: 54 YEARS,
OCC.: AGRICULTURIST, R/O KUJALLI,
TQ.: KUMTA, DIST.: UTTARA KANNADA.
- RESPONDENTS
(BY SRI B.D. HEGDE, ADVOCATE FOR R1-R3,
NOTICE TO R4-8 ARE SERVED)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 24.04.2010 PASSED IN R.A. NO.
104/2006 ON THE FILE OF THE CIVIL JUDGE (SR. DN.), KUMTA,
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT DATED
20.03.1999 AND THE DECREE PASSED IN O.S. NO. 123/1985 ON THE
FILE OF THE CIVIL JUDGE (JR. DN.), KUMTA DISMISSING THE SUIT
FILED FOR PERMANENT INJUNCTION & ETC.
THIS APPEAL COMING ON FOR ADMISSION ON THIS DAY, COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
1. Appellants herein are the defendants in O.S. No. 123/1985 which was pending on the file of Court of Civil Judge (Jr. Dn.), Kumta. Respondents herein were the defendants in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court. The suit filed for the relief of permanent injunction in respect of suit schedule property which is a road running in sy. No. 139/3 and 139/5 of Kujalli village came to be 3 R.S.A. No. 5721/2010 dismissed after contest. Appeal filed u/S 96 of CPC in R.A. No. 104/2006 has been allowed and suit is decreed as prayed for restraining defendant nos.2 to 4 from blocking or closing the pathway 'A' facing sy. No. 139 of Kujalli village as shown in double dotted lines marked as Ex.P.4 and from changing extent of the location of the said panchayath road from forming any other roadway in the said property or from encroaching any other portion. Ex.P.4 is treated as part and parcel of the decree.
2. Heard learned counsel for the appellant in regard to admission. Perused judgments of both the Courts below.
3. According to the plaintiffs, a road runs from Malapura cross to Kujalli village through sy. Nos. 139/3 and 139/5 on the Southern side at a distance of about 165 ft. running from East to West. Plaintiff no.1 is stated to be the owner in possession of sy. No. 139/3 of Kujalli village and plaintiff nos.2 and 3 are the owners in possession of sy. No. 139/5. In these properties house, cattle shed, well and garden lands of the parties are situated. Land in sy. No. 137 is the joint 4 R.S.A. No. 5721/2010 family property of defendants 3 and 4 on which their cattle shed, house, etc. are situated. Defendant no.3 is the mother of defendant no.4 and defendant no.3 is running a bullock cart in the village. According to the plaintiff, panchayath road runs from Malapur cross to Kujalli in the East-West direction for more than 60 years. The said road is stated to be situated on the Southern side of plaintiff's property at a distance of 160-165 from the Southern boundary towards Northern side. Width of the road is 14 ft. and a drain is on the Southern side. The said road has been managed and repaired by the gram panchayath. Plaintiffs have made arrangements to prevent cattle and public from entering their lands from this road. When the plaintiff intended to develop property towards Northern side of the road, defendant nos.2 to 4 took up quarrel stating that they would block the road from Northern side of this road for taking bullock. Hence he has filed the suit for permanent injunction.
4. Defendant no.1 has filed written statement stating that he is not a necessary party to the suit. Defendant no.1 contends that suit road 5 R.S.A. No. 5721/2010 runs from Malapur to Kujalli Harijanakeri and the same is in existence from the time immemorial. Earlier the road was repaired by Taluk Board and now by Zilla Parishad and now this road runs in sy. No. 139/8 and 137 and other survey numbers. Defendant nos.2 to 4 are obstructing the suit road when they intend to repair the same. While defendants have specifically denied the same and have called upon the plaintiff to prove the contents of the plaint. According to the defendant nos.2 to 4, plaintiff with the assistance of officials of his own caste for having tried to encroach upon this land and has made an attempt to show that the road is on the hillock area. According to them, defendants and the villagers have been using 'LMB' road which is shown by the Court Commissioner in his sketch for more than 25 years and they are taking their cattle, bullocks and vehicles in this road. According to them this road is absolutely required and they have acquired easement of necessity by prescription. With these pleadings they have prayed for dismissal of the suit. 6 R.S.A. No. 5721/2010
5. On the basis of the above pleadings, following issues are framed by the trial Court.
ISSUES
1) Whether the plaintiff proves that he was in lawful possession over the suit lands as on date of suit?
2) Whether the plaintiff proves that the defendants are trying to construct road over the suit property?
3) To what relief plaintiff entitled?
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6. First plaintiff is examined as P.W.1 and 3 witnesses have been examined on their behalf. On behalf of the defendants, three witnesses have been examined. Six exhibits have been got marked on behalf of the plaintiff inclusive of the Commissioner report. Two exhibits have been got marked on behalf of the defendants. Ultimately, suit came to be dismissed after answering issue nos.1 to 3 in the negative. Appeal has been allowed, learned Judge of the first appellate Court has framed the following points for consideration as found in paragraph no.18 at page no.11 of the impugned judgment. 7 R.S.A. No. 5721/2010
POINTS
1) Whether the finding of the Trial Court that the road shown as 'A M B' in Ex.P.3 is the panchayat road passing through Sy. N. 137 and 139 and the road shown as 'L O B' in Ex.P.3 as claimed by the plaintiff is not the panchayat road is contrary to the facts and circumstances of the case and the evidence on record and against the principles of law and calls for interference by this Court?
2) Whether the dismissal of the suit by the Trial Court with compensatory costs is contrary to the facts and circumstances of the case and the evidence on record and against the principles of law and calls for interference by this Court?
3) What order?
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7. There is no dispute that this land originally belonged to panchayath and being repaired by panchayath. Earlier it was repaired by the Taluk Board and now the said road belongs to zilla parishad. It is specifically averred that road passes in sy. No. 137 and 139/8 and defendant nos.2 to 4 are obstructing them to repair the road which passes in sy. No. 137. Ex.P.4 is a very important document and it is a survey sketch. The authenticity of the same is not seriously disputed by both the sides. The exact existence of the road and its location of the counters are forthcoming in Ex.P.4. The same has been analyzed 8 R.S.A. No. 5721/2010 in the light of the report of the Commissioner. The existence of the road in the property of the plaintiff is admitted and the panchayath has stated that the road from point 'B' to 'O' is the panchayath road and therefore it has to be held that it is a panchayath road. The report of the Commissioner only shows the factual position at the spot and it cannot be a sole piece of evidence. The said report of the Commissioner will have to be considered as any other piece of evidence and it cannot be decisive in the light of Ex.P.4 becoming very star document. The first appellate Court has held that the defendant nos.2 to 4 will have to be restrained. The first appellate Court has properly reassessed the entire evidence and has given cogent reasons as to how the trial Court has gone wrong. Evidence of P.W.1 would go to show that he has increased height of his land from the road by putting up a bund so as to prevent the entry of other cattle and people to his property. Therefore, the observation of the trial Court that plaintiff has blocked the road is without any substance. 9 R.S.A. No. 5721/2010
8. Taking into consideration the facts and circumstances of the case, the first appellate Court has rightly decreed the suit. It has given cogent answers in regard to the factual finding. The first appellate Court has adopted right approach to the real state of affairs. It has taken into consideration the existence of the panchayath road and its maintenance being made from quite a long time. In this view of the matter, no substantial question of law arises in this appeal for consideration. Hence the appeal will have to be dismissed as unfit for admission.
ORDER Appeal is dismissed as unfit for admission.
Sd/-
JUDGE bvv