Dismissed

Y C Gowrish v. Sri. K B Shambu

Karnataka HC9 Feb 2022RSA/1603/2013

Case brief

AI extract

What is this about?

In a regular second appeal concerning a property dispute over land in Sy.No.279, the High Court of Karnataka upheld the dismissal of the appellant's suit for permanent injunction. The lower courts found that the alleged pathway usage by respondents occurred outside the suit schedule property and no interference was proven.

What did the court decide?

The regular second appeal is dismissed; the judgment and decree of the trial court and first appellate court are confirmed.

Y C Gowrish Vs Sri. K B Shambu — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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REGULAR SECOND APPEAL NO.1603 OF 2013

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BETWEEN:

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Y.C. GOWRISH AGED ABOUT 37 YEARS S/O CHANNABASAPPA YEDEHALLI VILLAGE NONAVINAKERE HOBLI TIPTUR TALUK TUMAKURU DISTRICT - 572 201.

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... APPELLANT

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(BY SMT SHRUTHI S P, ADVOCATE FOR SRI VINAYA KEERTHY M, ADVOCATE)

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AND:

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SRI K B SHAMBU AGED ABOUT 50 YEARS S/O BASAPPA

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MANJULAMMA

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AGED ABOUT 45 YEARS W/O K.B. SHAMBU BOTH ARE RESIDENTS OF KANNUGHATTA NONAVINAKERE HOBLI TIPTUR TALUK TUMAKURU DISTRICT - 572 201.

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…RESPONDENTS

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(BY SRI S NAGARAJA, ADVOCATE).

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THIS APPEAL IS FILED UNDER SECTION 100 R/W ORDER XLII OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD 12.08.2013 PASSED IN R.A.NO.21/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., TIPTUR, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD 18.1.2007 PASSED IN O.S.NO.108/2007 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) & JMFC, TIPTUR.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present regular second appeal is filed by the appellant/plaintiff aggrieved by the concurrent findings rendered in the judgment and decree dated 18/01/2007 in O.S.No.108/2007 by the Additional Civil Judge (Junior Division) and J.M.F.C., Tiptur (for short hereinafter referred to as 'the Trial Court') and the judgment and decree dated 12/08/2013 in RA.No.21/2008 by the Senior Civil Judge and J.M.F.C, Tiptur (for short hereinafter referred to as 'the First

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Appellate Court') dismissing the suit of the

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appellant/plaintiff for bare injunction.

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The case of the appellant/plaintiff is that;

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he is the absolute owner of the suit schedule property

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being land in Sy.No.279 measuring 1 acre 1 gunta having purchased the same in terms of deed of sale dated 30/01/1984. That the revenue records are standing in his name. That the

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respondents/defendants having no manner of right over the suit schedule property are claiming pathway through the suit schedule property and are forcibly making attempt to form pathway through the suit schedule property. Hence, the appellant/plaintiff was constrained to file the suit for permanent injunction preventing the respondents/defendants from causing interference.

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Upon service of summons, the

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respondents/defendants entered appearance. Defendant No.1 filed written statement and defendant No.2 adopted the same, specifically contending that they are the owners of land bearing Sy.No.137/3A of Kannughatta Village measuring 1 acre 20 guntas having purchased the same in terms of the deed of sale dated 05/10/1998 and the revenue records are standing in their names. That there is a pathway existing on the eastern side of schedule property in a north-south direction and the said pathway is still existing which is being used by them to have access to their property and to carry the cattles through. That the property of the brother of the plaintiff by name Sarvesh is existing on the southern side of the suit schedule property and except the said pathway there is no other way to reach their property. That the appellant/plaintiff without disclosing the existence

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of pathway has filed the suit for permanent injunction with an intention to cause obstruction in the defendants' enjoying the said pathway. Hence, sought for dismissal of the suit.

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The Trial Court based on the pleadings framed the following issues:

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(1) Whether the plaintiff proves his lawful possession and enjoyment of suit schedule property as on date of suit?

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(2) Whether the plaintiff further proves the alleged interference by the defendants?

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(3) Whether the plaintiff is entitle for permanent injunction?

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(4) What order or decree?

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The plaintiff examined himself as P.W.1

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and one Rajashekaraiah has been examined as PW.2

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and exhibited 5 documents as per Ex.P1 to Ex.P5. On behalf of the defendants, three witnesses have been examined as DWs.1 to 3 and exhibited 12 documents as Exs.D1 to D12. On appreciation of evidence, the Trial Court by its judgment and decree dated 18/01/2008 dismissed the suit of the appellant/plaintiff as the plaintiff failed to prove the interference by the defendants. Aggrieved by the same, appellant/plaintiff filed regular appeal in RA.No.21/2008 before the First Appellate Court. Considering the grounds urged in the appeal memo, the First Appellate Court framed the following points for its consideration.

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(1) Whether the appellant proves the judgment and decree of the Trial Court is perverse, capricious and opposed to law and existing factual circumstance of this case, does it need interference by this Court?

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(2) What order?

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On re-consideration of oral and

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documentary evidence, the first appellate court, by its judgment and decree dated 12/08/2013 dismissed the appeal of the appellant/plaintiff and confirmed the judgment and decree passed by the Trial Court. Being aggrieved with the same, the appellant/plaintiff is before this Court in this regular second appeal.

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Smt. Shruthi S.P., learned counsel for the appellant/plaintiff reiterating the grounds urged in the appeal memorandum submitted that;

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a) That the trial court and the first appellate court even in the absence of any material evidence with regard to existence of pathway have grossly erred in dismissing the suit accepting the contention of the respondents/defendants.

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b) That the respondents/defendants had not

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claimed any easementary rights at any point of time

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over the pathway and the courts below, thus, erred in recognizing the right of respondents/defendants to use the pathway and thereby causing miscarriage of justice which gives rise to substantial question of law requiring consideration. Hence, sought for allowing the appeal.

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Heard the learned counsel for the

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appellant/plaintiff and perused the records.

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It is the specific case of the

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appellant/plaintiff that he being the absolute owner of the suit schedule property has been in exclusive possession and enjoyment thereof. That the respondents/defendants are forcibly making attempt to form pathway through suit schedule property. As observed by the trial court and the first appellate court the pathway is existing is outside of the boundaries of the suit schedule property. Except

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stating that the respondents/defendants are making attempt to form pathway through suit schedule property, the appellant/plaintiff has neither pleaded nor produced any material evidence regarding interference by the respondents/defendants.

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The respondents/defendants, on the other hand, have contended that they have been using pathway which is situated on the eastern side of the suit schedule property running north-south. The pleading and material evidence would reveal that there was no interference by the respondents/defendants into the suit schedule property of the appellant/plaintiff.

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On a holistic reading of the pleading and material evidence, no fault can be found with the reasoning and finding given by the trial court and the first appellate court. For the aforesaid reasons and

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analysis, no substantial question of law is involved in this appeal requiring consideration. In the result, the following.

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ORDER i) Regular Second Appeal No.1603/2013 filed by the appellant/plaintiff is dismissed.

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ii) The judgment and decree dated 18/01/2007 passed in OS.No.108/2007 by the trial court and the judgment and decree dated 12/08/2013 passed in RA.No.21/2008 by the first appellate are confirmed.

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Sd/JUDGE

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Mkm

Y C Gowrish v. Sri. K B Shambu

Case brief

What is this about?

What did the court decide?

Y C Gowrish v. Sri. K B Shambu

Case brief

What is this about?

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