Allowed

C Manju S/O Channaraya Reddy v. Munivenkataramanappa S/O Munivenkatappa

Karnataka HC6 Jun 2023RFA/157/2008

Case brief

AI extract

What is this about?

In a regular first appeal challenging a decree of permanent injunction, the High Court set aside the trial court's finding that a disputed schedule property was a road. The appeal was allowed, and the suit was dismissed due to lack of evidence for a southern road.

What did the court decide?

The judgment and decree dated 31.10.2007 in O.S.No.654/2004 are set aside and the suit is dismissed.

C Manju S/O Channaraya Reddy Vs Munivenkataramanappa S/O… — Partition | Karnataka HC (2023)

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NC: 2023:KHC:19191 RFA No. 157 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD REGULAR FIRST APPEAL NO. 157 OF 2008 (DEC)

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BETWEEN:

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C MANJU S/O CHANNARAYA REDDY AGED ABOUT 29 YEARS

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CHANNARAYA REDDY S/O LATE MUNIYAPPA AGED ABOUT 54 YEARS

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BOTH ARE R/AT NO.19 KODIHALLI MAIN ROAD VARTHUR HOBLI BANGALORE SOUTH TALUK BANGALORE-560087. …APPELLANTS

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(BY SRI. K R RAMESH., ADVOCATE)

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Digitally signed by C MALATHI Location: High Court of Karnataka

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AND:

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MUNIVENKATARAMANAPPA S/O MUNIVENKATAPPA AGED ABOUT 55 YEARS R/AT NO.115/1, HASB KATHA NO.127/121 KODIHALLI GRAMA TANA VARTHUR HOBLI BANGALORE SOUTH TALUK BANGALORE-560087. …RESPONDENT

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(NOTICE TO RESPONDENT IS H/S)

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NC: 2023:KHC:19191 RFA No. 157 of 2008

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THIS RFA FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:31.10.2007 PASSED IN O.S.NO.654/2004 ON THE FILE OF THE I ADDL. CITY CIVIL AND SESS. JUDGE, BANGALORE (CCH-2), DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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

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JUDGMENT

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This appeal is filed by the defendants under Section

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96 of Civil Procedure Code challenging the judgment and decree dated 31.10.2007 passed by the I Additional City Civil & Sessions Judge, Bangalore, in O.S.No.654/2004,

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whereby the suit filed by the plaintiff is decreed.

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For the sake of convenience, the parties are

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referred to as per their rankings before the trial court.

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The case of the plaintiff is that he is the absolute

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owner of the property bearing Khata No.127/121, new number 115/1 situated at Kodihalli village, HAL Sanitary Board area, Varthur Hobli, Bangalore South Taluk, Bangalore, now coming within the Corporation Ward No.74 of Bangalore Mahanagara Palike, measuring 40 ft x 30 ft.,

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as per the ‘A’ schedule property.

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NC: 2023:KHC:19191 RFA No. 157 of 2008

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The further case of the plaintiff is that he has purchased the property by a registered sale deed dated 19.03.1981 from one Yerrappa and from the date of purchase, he is in physical possession of the suit schedule property.

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It is his further case that towards the southern side of the ‘A’ schedule property, there is an existing road, plaintiff and his family members are continuously using the said road and that is the only way plaintiff and his family members ingress and egress and the said road is shown as ‘B’ schedule property in the suit.

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It is his further case that the defendants while putting up construction of apartment in their property bearing Nos.114/1 and 114/2, trying to put a compound wall on the ‘B’ schedule property, by which they are blocking the road to the plaintiff and his family members. Therefore, plaintiff is constrained to file a suit for injunction.

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After service of summons, defendant No.1 appeared through counsel and filed written statement admitting that the plaintiff is the owner of ‘A’ schedule property, but denied the existence of the road on the southern side of the ‘A’ schedule property. It is an admitted fact that the vendor of the ‘A’ schedule property one Yerrappa is the grandfather of defendant No.1. It is further pleaded that towards western side of the plaintiff’s house, there is 4 ft. passage which runs in north – south direction, which was used by the plaintiff for his ingress and egress. He has specifically denied that there is a road towards southern side of the ‘A’ schedule property. Hence, he sought for dismissal of the suit.

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On the basis of the pleadings of the parties, the following issues were framed before the trial court:

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“1) Does the plaintiff prove his lawful possession in respect of ‘A’ schedule property?

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2) Does the plaintiff prove that ‘B’ schedule property is a road?

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NC: 2023:KHC:19191 RFA No. 157 of 2008

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3) Does the plaintiff prove that the defendant made attempts to block the ’B’ schedule property?

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4) What order or decree?”

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To prove the case, plaintiff examined himself as PW-1 and Ex. P1 to P19. On behalf of the defendants, defendant No.1 has been examined as DW1 and the Executive Engineer of Bangalore Mahanagara Palike as DW2 and marked Exs. D1 to D5. On consideration of the oral and documentary evidence, the trial court answered issue Nos. 1 and 3 in the affirmative and decreed the suit. Being aggrieved by the same, defendants have filed this appeal.

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Learned counsel appearing for the

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defendants/appellants contended that there is no road existing towards southern side of the ‘A’ schedule property. In fact, the road is existing on eastern side of the ‘A’ schedule property.

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6 - NC: 2023:KHC:19191 RFA No. 157 of 2008

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Secondly, to resolve the dispute the court appointed a Court Commissioner. The Court Commissioner has submitted a detailed report along with the sketch and has specifically stated that there is no road existing on the southern side of the ‘A’ schedule property. The Court Commissioner’s report has not been disputed by the plaintiff. Even nothing has been elicited by the plaintiff in the cross-examination of the Court Commissioner.

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Thirdly, in the cross-examination of PW-1 he has categorically admitted that they have an access for ingress and egress to their house from the eastern side. But the trial court only on the basis of Ex.P1 - boundary has decreed the suit.

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Fourthly, the trial court has wrongly held that even as per the boundary in Ex.D4, north side there is a road. In fact, the said deed - Ex.D4 is rectified by Rectification Deed at Ex.D5 wherein it is clearly mentioned that on the northern side there is a road as well as properties of

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NC: 2023:KHC:19191 RFA No. 157 of 2008

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plaintiff, but the trial court has failed to consider this aspect of the matter. Hence, he sought for allowing the appeal.

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The plaintiff/respondent served and

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unrepresented.

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Heard the learned counsel for the appellants. Perused the impugned order and the original records.

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The points for consideration in this appeal are,

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“(1) Whether the judgment and decree passed by the trial court is erroneous and perverse and calls for any interference from this Court?

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(2) Whether the trial court is justified in holding that ‘B’ schedule property is the road, in the facts and circumstances of the case?”

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It is not in dispute that the plaintiff is the owner

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of ‘A’ schedule property and he purchased the same by a registered sale deed dated 19.03.1981. The only dispute

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8 - NC: 2023:KHC:19191 RFA No. 157 of 2008

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in this case is regarding whether there is a road existing to southern side of the ‘A’ schedule property?

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The first defendant filed a written statement and categorically stated that in the sale deed - Ex.P1, the boundary has been wrongly shown that to the southern side of ‘A’ schedule property there is a road existing. He has also categorically stated that the road is existing only on the eastern side of the ‘A’ schedule property. The defendant also filed an application – IA No.4 before the trial court for appointment of a Court Commissioner. The trial court by order dated 07.06.2004 has allowed IA No.4 filed by the defendant under Order 26 Rule 1 of CPC and appointed a Court Commissioner to find out whether there is any road existing on the southern side of the ‘A’ schedule property. On the basis of the order passed by the trial court, the Commissioner has filed a report. He has categorically stated that there is no road existing on the southern side of the ‘A’ schedule property. But on the other hand, there is a road situated towards eastern side

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of the ‘A’ schedule property and he has also produced the sketch. The plaintiff has not filed any objection to the Commissioner’s report. The Commissioner has been examined as DW2. In his evidence he has re-iterated the statement made in the report. In the cross-examination of DW2 by the plaintiff, nothing worthwhile information

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has been elicited in favour of the plaintiff. But, the trial court without considering this aspect of the matter only on the basis of boundary shown in Ex.P1 has held issue No.2 in the affirmative.

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The plaintiff has been examined as PW1. In the cross-examination of PW1 by the defendant it is clearly admitted that, “I have not left any setback on any side of my house. Main door of my house is facing towards eastern side. That is the only door for us to ingress and outgress of my house. On eastern side of my house, there is a road. The said road runs from north to south.” Therefore, it is clear that there is no road existing on the southern side of the ‘A’ schedule property.

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10 - NC: 2023:KHC:19191 RFA No. 157 of 2008

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The trial court, relying on Exs. D4 and D5 has wrongly come to the conclusion that there is a road existing on the southern side of ‘A’ schedule property. In fact, Ex.D4 is the gift deed wherein it is shown that there is a road existing on the northern side of the defendant’s property. By rectification deed they have added that on the southern side along with the road, there is a property of the plaintiff existing. By looking at the sketch produced by the Court Commissioner it is very clear that there is a road existing in the northern side of the defendant’s property and also plaintiff’s ‘A’ schedule properties, there is no road existing on the southern side of the ‘A’ schedule property. This fact has not been noticed by the trial court and it has erred in coming to the conclusion that there is a road existing on the southern side of the suit ‘A’ schedule property. The finding of the trial court is contrary to the evidence of the parties and the materials available on record. Hence, the judgment and decree passed by the trial court is erroneous and requires to be set aside.

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Accordingly, the appeal is allowed. The judgment and decree dated 31.10.2007 passed in O.S.No.654/2004 on the file of the I Addl. City Civil & Sessions Judge, Bangalore is set aside. The suit filed by the plaintiff is dismissed.

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Sd/JUDGE

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CM List No.: 1 Sl No.: 45

C Manju S/O Channaraya Reddy v. Munivenkataramanappa S/O Munivenkatappa

Case brief

What is this about?

What did the court decide?

C Manju S/O Channaraya Reddy v. Munivenkataramanappa S/O Munivenkatappa

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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