Dismissed

Maheshwarappa v. v M Jayappa

Karnataka HC9 Nov 2023RSA/1034/2016

Case brief

AI extract

What is this about?

This regular second appeal challenges the lower courts' decree granting the plaintiff an easementary right to access their agricultural land via a road between plaintiff and defendant properties. The High Court found no merit in the appeal and dismissed it, upholding the finding that the plaintiff had no alternate access.

What did the court decide?

The second appeal and pending applications were dismissed with no order as to costs.

Maheshwarappa Vs v M Jayappa — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:40202 RSA No. 1034 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.1034 OF 2016 (DEC/INJ)

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BETWEEN:

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1. MAHESHWARAPPA

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S/O M.G.NINGAPPA

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AGED ABOUT 49 YEARS

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R/O MITTALAKATTE VILLAGE

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HARIHARA TALUK PIN CODE - 577601

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SHIVALEELA

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SINCE DECEASED BY LRS

2. MALATHESH

S/O MAHESHWARAPPA

AGED ABOUT 28 YEARS

Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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R/O MITTALAKATTE VILLAGE

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HARIHARA TALUK

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PIN CODE - 577601

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AKASH

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S/O MAHESHWARAPPA

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AGED ABOUT 24 YEARS R/O MITTALAKATTE VILLAGE HARIHARA TALUK PIN CODE -577601

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…APPELLANTS

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(BY SRI.PHANIRAJ KASHYAP, ADVOCATE)

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2 - NC: 2023:KHC:40202 RSA No. 1034 of 2016

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AND:

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V M JAYAPPA S/O MAHADEVAPPA AGED ABOUT 55 YEARS AGRICULTURIST R/O SHAMANURU VILLAGE DAVANAGERE TALUK PIN CODE - 577002

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…RESPONDENT

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(BY SRI. SABARISH GANDHI S, ADVOCATE FOR C/RESPONDENT)

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THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE

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JUDGMENT AND DECREE DATED 01.03.2016 PASSED IN R.A.NO.28/2014 ON THE FILE OF SENIOR CIVIL JUDGE, HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.03.2014 PASSED IN O.S.NO.9/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE & J.M.F.C., HARIHAR AND ETC.

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

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3 - NC: 2023:KHC:40202 RSA No. 1034 of 2016

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JUDGMENT

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The captioned second appeal is filed by the defendants assailing the concurrent findings of the both Courts, wherein both Courts have granted the relief of declaration that the plaintiff has got easementary right over the suit road situated between the plaintiff and the defendants property. The said concurrent findings are under challenge by the defendants.

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For the sake of brevity, the parties are

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referred as they are ranked before the Trial Court.

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Brief facts leading to the case are as under;

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The plaintiff has instituted a suit claiming that he

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is the owner in possession and enjoyment of the agricultural land bearing Sy. No.46/P and Sy. No.46/6P totally measuring 4 acres 20 guntas situated at Mittalakatte Village, Harihar Taluk. The plaintiff claims that to the eastern side of his property, there is 15 feet width

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4 - NC: 2023:KHC:40202 RSA No. 1034 of 2016

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road, which runs north to south and the same is shown as CD in the rough sketch and therefore, claimed that it is only the road available to the plaintiff to carry agricultural equipments and also agricultural produce through bullock carts, tractors and other vehicles. It is the specific case of the plaintiff that his predecessor in interest were also using this suit road and the said fact is within the knowledge of the defendants. The present suit is filed alleging that the defendants are obstructing the plaintiff from using the suit road and therefore, the present suit is filed.

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Defendant Nos.1 and 2 on receipt of summons tendered appearance and filed written statement. Defendants have not disputed the existence of CD road. The defendants claimed that this road is a private road and the same is utilized only by the defendants and other co-owners of Sy. No.47. The defendants specifically contended that the plaintiff has an alternate road, which runs north to south, measures 16 1/2 feet in width.

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5 - NC: 2023:KHC:40202 RSA No. 1034 of 2016

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The plaintiff and defendants to substantiate

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their respective claims have let in oral and documentary evidence.

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The plaintiff and defendants to counter each other claims have also produced the photographs. The Trial Court having examined the pleadings and having assessed the oral and documentary evidence answered issue No.1 partly in affirmative and issue Nos.2 and 3 in the affirmative and held that the plaintiff has succeeded in proving the existence of the suit road, which connects to the southern main road. While answering issue No.3 in the affirmative, the Trial Court held that the plaintiff has succeeded in substantiating his easementary right over the suit road. Having held that the defendants are interfering with the plaintiff's right to use the suit road, the suit of the plaintiff is decreed by the Trial Court.

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The defendants feeling aggrieved by the judgment and decree of the Trial Court preferred an

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6 - NC: 2023:KHC:40202 RSA No. 1034 of 2016

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appeal in R.A.No.28/2014. The Appellate Court has independently assessed the entire materials on record. The Appellate Court, while concurring with the findings recorded by the Trial Court also held that the defendants having admitted the existence of the suit road have failed to substantiate that the plaintiff has an alternate road on the western side of the plaintiff's property. The Appellate Court has also held that this suit road is situated between the plaintiff and defendants property. Referring to the evidence on record, the Appellate Court has also held that the plaintiff has succeeded in substantiating that the plaintiff's vendor was using this suit road and after purchase made by the plaintiff, he has been using this suit road to carry the agricultural equipments and also agricultural produce.

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Heard learned counsel appearing for the defendants and perused the judgment rendered by both the Courts.

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NC: 2023:KHC:40202 RSA No. 1034 of 2016

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In order to prove their case, both plaintiff and

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defendants have produced the photographs relating to the existence of the suit road. The photographs produced by the plaintiff are marked as Exs.P.5 to 9, while the photographs produced by the defendants are also marked as Exs.D.2 and D.4. These photographs relate to the suit schedule road. On examining these photographs, it is clearly evident that the said road is located between the plaintiff's and defendants property. Though the defendants admit the existence of suit road, the present suit is strongly resisted on the ground that the plaintiff has an alternate road on the western side of the plaintiff's property. Both Courts on meticulous examination of the materials available on record have come to the conclusion that the defendants have failed to prove the existence of alternate road on the western side of the plaintiff's property as alleged in the written statement. Referring to the materials on record, both Courts have come to the conclusion that except the suit road, the plaintiff has no access to reach the southern main road. The photographs

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8 - NC: 2023:KHC:40202 RSA No. 1034 of 2016

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produced by the plaintiff and defendants clearly depicts the existence of the road and it further substantiates the plaintiff's claim that this road is only mode of access to the plaintiff to carry all his agricultural operations. The concurrent findings recorded by both the Courts in regard to existence of road and the plaintiff's right to use this road does not suffer from any infirmities. This Court is also of the view that if the relief of easementary right is granted to the plaintiff, no serious prejudice would cause to the defendants as they are already using this suit road. The only grievance of the defendants is that the defendants along with owners of Sy. No.47 are exclusively entitled to use this suit road and not by the plaintiff. Therefore, even on this count, no indulgence is warranted at the hands of this Court.

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No substantial question of law arises for

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consideration in this appeal.

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9 - NC: 2023:KHC:40202 RSA No. 1034 of 2016

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The second appeal is devoid of merits and

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accordingly, stands dismissed.

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Pending applications, if any, are also dismissed.

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Sd/- JUDGE

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NBM

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List No.: 1 Sl No.: 6

Maheshwarappa v. v M Jayappa

Case brief

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Maheshwarappa v. v M Jayappa

Case brief

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