Disposed

Sri. Shivalingappa v. Sri. Thimmappa

Karnataka HC27 Oct 2023RSA/1222/2016

Case brief

AI extract

What is this about?

This second appeal against a dismissal of a suit for declaration of easementary right and mandatory injunction was dismissed. The High Court upheld the findings that plaintiffs failed to prove the existence of the suit road, facts contradicted by cross-examination admissions showing defendants owned the property, and availability of an alternate access route.

What did the court decide?

Maintained concurrent findings of courts below; All pending applications disposed of.

Sri. Shivalingappa Vs Sri. Thimmappa — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:38103 RSA No. 1222 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1222 OF 2016 (DEC/INJ)

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BETWEEN:

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SRI. SHIVALINGAPPA, SON OF LATE KALLAPPA, AGED ABOUT 73 YEARS, RESIDING AT ARALIKATTE VILLAGE, SANTHEBENNUR HOBLI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 552.

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SRI. BASAVANTHAPPA, SON OF LATE KALLAPPA, AGED ABOUT 71 YEARS, RESIDING AT ARALIKATTE VILLAGE, SANTHEBENNUR HOBLI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 552.

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Digitally signed by REKHA ANKAIAH Location: High Court of Karnataka

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SRI. NANJUNDAPPA, SON OF LATE KALLAPPA, AGED AOBUT 68 YEARS, RESIDING AT ARALIKATTE VILLAGE, SANTHEBENNUR HOBLI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 552.

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…APPELLANTS

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(BY SRI. SIDDAMALLAPPA P.M, ADVOCATE)

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2 - NC: 2023:KHC:38103 RSA No. 1222 of 2016

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AND:

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SRI. THIMMAPPA, SON OF LATE THIRUMALLAPPA, AGED ABOUT 70 YEARS, RESIDING AT ARALIKATTE VILLAGE, SANTHEBENNUR HOBLI, CHANNAGIRI TALUK, DAVANGERE DISTRICT - 577 552.

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SRI. SHANKARAPPA, SON OF LATE THIRUMALLAPPA, AGED ABOUT 68 YEARS, RESIDING AT ARALIKATTE VILLAGE, SANTHEBENNUR HOBLI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 552.

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SRI. HANUMANTHAPPA, SON OF LATE THIRUMALLAPPA, AGED ABOUT 67 YEARS, RESIDING AT ARALIKATTE VILLAGE, SANTHEBENNUR HOBLI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 552.

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…RESPONDENTS

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(BY SMT. SARITHA KULKARNI, ADVOCATE FOR R1 TO R3)

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THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 26.04.2016 PASSED IN R.A.NO.64/2014 ON THE FILE OF PRL. SR. CIVIL JUDGE & JMFC,, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.09.2014 PASSED IN O.S.NO.65/2009 ON THE FILE THE PRL.CIVIL JUDGE & JMFC, CHANNAGIRI.

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3 - NC: 2023:KHC:38103 RSA No. 1222 of 2016

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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 captioned second appeal is filed by unsuccessful plaintiffs assailing the concurrent judgments of the Courts below, wherein the plaintiff's suit seeking relief of declaration of easementary right in the suit road and consequently relief of mandatory injunction is rejected by both the Courts.

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For the sake of brevity, the rank of the parties are

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referred as they are ranked before the Trial Court.

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Before I proceed further, it would be useful for this

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Court to cull out a sketch furnished by the plaintiffs along with the plaint, which was marked as Ex.P.5, which is as under:

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4 - NC: 2023:KHC:38103 RSA No. 1222 of 2016

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NORTH

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A gÀ¸ÉÛ B
W Property of Defendants E
E Gurumurthy Property A
S 28’ S
T T
D C
- - - - - - - - - - - - - PÁ®ÄzÁj - - - - - - - - - - - - - - - - -
Kana of Plaintiff
SOUTH

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Plaintiffs contend that to the west of defendant's

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property there is a 28 feet road and the plaintiffs have been using the said road to have access to their property situated on the south of defendant's property. The plaintiffs are alleging that the defendants, who have no semblance of right over the ABCD portion, have high handedly blocked the suit road by erecting a temporary cattle shed and this compelled the plaintiffs herein to knock the doors of the Court seeking relief of easementary rights and consequently relief of mandatory injunction.

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5 - NC: 2023:KHC:38103 RSA No. 1222 of 2016

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Defendants, on receipt of summons, tendered

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appearance and filed written statement and stoutly denied the entire averments made in the plaint.

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Plaintiffs and defendants to substantiate their respective claims, have let in oral and documentary evidence.

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The Trial Court, having meticulously examined the pleadings of the parties as well as oral and documentary evidence and more particularly several admissions elicited by the defendants in the crossexamination of plaintiffs examined as P.W.1 and witnesses, has dismissed the suit on two grounds. The Trial Court has recorded a categorical finding that the existence of the alleged suit path is not substantiated by the plaintiffs. Secondly, the Court held that the crossexamination of plaintiffs and witnesses clearly indicates that the plaintiffs and other adjoining owners have an alternate road situated on the southern side. On these grounds, the Trial Court proceeded to dismiss the suit.

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6 - NC: 2023:KHC:38103 RSA No. 1222 of 2016

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Plaintiffs, feeling aggrieved by the judgment and decree of the Trial Court, preferred an appeal before the appellate Court. The Appellate Court, on re-appreciation of evidence. Independently has gone a step further. The Appellate Court, having taken cognizance of the evidence of plaintiff, who has been examined as P.W.1, held that P.W.1 has admitted in unequivocal terms that the suit schedule property is part and parcel of property purchased by defendant Nos.1 and 3. The plaintiff has further admitted that defendants are in possession from the date of purchase. The Appellate Court has also taken note of the fact that the defendants has constructed a cattle shed on the suit property, which was burnt and a criminal case is registered. Referring to these significant details, the Appellate Court was not inclined to interfere with the judgment and decree of the Trial Court. On these set of reasonings, the Appellate Court dismissed the appeal.

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9. These concurrent findings are under challenge

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at the instance of unsuccessful plaintiffs.

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7 - NC: 2023:KHC:38103 RSA No. 1222 of 2016

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Heard learned counsel appearing for the plaintiffs

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and perused the concurrent findings rendered by the Courts below.

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Though learned counsel appearing for plaintiffs has vehemently argued and contended that the defendants do not own the suit ABCD property and that the suit property is in fact owned by the Grama Panchayath, these contentions are raised for the first time before this Court. Given the fact that the plaintiffs are asserting easementary rights by way of prescription and having regard to several admissions elicited during the trial, wherein the plaintiffs have admitted the ownership of defendants over the suit schedule property, this Court is of the view that the reasons and conclusions recorded by the Trial Court and Appellate Court are based on rebuttal evidence let in by the defendants. I do not find any infirmities in the judgments under challenge. The Trial Court has, in fact, exhaustively dealt with the oral evidence on record. Several categorical admissions elicited

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8 - NC: 2023:KHC:38103 RSA No. 1222 of 2016

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in the cross-examination of plaintiffs and witnesses are culled out in the judgment of the Trial Court. These admissions are found to be fatal and good ground to non suit the plaintiffs based only on the admissions elicited in the cross-examinations. Two significant details emerge from the judgments recorded by the Courts below. Firstly, the plaintiffs have failed to substantiate the existence of suit road as alleged in the plaint. It is borne out from the record that the defendants had a cattle shed to the west of their residential house which was set on fire and a criminal case is pending in that regard. Therefore, the existence of the suit road is not substantiated by the plaintiffs. The second significant detail which needs to be taken note of is that the evidence on record clearly reveals that the plaintiff has an alternate road to have access to their property. Therefore, I am of the view that the judgments rendered by both the Courts are in accordance with law and do not warrant any interference.

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NC: 2023:KHC:38103 RSA No. 1222 of 2016

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Therefore, no substantial question of law would arise for consideration. Accordingly, the regular second appeal

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is dismissed .

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In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stands disposed of.

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Sd/JUDGE

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HDK List No.: 1 Sl No.: 6 CT: BHK

Sri. Shivalingappa v. Sri. Thimmappa

Case brief

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Sri. Shivalingappa v. Sri. Thimmappa

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