In this second appeal, the High Court of Karnataka rejected the appellants' challenge to the final decree confirming plaintiff's easement over pathway and well against defendants' obstruction, dismissing the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1404 OF 2019
BETWEEN:
[By Ms. ANNU BHARADWAJ, ADVOCATE]
AND:
D/O. MAROOR VENKATARAMANA PAI,
AGED ABOUT 80 YEARS, KADRI HILL ROAD, D.NO.3-3-104004, MANGALURU-575 004.
REPRESENTED BY GPA HOLDER
MR. M. MANJUNATH PAI, S/O. LATE M.V.PAI,
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AGED ABOUT 70 YEARS, D.NO.3-3-104, KADRIKAMBLA ROAD, MANGALURU-575 004.
SINCE DEAD R1 IS REPRESENTED BY HER LEGAL REPRESENTATIVE
R1(1) SRI. SUNIL PADIYAR, S/O. LATE KAMALA PADIYAR ADULT, R/AT. 170/28, 1ST FLOOR, 4TH MAIN, 14TH CROSS, VYALIKAVAL, BENGALURU-560 003. ... RESPONDENTS
[BY SRI. G.RAVISHANKAR SHASTRI, ADVOCATE FOR R1(1)]
THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:16.04.2019 PASSED IN R.A.NO.126/2012 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, MANGALURU, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:22.11.2012 PASSED IN O.S.No.664/1995 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND JMFC., MANGALURU, D.K.
THIS R.S.A., COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
Though this matter is listed for
today, with the consent of both the learned counsel it is taken up for final disposal.
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appellants/defendants and the learned counsel appearing for respondent No.1(1)/plaintiff.
the Trial Court is that her vendors had granted the easement right to draw water from the well and also a right to approach road in order to take the water from the well and exclusive possession and enjoyment of ‘A’ schedule property of the plaint and the defendants are causing interference in respect of availing the water from the well and also causing obstructions to the pathway. Immediately within three days of filing the suit, the defendants highhandedly and illegally constructed a compound wall blocking the pathway leading to the well and there is an obstruction to get the benefit as mentioned in the Sale Deeds. Hence, sought for the relief of mandatory injunction to remove the obstruction.
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had appeared and filed the written statement contending that the first defendant is not the owner or occupier of the property in question. The second defendant is the brother-in-law of first defendant, who is the Deputy General Manager of Canara Bank at Bengaluru. He has not interfered with the alleged rights of the plaintiff. The wife of the first defendant is the owner of the site immediately to the north of the plaintiff’s property. The second defendant is the owner of the site on the west of the plaintiff’s property. The plaintiff is a Mulagenidar of ‘A’ schedule property and hence she cannot assert easement right over the property of second defendant who is the owner of property purchased by him as per Sale Deed dated 18.09.1993. However, the defendants admit the existence of the well but deny the right of the plaintiff to draw water from the well. The second defendant does not admit the alleged easement right of the plaintiff over the well and pathway and denied the contention of the plaintiff.
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the documents as Exs.P1 to P10. On the other hand, the second defendant examined himself as D.W.1 and got marked the documents as Exs.D1 to D5(a).
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Court. Hence, the present second appeal is filed before this Court.
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appreciated the material available on record with proper perspective. When there was an alternative road available to access the well, the First Appellate Court ought not to have granted the relief and there are substantive questions of law to frame the same and to consider the matter. Hence, both the Courts have committed an error.
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wall and no objection was filed to the Commissioner’s report. Now cannot contend that the Commissioner report is an ex-parte report. Both the Courts have considered the material available on record and not given any perverse finding. Only in a concurrent finding if both the Courts have not considered the material available on record and a perverse finding is given then the Court can exercise the jurisdiction invoking Section 100 of CPC. Hence, no grounds are made out to invoke Section 100 of CPC.
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that when the right is given under the Sale Deed to access the well and use the pathway and the fact that the defendants have constructed a compound in causing obstruction is also noticed by the Court Commissioner. Admittedly, the defendants have not filed any objections to the Commissioner report and now cannot contend that the report is an ex-parte report and both the Trial Court as well as the First Appellate Court taking into note of both oral and documentary evidence as well as the report of the Court Commissioner came to the conclusion that defendant No.2, particularly causing obstruction to access the well and using the pathway. The Clause No.7 is very clear that the pathway is at the minimal distance. When such being the material available on record when the right is given under the documents in terms of Exs.P5 and P6, the causing of obstruction by the defendants is nothing but preventing the plaintiff in availing the water from the well and approaching the well in a minimum distance. When such being the material available on record and when both the Courts have applied their mind and given the finding based on both oral and documentary evidence as well as the Commissioner report, the very finding cannot be termed as perverse in nature. The contention of the learned counsel
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appearing for the appellants is that the ex-parte report of the Commissioner was relied upon by the Trial Court as well as the First Appellate Court cannot be accepted. The First Appellate Court also on re-appreciation of the evidence available on record, particularly the issues and the additional issues, which have been framed by the Trial Court and answered the same as affirmative. The First Appellate Court on the basis of the grounds urged in the appeal memo, formulated the point Nos.1 and 2 and answered the same as negative and not find any error committed by the Trial Court in coming to such a conclusion that the obstruction was caused to the plaintiff’s right, which has been confirmed as per Exs.P5 and P6.
not dispute the fact that the right was confirmed as per Exs.P5 and P6 by the vendors of the plaintiff and the document also reveals the same and rightly pointed out by the learned counsel appearing for the respondent that it is not a right of prescription and right was given under the documents-Exs.P5 and P6. When such being the material available on record, I do not find any grounds to frame any substantial questions of law and the
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material on record only appreciated by the Trial Court that too particularly the documentary evidence available on recordExs.P5 and P6. Hence, no grounds in the second appeal to frame substantial questions of law and admit the appeal.
following:
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.A.No.1/2020 for stay
does not survive for consideration, the same stands disposed of.
Sd/JUDGE
cp*
2 issues framed by the court
Whether there are substantial questions of law to frame against the concurrent findings of lower courts regarding easement rights and obstruction.
Whether the Commissioner's report is ex-parte and relied upon erroneously by lower courts.
1 provisions across 1 enactments
Mr. Hariram Shenoy
Mr. Umesh Shenoy
Sunil Padiyar
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
