Dismissed

Channappa v. Smt. Champakamalini

Karnataka HC13 Jan 2023RSA/1739/2017

Case brief

AI extract

What is this about?

This appeal challenged a trial court judgment declaring disputed property as part of another and granting permanent injunction. The High Court held no error was committed as the defendant had no absolute right over the passage and opening a door did not obstruct passage usage.

What did the court decide?

The appeal is dismissed; the decree of the lower court upholding the declaration and injunction is maintained.

Channappa Vs Smt. Champakamalini — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.1739/2017 (DEC/INJ)

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BETWEEN

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CHANNAPPA AGED ABOUT 48 YEARS S/O LATE SIDDAPPA R/AT NO.2452, 7^TH CROSS HOSABEEDI, K.G.KOPPAL MYSURU WORKING AS ASSISTANT LIC OF INDIA, AT NO.3587/E, ”ASHIRWAD” OPPOSITE RURAL POLICE STATION HUNSUR-571105

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...APPELLANT

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(BY SRI KRISHNAMURTHY G HASYAGAR, ADVOCATE)

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AND

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1 . SMT. CHAMPAKAMALINI AGED ABOUT 69 YEARS W/O LATE SHIVAPRIYA R.S.

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SRI R S SHRIKANTH AGED ABOUT 42 YEARS S/O LATE SHIVAPRIYA R.S.

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BOTH R1 AND R2 ARE R/AT NO.1258, “SRIPRIYA”, 3^RD CROSS KRISHNAMURTHYPURAM MYSURU-570001

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RAVISHANKAR AGED ABOUT 60 YEARS

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SMT. SRILATHA AGED ABOUT 53 YEARS W/O R RAVISHANKAR

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R3 AND R4 ARE R/AT 11-E, 3^RD BLOCK, “SIRI” SRIRAMPURAM, 2^ND STAGE BEML LAYOUT MYSURU-570001

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SRI RANGANATH AGED ABOUT 71 YEARS R/AT NO.1258/C ”SHARAVANTHI”, 3^RD CROSS KRISHNAMURTHYPURAM MYSURU-570001

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… RESPONDENTS

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 21.02.2017 PASSED IN R.A.NO.419/2016 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU AND ETC.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission. Heard the learned

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counsel appearing for the appellant.

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This appeal is filed challenging the judgment and decree dated 21.02.2017 passed in R.A.No.419/2016 on the file of the VII Additional District Judge, Mysuru.

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The factual matrix of the case of the plaintiffs before the Trial Court is that the suit is filed for the relief of declaration and permanent injunction against the defendants. It is contended that ‘A’ schedule property is allotted in terms of the settlement arrived between the parties in the original suit as per Ex.P1 and ‘B’ schedule property is the part and parcel of ‘A’ schedule property and the plaintiffs are in possession and enjoyment of the suit schedule property and the defendants are causing obstruction in enjoyment of the ‘A’ schedule property. In pursuance of the suit summons, the defendants appeared and filed the written statement contending that the suit is bad for mis-joinder of parties and also contended that the plaintiffs earlier filed the suit in O.S.No.195/1996 against the defendant

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Nos.2 and 3 and further contended that under a registered sale deed dated 16.01.1995, the original shareholder – R.S. Jagannatha sold the property measuring east to west 30 feet and north and south 25 feet in favour of defendant No.3 and put her in possession and enjoyment thereof. Under a registered sale deed dated 13.04.2005, defendant No.3 sold the property measuring east to west 30 feet north to south 30 feet and the passage measuring east to west 30 feet and north to south 25 feet to defendant No.1 and put him in a possession and enjoyment thereof. The predecessors in interest of defendant No.1 were and now defendant No.1 is in uninterrupted possession and enjoyment of the said property as its absolute owner thereof.

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Based on the pleadings of the parties, the Trial Court framed the issues and the plaintiffs in order to substantiate their case, examined plaintiff No.2 as PW1 and one witness as PW2 and got marked the documents at Ex.P1 to P13. On the other hand, defendant No.1 examined as DW1 and got marked the documents at Ex.D1 to 4. The Trial Court after considering both

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the both oral and documentary evidence decreed the suit in coming to the conclusion that ‘B’ schedule property is declared as part and parcel of ‘A’ schedule property and also passed an order restraining defendant No.1 and his agents, servants or anybody acting under him from interfering with the peaceful possession and enjoyment of the suit ‘B’ schedule property. Consequently defendant No.1 is also restrained permanently from interfering with the plaintiffs’ right to open or fix a door in the eastern wall of the suit ‘A’ schedule property.

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Being aggrieved by the judgment and decree of the Trial Court, defendant No.1 filed an appeal in R.A.No.419/2016 wherein defendant No.1 contended that the Trial Court has committed an error in decreeing the suit and restraining defendant No.1 to the extent of 3 x 25 feet passage which is abutting to the ‘A’ schedule property which leads from 3^rd Cross road to the defendant No.1’s property and granting of decree in respect of ‘B’ schedule property is the part and parcel of ‘A’ schedule property affects the right of the defendant/appellant. Hence, it requires interference. The First Appellate Court

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considering the grounds urged in the appeal formulated point that whether the impugned judgment and decree of the Trial Court is opposed to law, facts and circumstances of the case and interference of this Court is necessary. The First Appellate Court on re-appreciation of both oral and documentary evidence and considering the final decree passed in O.S.No.720/1976 comes to the conclusion that Trial Court has not committed any error in decreeing the suit in favour of the plaintiffs and decree is granted in terms of the document at Ex.P1 under which the right was conferred to the plaintiff and hence, causing obstruction to the plaintiffs by the defendant is nothing but an interference with the possession and enjoyment of the ‘A’ schedule property which was allotted to the plaintiffs hence, it does not requires any interference. Hence, this second appeal is filed by defendant No.1.

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The main contention of the learned counsel appearing for the appellant is that there is no dispute with regard to the fact that the property was partitioned in terms of Ex.P1 and also the counsel vehemently contend that the passage

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to the extent of 3 x 25 feet, right was given to R.S.Jagannatha who in turn sold the property on 16.01.1995 and subsequently, the same was also transferred on 13.04.2005 and changed the ownership and ultimately defendant No.1 had purchased the suit schedule property in terms of Ex.D3 and granting the relief of declaration in respect of ‘B’ schedule property will affect the right of the defendants. The counsel also vehemently contend that the Trial Court as well as First Appellate Court have not taken note of the very provisions of Section 13(e), 17, 19, 27 and 32 of the Easements Act and also Section 8 of the Transfer of Property Act and the finding of the Trial Court as well as First Appellate Court is not sustainable in the eye of law in view of the aforesaid provisions.

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The counsel also brought to notice of this Court to the judgment of the High Court of Kerala in R.S.A.No.723/2006 dated 29.06.2007 wherein it is held with regard to the facts of the case whether putting up a gate at the entrance point of plaint ‘B’ schedule way from the public road and causing any obstruction to the usage of the plaint ‘B’ schedule way and

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considered the matter. The counsel also relied upon the judgments reported in AIR 1977 NOC 73, AIR 1932 BOMBAY 574, AIR 1947 PATNA 266, AIR 1971 RAJASTHAN 112 AND 1978(2) KAR LJ 64 and contend that the right of the defendant has been curtailed on account of granting of relief of declaration and restraining the defendant hence, it requires interference.

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Having heard the learned counsel appearing for the appellant and also on perusal of the material on record, it is not in dispute that the plaintiffs have filed a suit for the relief of declaration and permanent injunction and nature of relief sought before the Court is to declare that ‘B’ schedule property is the part and parcel of ‘A’ schedule property which was allotted to the plaintiffs and also the defendants are coming in the way of enjoyment of the ‘A’ schedule property which was allotted to the plaintiffs in opening the door. The Trial Court considered both the oral and documentary evidence particularly in respect of Issue Nos.1 and 2 with regard to whether ‘B’ schedule property i.e., passage is a part and parcel of ‘A’ schedule property and whether the plaintiff is in possession and enjoyment of the suit

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schedule property and while answering these two issues extracted the very document of Ex.P1 i.e., clause 9, 10, 11 in paragraph 23 of the judgment and also taken the answer elicited from the mouth of DW1. DW1 also categorically admitted that the passage to the extent of 3 x 25 feet has to be kept vacant and the same is the ‘B’ schedule property and also in paragraph 22, discussed mentioning of the passage in Ex.D3 and D4 and DW1 also admits that he has to reach his house through that passage only and it is open and also he admits the contents of Ex.P1 and clause 10 and 11 and also admits that ‘B’ schedule property is to be kept open for the purpose of ingress and egress.

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Having taken note of the answer elicited from the mouth of PW1 and documents in particular Ex.P1 and the same is discussed in paragraph 24 and considered both the oral and documentary evidence and also discussed in paragraph 25 with regard to the relief which was sought for declaring that ‘B’ schedule property is also a part of ‘A’ schedule property and considering Issue Nos.3 and 4 also the Trial Court taken note of

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DW1 during the cross-examination admits that he was questioned about opening the door at the eastern side of the house of the plaintiff hence, comes to the conclusion that there is an interference on the part of the defendants and hence, granted the relief of declaration that ‘B’ schedule property is part and parcel of ‘A’ schedule property and an order was passed to restrain defendant No.1 from interfering with the plaintiffs’ right to open a door in the eastern wall of the ‘A’ schedule property. The relief granted is only restraining the defendant No.1 from interfering with the plaintiffs’ right to open a door in the eastern wall of ‘A’ schedule property and not restraining the defendant No.1 in using of the passage to the extent of 3 x 25 feet. The First Appellate Court also on considering both the oral and documentary evidence, formulated the point that whether it requires interference of the First Appellate Court and in paragraph 14 taken note of the decree passed in O.S.No.720/1996 at Ex.P1 and also taken note of the evidence available on record and also discussion made in paragraph 23 of the judgment and also taken note of the fact that the passage is the part and parcel of the ‘A’ schedule property and the same

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has been discussed in paragraph 15 of the judgment and having considered the said material on record confirmed the judgment of the Trial Court.

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The very contention of the learned counsel for the appellant is that the finding given by both the Courts is opposed to provisions of Section 13(e), 17, 19, 22, 27 and 32 of the Easements Act and Section 8 of the Transfer of Property Act and the defendants counsel not disputes the fact that there was a partition among the parties in terms of Ex.P1 and it is also not in dispute that ‘A’ schedule property was allotted in favour of the plaintiffs in terms of Ex.P1 and no doubt, there are transfer of right in respect of one of the party in the original suit earlier i.e.,

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R.S. Jagannatha and he got the right to the extent of 30 x 30 feet but there was a right given to R.S. Jagannatha to use the passage of 3 x 25 feet which is described as schedule ‘B’ property. It is not the case of the defendants that the plaintiffs are causing obstruction to the usage of passage of 3 x 25 feet and also not the case that the plaintiffs have blocked the same. But only contention is that opening of the door on the eastern

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side is causing obstruction and same is nothing but coming in the way of usage of right given to the plaintiffs in enjoyment of ‘A’ schedule property which was allotted in terms of Ex.P1 and the defendants contended based on the document at Ex.D1, the right was given to the defendants. No doubt, sale deeds are executed in terms of Ex.D1 to D3 and in terms of Ex.D3, the defendants had purchased the property and he had purchased the property which was allotted to the original vendor, but no right is conferred to the defendant with regard to the passage to the extent of 3 x 25 feet as the absolute owner and the same cannot be done also when there is no absolute right to the vendor. I have already pointed out that the defendants not contended that the passage right was given to the extent of 3 x 25 feet is blocked but only contend that the defendants are objecting for opening of door to the property of the plaintiffs which was allotted to the plaintiffs in terms of Ex.P1 and taking into note of this fact into consideration, both the Courts considered both the oral and documentary evidence placed on record and also the admission elicited from the mouth of DW1 and granted the relief in favour of the plaintiffs. When such

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being the case, when there is no any causing of obstruction to the right given to the defendants to use the passage of 3 x 25 feet, I do not find any error committed by both the Courts. No doubt, the counsel for the appellant contend that the decree granted in favour of the plaintiffs is opposed to the provisions of Easements Act and I do not find any such ground that the decree granted in favour of the plaintiffs is opposed to the provisions of Easements Act when the right was given to the defendant’s vendor in terms of Ex.P1 and the same has not been curtailed hence, Section 8 of the Transfer of Property Act also does not come in the way of the defendants and transfer is only with regard to the right of usage of the passage given to the defendant’s vendor and same is conferred to the subsequent purchaser. Hence, I do not find any merit in the appeal to frame any substantive question of law admitting the appeal invoking Section 100 of CPC.

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In view of the discussions made above, I pass the following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the main appeal, I.A. if any,

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does not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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Channappa v. Smt. Champakamalini

Case brief

What is this about?

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Channappa v. Smt. Champakamalini

Case brief

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