Partly allowed

Sri M S Devaiah v. Sri M S Bhuvaneshwara

Karnataka HC3 Feb 2023RSA/2215/2018

Case brief

AI extract

What is this about?

In a regular second appeal against a judgment granting a right of way over a 16-foot road, the High Court of Karnataka, relying on a previous connected decision, partially allowed the appeal and modified the decree. The court held that due to lack of evidence for the 16-foot width and admissions by the appellant, the authorized width is reduced to 8-10 feet.

What did the court decide?

Modified the width of the road to 8 to 10 feet instead of the 16 feet claimed by the plaintiff in the trial court.

Sri M S Devaiah Vs Sri M S Bhuvaneshwara — Partition | Karnataka HC (2023)

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1 - RSA No. 2215 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 2215 OF 2018 (DEC/INJ)

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BETWEEN:

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SRI M.S.DEVAIAH AGED ABOUT 63 YEARS S/O. LATE M.M.SUBBAIAH HOSKERE VILLAGE, MADIKERI TALUK, KODAGU DISTRICT-571 201.

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…APPELLANT

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(BY SRI. RAVIKUMAR M.C., ADVOCATE)

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AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SRI M.S. BHUVANESHWARA AGED ABOUT 55 YEARS S/O. LATE M.M.SUBBAIAIH S. KATTEMADU VILLAGE MADIKERI TALUK, KODAGU DISTRICT-571 201.

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…RESPONDENT

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(RESPONDENT IS SERVED & UNREPRESENTED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.07.2018 PASSED IN R.A.NO.41/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM KODAGU, MADIKERI, DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED 10.04.2014 PASSED IN O.S.NO.94/2011 ON THE FILE OF THE ADDL. CIVIL JUDGE, MADIKERI.

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RSA No. 2215 of 2018

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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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Heard the learned counsel for the appellant-defendant.

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The respondent-plaintiff, though served with notice, neither engaged any counsel nor appeared before the Court.

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The factual matrix of the case of the plaintiff before the Trial Court is that the subject matter of the suit is 140 feet length and 16 feet width road running in the property bearing Sy.No.108/9 of Hoskeri Village of Madikeri Taluk. The counterclaim schedule property measuring 6 acres in Sy.No.108/9 of Hoskeri Village. The subject matter of the suit and counterclaim is common property. It is the case of the plaintiff that the defendant is his brother and having coffee estate at Hoskeri Village. Their father named M.M. Subbaiah and their mother Muddavva and their brothers namely Vasaiah, Monnappa, Somanna had partitioned their family properties under registered partition deed dated 30.03.1968. In the said partition, Sy.No.108/5 measuring 1.50 acres, Sy.No.124/12 measuring 3 acres, Sy.No.108/6 measuring 2.26 acres, Sy.No.108/3 measuring 0.74 acre and Sy.No.14/3 measuring 2 acres, allotted to the share of plaintiff. In the same manner,

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RSA No. 2215 of 2018

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Sy.No.108/5 measuring 1.50 acres, Sy.No.108/3 measuring 6.18 acres and Sy.No.14/3 measuring 2.50 acres allotted to the share of defendant. During the mutation proceedings, the survey numbers were sub-divided. The plaintiff built a house in the share allotted to him. There is 16 feet wide road leading to the properties bearing Sy.Nos.108/10 and 108/11 belongs to him, which leads from Billa Kathi Road to house property of plaintiff. The rough sketch annexed to the plaint shows the existence of suit schedule road. The plaintiff has been using the said road since from last 30 years and except this road; there is no alternative access to his properties. Now, the plaintiff and defendant are not in talking terms, the defendant with malafide intention on 19.06.2011 tried to block the road by way of digging trenches. When he questioned, the defendant scolded in filthy language. Hence, he filed the suit.

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The defendant also filed the written statement contending that he is in lawful possession and enjoyment of the counter-claim schedule property as on the date of filing of counter-claim. He also claims that the plaintiff started interfering with his counter-claim property. Hence, the Trial

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RSA No. 2215 of 2018

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Court has framed the issues and permitted the parties to lead

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evidence.

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Accordingly, in order prove their case, the plaintiff examined himself as P.W.1 and also examined two witnesses as P.Ws.2 and 3 and got marked the documents as Exs.P1 to P5. On the other hand, the defendant examined himself as D.W.1 and one witness as D.W.2 and got marked the documents as Exs.D1 to D22.

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The Trial Court, having considered both oral and documentary evidence placed on record, decreed the suit and granted right to the plaintiff to access his properties through the road which is claimed by him. Being aggrieved by the said judgment and decree, the defendant has filed the appeal in R.A.No.41/2014. The First Appellate Court, considering the grounds urged in the appeal, formulated the points; whether the plaintiff established that he is using the schedule road for more than 30 years to access his land and whether the judgment and decree of the Trial Court requires interference of this Court. Having formulated the points and considering the material available on record, the First Appellate Court comes to the conclusion that the plaintiff is using the road from the last

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RSA No. 2215 of 2018

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30 years and confirmed the judgment and decree of the Trial Court.

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Learned counsel for the appellant-defendant in his argument in this appeal would vehemently contend that no dispute with regard to the right is given in respect of the road to access the respective properties. The learned counsel would vehemently contend that one more suit is filed by one Mandira Monnappa in O.S.No.95/2002, wherein, the Trial Court after considering the material on record decreed the suit in favour of the plaintiff that the right of way is declared in favour of the plaintiff and he is entitled to use the road unobstructed through the suit schedule property and the counter claim was dismissed. Being aggrieved by the judgment and decree passed in O.S.No.95/2002, an appeal was filed by the defendant in R.A.No.8/2007, wherein, modification was made to remove the obstruction caused due to spreading of the branches of the Coffee Plants over the suit schedule road within four months and the counter claim was confirmed. Being aggrieved by the said judgment, an appeal in R.S.A.No.2122/2022 is filed, wherein, this Court in R.S.A.No.2122/2022, while disposing of the matter made an observation in paragraph Nos.9 and 10,

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6 - RSA No. 2215 of 2018

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that both the Courts have concurrently held that the plaintiff is entitled to use the suit road and has easementary right by way of necessity. Referring to the registered partition deed, both the Courts have held that the plaintiff has succeeded in proving that he has been using the suit road since the time of his ancestor. It is also observed that the width of the road, as held by both the Courts, is found to be approximately 8 to 10 feet. While the Trial Court proceeded to direct defendant No.1 to remove the coffee plants, the Appellate Court has partially modified the decree by directing defendant No.1 only to cut branches that have spread over the suit road and thereby causing obstruction. Both the Courts have recorded a categorical finding that the plaintiff’s allegation that defendant No.1 has highhandedly planted the coffee plants on the suit road is not substantiated. The findings recorded by the Appellate Court is based on the legal evidence available on record and directed, it is incumbent on the part of the defendants to maintain the suit road free from any obstructions. Merely because the branches of coffee plants frequently encroach over the suit road, then that itself will not create right in favour of the plaintiff to seek the relief of mandatory injunction to fell the coffee plants on either side of

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7 - RSA No. 2215 of 2018

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the suit road. The defendant has every right to extend his coffee plantation till the edge of the road, but it is equally incumbent on defendant No.1 to see that the branches of coffee plants does not extend over the suit road and thereby create unnecessary obstructions in the free use of the suit road. The findings and observations made by the Appellate Court are found to be legal and do not find any infirmity or illegality in the findings and conclusions recorded by the Appellate Court.

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The learned counsel referring to this order would vehemently contend that it can be restricted to 8 to 10 feet and not granting of relief to the extent of 16 feet. The learned counsel also brought to the notice of this Court that the admission given by the plaintiff in the cross-examination itself that no mentioning of 18 feet road in the partition deed and also he categorically admits that there is no any mentioning of width of the road. Hence, it requires modification in view of the decision already taken in R.S.A.No.2122/2012.

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Having heard the respective counsel and on perusal of the material available on record, no doubt, the Trial Court granted decree in respect of 16 feet road as claimed by the plaintiff and the First Appellate Court also confirmed the same.

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RSA No. 2215 of 2018

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But the answer elicited from the mouth of P.W.1, is very clear that there is no mentioning of the width of the road in the partition deed and also he categorically admits that he cannot tell the width of the road. When such being the case, when the right is given to access the respective properties by using of the road and the existence of road is also not in dispute. The dispute is only with regard to what is the measurement of the said road. There is no evidence with regard to 16 feet width road was given to the plaintiff as claimed by the plaintiff in the suit and also he categorically admits that the measurement is not mentioned in the Partition Deed and also no material to comes to a conclusion that there was a 16 feet road. When the road is in existence, the Trial Court and the First Appellate Court rightly came to the conclusion that the defendant cannot cause any obstruction to the right which was given to the parties in the said partition.

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This Court already in R.S.A.No.2122/2012 in paragraph No.9 made an observation with regard to the width of the road is found to be approximately 8 to 10 feet as held by both the Courts in other connected suit and also in the appeal taken note of the same and directed the parties not to cause

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9 - RSA No. 2215 of 2018

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any obstruction to reach their properties. When such observation is made and when there is no any clear evidence before the Court to the extent of 16 feet as claimed by the plaintiff and this fact clearly discloses that when there is a road, which is in existence and the width of the road is 8 to 10 feet as observed by this Court in other connected appeal, it is appropriate to modify the judgment and decree of the Trial Court and also the First Appellate Court giving right in favour of the plaintiff to the extent of 8 to 10 feet i.e., width of the road instead of 16 feet as claimed by the plaintiff. Since there is an admission on the part of the plaintiff also in the crossexamination that there is no any mention of 18 feet road in the Partition Deed as well as no categorical dimension is mentioned with regard to the road. Hence, the appeal is partly allowed. The judgment and decree of the Trial Court requires to be modified.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed-in-part.

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10 -

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RSA No. 2215 of 2018

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(ii) The width of the road is modified to the extent of 8 to 10 feet as observed by this Court in R.S.A.No.2122/2022 instead of 16 feet as claimed by the plaintiff.

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In view of dismissal of the appeal, I.As, if any do not

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survive for consideration, the same stand disposed of.

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Sd/JUDGE

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ST/cp* List No.: 1 Sl No.: 39

Sri M S Devaiah v. Sri M S Bhuvaneshwara

Case brief

What is this about?

What did the court decide?

Sri M S Devaiah v. Sri M S Bhuvaneshwara

Case brief

What is this about?

What did the court decide?

What the court decided

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