Dismissed

Smt Jayalakshmamma v. Sri Paramesh

Karnataka HC31 Oct 2023RSA/392/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the second appeal filed by the defendant challenging concurrent lower court judgments that declared the plaintiff possessed an easementary right over a specific passage and granted permanent injunction to restrain the defendant from interfering.

What did the court decide?

The appeal is dismissed for want of merits and no substantial question of law arises.

Smt Jayalakshmamma Vs Sri Paramesh — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:39033 RSA No. 392 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 31^ST 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. 392 OF 2016 (DEC/INJ)

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BETWEEN:

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SMT JAYALAKSHMAMMA W/O LATE VENKATESH AGED ABOUT 59 YEARS, R/AT HOUSE NO 2557, 3^RD CROSS, KG KOPPAL, NEW KANTHARAJ URS ROAD, CHAMARAJA MOHALLA, MYSURU - 570002

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…APPELLANT

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(BY SRI. V N MADHAVA REDDY, ADVOCATE)

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AND:

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Digitally SRI PARAMESH signed by S/O DHARMALINGACHAR ALBHAGYA AGED ABOUT 42 YEARS Location: R/AT HOUSE NO 2557, HIGH COURT OF 3^RD CROSS, K G KOPPAL KARNATAKA NEW KANTHARAJ URS ROAD, CHAMARAJA MOHALLA, MYSURU - 570002

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…RESPONDENT

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(BY SRI.KRISHNAMURTHY.G.HASYAGAR, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 02.07.2015 PASSED IN RA NO.151/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING

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2 - NC: 2023:KHC:39033 RSA No. 392 of 2016

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THE JUDGMENT AND DECREE DATED 04.06.2012 PASSED IN OS NO.1129/2007 ON THE FILE OF THE V ADDL. FIRST CIVIL JUDGE, MYSORE.

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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 the unsuccessful defendant assailing the concurrent judgments of the Courts below wherein plaintiff's suit seeking relief of declaration that he has got easementary right over ‘B’ schedule property and for consequential relief of permanent injunction restraining the defendant from interfering with or encroaching upon or blocking schedule ‘B’ property is decreed by both the Courts. These concurrent judgments are challenged by the defendant.

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For the sake of brevity, the parties are referred

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to as per their rank before the Trial Court.

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The facts leading to the case are as under:

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The plaintiff claims to be the owner of property

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bearing No.2557. The plaintiff's specific case is that towards Eastern side of his property, there is a common

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3 - NC: 2023:KHC:39033 RSA No. 392 of 2016

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passage. The plaintiff further contends that except plaintiff's ancestors, the other brothers of Kodilingachari have sold different portion to different person of their community people. The plaintiff alleges that in 1967-68, one Puttasomachar purchased Eastern portion of the present property bearing Door No.2557 and after purchase, closed the existing eastern entrance of the entire property and thereafter left 2½ feet x 14 feet open passage to enable the owners to have access in the same property on the southwestern side. The plaintiff therefore claimed that since the time of his ancestors, they are using this suit passage for ingress and egress. The plaintiff is asserting that he has got easementary right by way of prescription and therefore alleges that the plaintiff's easementary right is well within the knowledge of the defendant. The plaintiff further alleged that defendant's house is situated towards East of plaint schedule ‘B’ property and defendant's husband through court sale has purchased the said residential house.

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NC: 2023:KHC:39033 RSA No. 392 of 2016

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Alleging that defendant is trying to encroach over schedule ‘B’ property, the present suit is filed.

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On receipt of summons, the defendant tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendant disputed the plaintiff's right over the suit passage and contended that she has already filed an injunction suit against the plaintiff and there is interim injunction operating against the plaintiff.

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The plaintiff and defendant to substantiate their respective claims have let in oral and documentary evidence. The Trial Court having examined the title documents and evidence let in by the plaintiff answered issue Nos.1 to 5 in the affirmative. While answering issue No.1 in the affirmative, Trial Court held that plaintiff by placing on record the registered sale deeds vide Exs.P-17, P-18 and P-19, has succeeded in substantiating his claim in regard to existence of passage. The Trial Court also took cognizance of evidence of PW.2 who has specifically

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5 - NC: 2023:KHC:39033 RSA No. 392 of 2016

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deposed in regard to existence of passage measuring 2½ feet x 14 feet. The Trial Court taking note of admission elicited in cross-examination of DW.1 who has admitted in unequivocal terms in regard to existence of suit passage has proceeded to decree the suit filed by the plaintiff.

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Feeling aggrieved by the judgment and decree of the Trial Court, the defendant preferred appeal before the Appellate Court. The Appellate Court having independently assessed oral and documentary evidence and the pleadings has dismissed the appeal and has thereby concurred with the findings recorded by the Trial Court.

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Heard learned counsel appearing for the defendant and learned counsel appearing for the plaintiff. I have examined the judgments rendered by the Courts below.

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The plaintiff has filed the present suit seeking relief of declaration that he has got easementary right to use the suit passage. To substantiate his claim, plaintiff

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6 - NC: 2023:KHC:39033 RSA No. 392 of 2016

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has placed on record, the title documents vide Exs.P-17 to P-19. Both the Courts referring to these documents have come to conclusion that the existence of suit passage is substantiated by plaintiff. The plaintiff has further succeeded in eliciting in cross of defendant in regard to existence of the suit passage. Both the Courts referring to these evidence on record have come to conclusion that except suit passage, plaintiff has no other access for ingress and egress. It is in this background, both the Courts have proceeded to decree the suit thereby declaring that plaintiff has got easementary right over the suit passage and consequently, permanent injunction is granted thereby restraining defendant from interfering with plaintiff's right and has further restrained from encroaching over suit ‘B’ property. I have also taken cognizance of the judgments rendered in O.S.No.1158/2007 and R.A.No.365/2014. The bare suit for injunction filed by the defendant against the plaintiff herein is also dismissed.

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7 - NC: 2023:KHC:39033 RSA No. 392 of 2016

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In the light of discussion made supra, no substantial question of law arises for consideration. The appeal is devoid of merits and accordingly, stands dismissed.

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The pending interlocutory application, if any, does not survive for consideration and stands disposed of.

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Sd/JUDGE

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CA List No.: 1 Sl No.: 7

Smt Jayalakshmamma v. Sri Paramesh

Case brief

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Smt Jayalakshmamma v. Sri Paramesh

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