In a second appeal regarding a suit for declaration of right of way and mandatory injunction to dismantle an obstructions, the High Court of Karnataka held that the delay in filing the first appeal was not condonable. Consequently, the appeal was dismissed.
Dis missed the second appeal filed against the judgment and decree.
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.
NC: 2023:KHC:23003 RSA No. 581 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 581 OF 2012 (DEC/INJ)
BETWEEN:
…APPELLANTS
(BY SRI. T A KARUMBAIAH., ADVOCATE)
AND:
Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA
NC: 2023:KHC:23003 RSA No. 581 of 2012
R/AT BYRIKATTE KARMALA PUTTUR KASABA VILLAGE PUTTUR TALUK DAKSHINA KANNADA DISTRICT
…RESPONDENTS
(BY SRI. SUYOG HERELE E, ADVOCATE FOR SRI. SACHIN B S, ADVOCATE FOR R2; R1, 3 AND 4 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 8.3.2012 PASSED IN R.A.NO.39/2011 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC., PUTTUR, D.K, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 12.7.2005 PASSED IN O.S.NO.94/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) PUTTUR, D.K.TRIAL COURT DECREED THE SUIT, APPELLATE COURT DISMISSED THE APPEAL AND ETC.
THIS RSA, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
judgment and decree dated 8.3.2012 passed by Senior Civil Judge & JMFC, Puttur in RA No.39/2011 and the judgment and decree dated 12.7.2005 passed by Principle Civil Judge (Jr.Dn), Puttur in OS No.94/1997 and for dismissal of the suit.
in the trial Court.
respondents No.1 and 2 were plaintiffs No.1 and 2 and respondents No.3 and 4 were defendants No.3 and 4 before the trial Court in OS No.94/1997.
The Sy.No.1 of Puttur Kasaba village was a government land and it was subdivided and distributed to
various beneficiaries by way of grant in the year 1972. The subdivided numbers are 1/8, 1/9, 1/10, 1/11, 1/12, 1/13, 1/14 etc., It is stated that while allotting the lands to various grantees provisions were made for the approach roads to reach the respective lands. A separate road was demarcated and set apart in between Sy.No.1/13 and 1/15 which runs roughly from north to south to a width 14 feet meant to be used as approach road to the said lands.
It is said that, the road portion was being used by the plaintiff and others and recently the defendants have obstructed a portion of the road. It is stated that land measuring 8 cents was granted to one Babu Gowda S/o Venkappa Gowda as per NADR 23/69-70 dated 25.10.1972, the said Babu Gowda sold the said 8 cents of the land to Chandrashekara S/o Rangappa Dasa on 15.6.1988. The plaintiff purchased the said 8 cents of and from the said Chandrashekar on 12.12.1995 with an intention to construct a house therein. The plaintiff is in possession of the said 8 cents of land, since the date of
purchase. Sy.No.1/9 is in possession of the defendant No.3 and Sy. No.1/8 is in possession of defendant No.4. The plaintiffs-defendants No.3 and 4 are using the said roadway. The said roadway lies to the western side of Sy.No.1/13. It is stated that in the year 1974 bye-pass road formed from Haradi to Nehrunagar and it partly runs through in norther portion of Sy.No.1/13. It is stated that except the said approach road there is no other road to reach the property of the plaintiffs-defendants No.3 and 4.
It is stated that the defendants No.1 and 2 purchased Sy.No.1/13 in the year 1996 in the name of the defendant No.2 and thereafter they started constructing house building during June 1996. While so constructing defendants No.1 and 2 encroached the said approach road which the plaintiffs and others were using. The said building constructed by the defendants No.1 and 2 is a temporary structure with hallow blocks and construction was completed hastily. The plaintiff complained about the same to Puttur Town Municipality, the defendants agreed
to vacate the encroached road portion and executed an agreement to vacate the land and to restore to its original position on 26.6.1996 within one year. The plaintiff was unable to take vehicles namely lorry to carry construction materials and his lorry to park in his land. The plaintiff sent the notice on 25.6.1997 to the defendants No.1 and 2 requesting them to vacate the encroached portion of the approach road and to remove all the obstructions. The defendants did not agree to the request of the plaintiffs, therefore the plaintiff filed a suit seeking for the above reliefs.
formulated the following points for consideration;
1. Whether the plaintiff has proved that he has got a right of roadway to a width of 14 feet between Survey Nos.1/13 and 1/15 of Puttur Kasaba Village?
2. Whether the plaintiff has proved that the defendants No.1 and 2 have constructed a portion of building blocking the said roadway?
3. Whether the plaintiff is entitled for the relief claimed?
4. What order?
NC: 2023:KHC:23003 RSA No. 581 of 2012
to a width of 20 links so as to clear the disputed way for the use of various allottees and the general public and also granted perpetual injunction restraining the defendants, obstructing the disputed roadway.
appeal. This appeal came to be admitted to considered the following substantial questions of law.;
that even in Hakku pathra (Ex.P.10) where the plaintiff-vendor claims title, no boundaries are mentioned in it. The said exhibits P.10 to 12 does not reveal a road. The plaintiffs have not filed any village plan to show the road. He further argued that a person can seek easementary right, if there is no right of way to approach his property, that the plaintiff is having way to approach his property in property bearing Sy.No.1/15 belonging to panchayat.
Court has erred in dismissing the application filed by the appellants seeking condonation of delay erroneously. The appellants-defendants were not having sufficient opportunity to contest the matter on merits and therefore, matter requires to be remanded.
NC: 2023:KHC:23003 RSA No. 581 of 2012
on merits, but they have not availed the said opportunities. The case put forth by the plaintiffs and the evidence led by them remained un-rebutted and considering the same, the Trial Court has decreed the suit of the plaintiffs.
there is a road in between the property bearing Sy.No.1/13 and the property bearing Sy.No.1/15, a sketch has been produced which is at Ex.P5 and it is prepared by the Surveyor. As seen in the said sketch Ex.P5, there is an approach road to reach the property of the plaintiffs bearing Sy.No.1/10 and it is situated between the defendants property bearing Sy.No.1/13 and the Government property bearing Sy.No.1/15. The said Ex.P5 sketch prepared by the Surveyor prior to filing of the suit establishes that there is a road in between the property of the defendants bearing Sy.No.1/13 and the Government property bearing Sy.No.1/15 to reach the plaintiffs property bearing Sy.No.1/10 and also the properties of defendant Nos.3 and 4 bearing Sy.Nos.1/9 and 1/8.
counsel were present. The Court Commissioner submitted his further report along with the sketch. All the objections raised by defendant Nos.1 and 2 were answered by the Court Commissioner in the said report. In the said Commissioner’s report it is also stated that the defendants have constructed a building in the road portion in between the property bearing Sy.Nos.1/13 and 1/15. Based on the evidence on record, the Trial Court has rightly held that the said pathway in between the property bearing Sy.Nos.1/13 and 1/15 measures 12 feet.
NC: 2023:KHC:23003 RSA No. 581 of 2012
the property in which the defendants have constructed the building.
bearing Sy.No.1/15, but it is the property belonging to the Government as stated in the Court Commissioner’s report and the sketch enclosed to the Court Commissioner’s report. Merely because the plaintiffs are using the property bearing Sy.No.1/15 to reach their property, they cannot be deprived of claiming their right of way to the road situated adjacent to the property of the defendants as there exists a road on the Northern side of the plaintiffs property bearing Sy.No.1/10 and Western side to the property of the defendants bearing Sy.No.1/13 and adjacent to the Government property bearing Sy.No.1/15. The plaintiffs have right to claim the said pathway to reach their property. The plaintiffs are not claiming right of way in the property of defendant Nos.1 and 2. The plaintiffs are claiming right of way in
NC: 2023:KHC:23003 RSA No. 581 of 2012
the road in existence in between the property bearing Sy.Nos.1/13 and 1/15.
judgment and decree of the Trial Court after 6 years 28
NC: 2023:KHC:23003 RSA No. 581 of 2012
days. They filed application seeking condonation of delay of 6 years 28 days in filing the appeal.
NC: 2023:KHC:23003 RSA No. 581 of 2012
counsel for the defendants and therefore, the appeal is not maintainable.
Nos. (i) to (iii) are answered. The appeal is dismissed .
Sd/JUDGE
SR/GH List No.: 1 Sl No.: 20
3 issues framed by the court
Whether the First Appellate Court erred in dismissing the application for condonation of delay in filing the second appeal.
Whether the appellants had sufficient opportunity to contest the matter on merits.
Whether Trial Court and Lower Appellate Court properly appreciated the pleadings and documents regarding the right of way.
2 provisions across 2 enactments
Chandrashekara Acharya
Nirmala
Monappa Gowda
K Seetharama
Ravindra Kumar
P Babu
Shivashankar Amannavar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
