Dismissed

Sri. Gundappa v. Sri Narayanappa

Karnataka HC24 Sept 2024RFA/1201/2015

Case brief

AI extract

What is this about?

First appeal by unsuccessful plaintiffs in a permanent injunction suit claiming right over an 8-feet passage adjoining the defendant's property. The court found plaintiffs used an alternate road via Yellamma temple and that the Commissioner's report showed the passage lay within the defendant's property. Appeal dismissed.

What the court decided

AI extract

Sri. Gundappa Vs Sri Narayanappa — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:39575 RFA No. 1201 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL No.1201 OF 2015(INJ)

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BETWEEN:

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SRI. GUNDAPPA S/O LATE MOTAPPA AGED ABOUT 60 YEARS R/AT NO.569 (BBMP OLD NO.204) OLD POLICE STATION ROAD K R PURAM BANGALORE-560 036

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SRI NAGAPPA SINCE DEAD BY HIS LRS.

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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SRI SRINIVAS N S/O LATE NAGAPPA AGED ABOUT 44 YEARS,

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SRI GANGADHAR N S/O LATE NAGAPPA AGED ABOUT 48 YEARS,

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BOTH ARE RESIDENTS OF NO.204/B, OLD POLICE STATION ROAD K R PURAM BANGALORE-560 036.

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SRI NANJUNDA S/O LATE KRISHNAPPA AGED ABOUT 40 YEARS

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SRI MANJUNATH S/O LATE KRISHNAPPA AGED ABOUT 30 YEARS

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BOTH ARE RESIDING AT NO.574 (BBMP OLD NO.208) OLD POLICE STATION ROAD K R PURAM BANGALORE-560 036

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SMT. PACHAMMA SINCE DEAD APPELLANT NOS.4 AND 5 ALREADY ON RECORD ARE TREATED AS LRS OF APPELLANT NO.5

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…APPELLANTS

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(BY SRI RAJASHEKHARAPPA.D.R, ADVOCATE)

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AND:

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SRI NARAYANAPPA S/O LATE VENKATASUMAPPA SINCE DEAD BY HIS LEGAL REPRESENTATIVES

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01(a) SMT.SHANTHAMMA D/O LATE V.NARAYANAPPA AGED ABOUT 52 YEARS 48 BLOCK, LVS APARTMENTS K.V.LAYOUT,. CLUB ROAD T.C.PALYA, K.R.PURAM BENGALURU – 560 036

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01(b) SRI PADBHANAB S/O LATE V.NARAYANAPPA AGED ABOUT 49 YEARS OPP: BASAVESHWARA TEMPLE OLD POLICE STATION ROAD, K.R.PURAM, BENGALURU – 560 036

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01(c) SRI SHIVAPPA

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S/O LATE V.NARAYANAPPA AGED ABOUT 47 YEARS L.V.S.APARTMENTS NO.4-T BLOCK, K.V.LAYOUT CLUB ROAD, T.C.PALYA K.R.PURAM BENGALURU – 560 036

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01(d) SRI N.SRINIVAS S/O LATE V.NARAYANAPPA AGED ABOUT 42 YEARS NO.37, 2^ND CROSS NEW EXTENSION BEHIND GOVERNMENT COLLEGE K.R.PURAM BENGALURU – 560 036

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…RESPONDENTS

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(BY SRI V NAGAREDDY, ADVOCATE FOR R1(A TO D)

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RFA FILED UNDER SEC.96 R/W ORDER XXXXI RULE 1 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 28.07.2015 PASSED IN O.S.NO.366/2010 ON THE FILE OF THE XII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH.NO.27) AT BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Rajashekharappa D.R. learned counsel for the appellants and Sri V.Naga Reddy, learned counsel for respondents.

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NC: 2024:KHC:39575 RFA No. 1201 of 2015

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Parties are referred to as plaintiffs and defendant as per their original ranking before the Trial Court, for the sake of convenience.

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Unsuccessful plaintiffs are the appellants. Plaintiffs filed a suit for permanent injunction in respect of 8 feet passage supposed to be lying on the western side of their property which is to the eastern side of the property of the defendant stating that they are in possession of the property and using the same as ingress and egress from old Police Station Road, Krishnarajapuram, along with other general public.

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Each of the plaintiffs contend that their sale deed would go to show that they are the owners of the property and in their sale deed, there is a mention that towards the western side of their property, there lies a road.

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Plaintiffs also contend that the property purchased by the defendant originally belonged to one Mariswamy Shetty, which was purchased by Smt. Nagamma in the Court auction and defendant’s vendor is Nagamma. In the sale deed of the defendant also there is a mention of the road on three sides including eastern side of the defendant’s property which is the

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western side of the plaintiffs’ property and therefore sought for an order of injunction.

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They also contend that defendant started interfering stating that it is the exclusive property of the defendant and nobody would be allowed to move in the said passage as it is not a public road and sought for an order of injunction.

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Pursuant to suit summons, defendant entered appearance

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and contended that, no doubt in the sale deed there is a mention about the open passage and road, but plaintiffs have constructed their property encroaching the road portion and therefore, they are asking the road portion to be left over in the property of the plaintiff which is incorrect and therefore, sought for dismissal of the suit of the plaintiffs.

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Based on the rival contentions of the parties, learned Trial Judge framed the following issues:

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(i) Whether the plaintiffs prove that they are having a right to use the schedule property as a passage to reach their respective property?

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(ii) Whether the plaintiffs prove the interference of the defendants as contended in their plaint?

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(iii) Are the plaintiffs entitled for the relief of permanent injunction as sought?

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(iv) What order or decree?

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In order to prove the case of the plaintiffs, first plaintiff got himself examined as P.W.1 and examined three more witnesses as P.Ws.2 to 4 and placed on record 52 documents exhibited and marked as Exs.P.1 to 52.

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As against the evidence placed on record by the plaintiffs, defendant got examined one Padmanabha K.N. as D.W.1 and placed on record 13 documents which were exhibited and marked as Exs.D.1 to D.13.

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Thereafter, learned Trial Judge heard the parties in detail and dismissed the suit of the plaintiffs inter alia observing in paragraphs 14 to 17 as under:

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“14. P.W.1 has admitted in the occurs of further cross-examination that as per Ex.P2, the western boundary of his residential house is shown as house of Muddamma and Kengeri Muddaramaiah and now their sons are residing in the same house by name Rajannashetty and Krishnaiah Shetty. After the house of Rajannashetty there is an old police station road towards west of his house. P.W.1 does not know the sale transaction under Ex.51 and contents of that document. However it is admitted that, as per Ex.P51 the property of said sale deed originally belongs to Mariswamy Shetty.

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One Nagamma got purchased the property of said sale deed from Mariswamy Shetty in a Court auction. It is admitted by P.W.1 that the boundaries shown in Ex.P.51 are true and correct. After the death of Nagamma the father of defendant got purchased the said property from LRs of said Nagamma as per Ex.P52. The boundaries shown in Ex.P51 and 52 are one and the same. There is no measurement mentioned in Ex.P51 but boundaries are there. There is measurement in Ex.P52 with the same boundary shown as East by 58 ft, West by 28 ft, North by 35 ft, and South by 25 ft. The defendant is residing in the area which is described in Ex.P52. The defendant has constructed a new house by demolishing old house. As deposed by P.W.1, they constructed by leaving way towards east and north. The said ways are coming in the measurement shown in Ex.P52. The defendant is in possession of said property from the life time of his father till today, but he does not know whether defendant sold 25X13 ft. area to one Subbaiah Shetty and even after the said sale transaction now the measurement of defendants property is towards East 55 ft, West 28 ft, North 35 ft, South 25 in south north direction 11 ft. area towards East of their property. It is also admitted that, the entire area of vatara belongs to Chinnamma. The main door of the house of plaintiff No.1 to 5 are facing towards east.

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15. P.W.2 H.K.Yellappa is a neighbour to the plaintiff and is working as Treasurer in Durga Maheshwari temple and the 1^st plaintiff is the Vice-President of Durga Maheshwari temple. Though P.W.2 has supported the version of P.W.1 in the course of his examination-in-chief

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as the plaintiffs have been making use of the suit passage to reach their respective houses, plaintiffs have no other alternative road or passage. The defendant has no any kind of right over the suit schedule passage, but he illegally tried to put up compound wall blocking 8 ft. width passage and right of way of plaintiffs. In view of admission of P.W.1, it is established that there is a house of plaintiff No.1 thereafter the said road is situated. P.W.2 is said to have been giving evidence only in favour of 1^st plaintiff, but not in support of other plaintiffs. The house of Nagappa is situated towards the west of Yellamma temple as reflecting in photograph at Ex.D2. P.W.2 does not know anything about the house of plaintiffs 3 to 5. The main door of house of 1^st plaintiff is facing towards the East and the house of defendant is situated adjoining to old police station road. There are two shops constructed by defendant by leaving 3ft. which is the part of suit passage. P.W.1 has not seen any documents in respect of existing alleged way, but he is using the said road to reach the house of 1st plaintiff. There is no document to come to conclusion that the defendant encroached the road and put up saajja in his 1^st floor. Even P.W.2 does not know whether the plaintiff tried to put up compound by covering the area of said road.

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16. P.W.3 J.Ramesh was a tenant under the 1st plaintiff. P.W.3 has no house adjoining or nearer to the house of the plaintiffs’ house. Admittedly there is a road which begins from Old Police station road ending at Kumbarara beedi. The suit property and road appearing

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in photograph are different. That Yellamma Temple is towards east of the 2^nd plaintiff’s house. The door of that temple is facing towards north. There is a small road towards north of said temple which continues towards East and ends at main road of Yellamma temple. There is no door towards northern side facing towards Yellamma temple. The door to the house of 2^nd plaintiff as reflecting in Ex.D2 photograph connects the road which is lying in front of Yellamma Temple.

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17. P.W.4 – R.Kodandarama the member of Durga Maheshwari temple Trust is not a neighbour to the suit property. It reveals from the cross-examination of P.W.4 that all the doors of houses of plaintiffs are facing towards east. The door of house of 2^nd plaintiff is adjoining to the road which is northern side of the Yellamma temple. There is a road in front of the house of 1st plaintiff which leads to Kumbarara Beedi and it is addressing as Yellamma Temple Road. The plaintiffs are using Yellamma Temple Street/road to approach their respective houses. In view of admission of P.W.2 to P.W.4, the claim so set up by the plaintiffs in respect of the suit passage as against the defendants herein has been falsified. Moreover, these witnesses are the followers of the 1^st plaintiff and having interest in 1^st plaintiff. As such, no evidentiary value is attached to the testimony of these witnesses. Infact, very defence of the defendant has been proved through the cross-examination of P.W.1 to P.W.4 apart from documentary evidence on record.”

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Being aggrieved by the same, plaintiffs are in appeal.

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Sri Rajashekharappa, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that in Exs.P.51 and 52 there is a clear mention of existence of the road in the east and northern side of the defendant’s property which is the road that the plaintiffs are claiming in the suit in the form of rough sketch and therefore, the dismissal of the suit by the Trial Court has resulted in miscarriage of justice.

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He also pointed out that there is an admission in the evidence of D.W.1 that defendant and few others are using the passage shown in the sketch to the suit property. Therefore, the defendant cannot deny the existence of the suit passage and sought for allowing the appeal.

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He also pointed out that the learned Trial Judge has wrongly recorded a finding against the plaintiffs and wrongly dismissed the suit of the plaintiffs resulting in miscarriage of justice and sought for allowing the appeal.

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Per contra, Sri Naga Reddy, learned counsel for the respondents/defendants supports the impugned judgment.

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NC: 2024:KHC:39575 RFA No. 1201 of 2015

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In view of the rival contentions of the parties, this Court perused the material on record meticulously.

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On such perusal of the material on record, the points that would arise for consideration by this Court are:

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(i) Whether the plaintiffs make out a case for decreeing the suit for permanent injunction?

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(ii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference by this Court?

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(iii) What Order?

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Regarding Point Nos.1 and 2: In the case on hand admittedly Ex.P.1 is the title document of the vendor of the plaintiff No.1 who is none other than his owner grand-mother. Ex.P.2 is the sale deed executed in the year 1968 in favour of

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plaintiff No.1. In the said document, not only there is measurement, but also boundaries.

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Likewise, Exs.P.51 and 52 are the documents pertaining to the title of the defendants. In those of documents also existence of the road is found. Even in Ex.P.51, boundary shown would go to show that on three sides of the defendant’s property there exists a road.

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As such, what is to be looked into in the case on hand is about existence of the road on the western side and southern side of the plaintiffs’ property.

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In the defendant’s sale deed, on the northern side and eastern side of the defendant’s property the boundary shown is a road. Therefore, existence of the road is established by the plaintiffs. But according to the defendant, plaintiffs have constructed their property beyond the area what has been purchased by them which engulfs itself into the existing road and the defendant for his ingress and egress and few others had left an open passage. Plaintiffs are now claiming right over the said passage to reach their property for ingress and egress from old police station side which is impermissible in law.

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The material evidence discussed by the learned Trial Judge as referred to supra would go to show that there exists a road from Yellamma temple side which is being used by all the plaintiffs for their ingress and egress. In other words, they are not using the suit passage for their day in and day out usage.

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It is clearly admitted by P.W.4 in that regard and the oral testimony of P.Ws.3 and 4 are contradictory in nature. It is also pertinent to note that except the first plaintiff, no other plaintiffs are examined.

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Admittedly, P.Ws.2 to 4 are interested witnesses inasmuch as they are the followers of P.W.1. Even assuming that their evidence to be true, the plaintiffs failed to prove that they are using the suit passage for the purpose of reaching the main road that is the road which runs from old police station road.

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It is in that context that the material evidence on record is appreciated by the learned Trial Judge.

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It is the specific case of the defendant that the plaintiffs have constructed the property beyond the measurement of their sale deed encroaching the road that was in existence and now they are now trying lay claim on the vacant space left behind by the defendant in their property.

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It is in this regard to find out whether defence raised by the defendant is true or not, the learned Trial Judge appointed Junior Engineer of the Bruhath Bengaluru Mahanagara Palike as

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the Court Commissioner for the purpose of local inspection. Said Engineer has visited the spot in the presence of the parties and prepared a sketch and a report.

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The plaintiffs, for the reasons best known to them, did not object for the report filed by the Commissioner. Therefore, Trial Court has placed reliance on the report filed by the Commissioner.

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Since Commissioner’s report is part of court record, learned Trial Judge has taken into consideration the probative value of Commissioner’s report and has recorded a clear finding that the Court Commissioner has shown the measurement of the suit passage as less than 7 feet which connects the old police station road towards the west of plaintiffs’ property.

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Therefore, under such circumstances, the defence of the defendant that he left the open space in his sital measurement for the purpose of ingress and egress has been accepted by the learned Trial Judge.

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Learned Trial Judge also noted that since it is a suit for bear injunction, plaintiffs should stand on their own strength with regard to the contentions of the plaint and they cannot

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take advantage of the weakness in the case of the defendant, which is settled principle of law.

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While so holding that the Commissioner’s report is proper, the learned Trial Judge has come to the conclusion that the existence of the passage is in the property of the defendant and not the road that was shown in their respective sale deeds and dismissed the suit of the plaintiffs.

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Even on re-appreciation of material evidence on record, this Court is of the considered opinion that the appeal grounds are hardly sufficient to interfere with the well reasoned order of the learned Trial Judge.

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Moreover, plaintiffs/appellants are using an alternate road to reach the main road as is admitted by the witnesses of the plaintiffs. Therefore, no hardship would also be caused to the plaintiffs by upholding the judgment of the Trial Court.

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Accordingly point Nos.1 and 2 are answered in the negative.

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Regarding Point No.3: In view of the finding of this Court on point Nos.1 and 2 as above, the following:

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ORDER

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Appeal is meritless and is hereby dismissed .

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No order as to costs.

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Sd/(V SRISHANANDA)

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JUDGE

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kcm List No.: 1 Sl No.: 67

Sri. Gundappa v. Sri Narayanappa

Case brief

What is this about?

What the court decided

Sri. Gundappa v. Sri Narayanappa

Case brief

What is this about?

What the court decided

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