Dismissed

Perdoor Grama Panchayat v. Smt Rathna

Karnataka HC18 Sept 2024RSA/1146/2022

Case brief

AI extract

What is this about?

In a Second Appeal under Special Leave to Appeal (SLL) regarding a civil dispute over a permanent injunction, the High Court dismissed the appeal. The appellant (Panchayat) challenged the First Appellate Court's reversal of the trial court's dismissal. The bench held that the defendant had admitted the road's existence, justifying the suit's allowance, and found no perversity in the lower appellat

What did the court decide?

The appeal is dismissed at the stage of admission due to the absence of a substantial question of law.

Perdoor Grama Panchayat Vs Smt Rathna — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:38160 RSA No. 1146 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 1146 OF 2022 (INJ)

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BETWEEN:

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PERDOOR GRAMA PANCHAYAT REPRESENTED BY B. GOPHALA S/O LATE SOMA AGED ABOUT 58 YEARS PANCHAYATH DEVELOPMENT OFFICER PERDOOR, UDUPI TALUK UDUPI DISTRICT-576 124

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…APPELLANT

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(BY SRI. K. PRASAD HEGDE, ADVOCATE)

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AND:

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Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka

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SMT. RATHNA D/O LATE GULABI BHANDARTHI AGED ABOUT 72 YEARS NEAR PERDOOR MELPETE BUS STOP PERDOOR POST AND VILLAGE UDUPI TALUK AND DISTRICT-576 124

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…RESPONDENT

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(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)

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THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.04.2022 PASSED IN RA.NO.74/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ACJM, UDUPI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 03.09.2019 PASSED IN OS.NO. 468/2013 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI.

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NC: 2024:KHC:38160 RSA No. 1146 of 2022

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE E.S.INDIRESH

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ORAL JUDGMENT

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This appeal is preferred by the defendant challenging

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the judgment and decree dated 16^th April 2022 in RA No.74/2019 on the file of II Additional Sr.Civil Judge and ACJM at Udupi allowing the appeal and setting aside the judgment and decree dated 3.9.2019 in OS No.468/2013 on the file of II Addl. Civil Judge and JMFC, Udupi dismissing the suit of the plaintiff.

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The parties are referred to as per their ranking before the trial Court for the sake of convenience.

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It is the case of the plaintiff that the suit schedule property has been granted to the mother of the plaintiff-Gulabi Bhandarthi and she died on 02.01.2013 leaving behind the plaintiff and other children as her legal representatives. It is further stated in the plaint that the plaint `A' Schedule property is the vacant land and in

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3 - NC: 2024:KHC:38160 RSA No. 1146 of 2022

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order to enter the suit schedule property, the plaintiff and her family members are using the road which runs to adjacent property bearing Sy.No.127/22B1 and Sy.No.127/22A measuring 0.12 acres which belongs to defendant from the time immemorial and as such, as the defendants are blocking the road, the plaintiff has filed OS No.468/2013 before the trial Court seeking relief of permanent injunction with consequential relief of mandatory injunction to remove the obstruction made by the defendant-Panchayath.

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After service of notice, the defendant entered appearance and filed detailed written statement contending that the plaintiff would have approached the competent authority and as such, the defendant ought to have taken steps in the matter and accordingly it is stated in the written statement that the interest of general public is to be looked into and not the individual right of plaintiff. Accordingly sought for dismissal of the suit.

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4 - NC: 2024:KHC:38160 RSA No. 1146 of 2022

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The trial Court based on the pleadings on record framed issues and additional issue for its

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consideration.

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In order to establish their case, plaintiff has examined herself as PW.1 and marked 19 documents and were marked as Examination-in-chief.P1 to P19. No oral or documentary evidence has been adduced by the

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defendant.

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The trial Court after considering the material on record, by its judgment and decree dated 3.9.2019 dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred RA 74/2019 before the First Appellate Court. The said appeal was resisted by the defendant.

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The First Appellate Court, after re-appreciating the material on record by judgment and decree dated 16^th April 2022 allowed the appeal, consequently set aside the judgment and decree in OS No.468/2013. Feeling

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5 - NC: 2024:KHC:38160 RSA No. 1146 of 2022

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aggrieved by the same, defendant-Panchayat has filed the present second appeal.

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Heard Sri K.Prasad Hegde, learned counsel appearing for the appellant and Sri Chandranath Ariga K, learned counsel for respondent-plaintiff.

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Sri K. Prasad Hegde appearing for the appellant invited the attention of the Court to the finding recorded by the trial Court and submitted that the plaintiff has failed to prove that there is a road/way for the plaintiff to reach the suit schedule property. In that view of the matter, as the plaintiff has failed to establish the right of the way as stated in the plaint, the trial Court has rightly dismissed the suit, however, the said aspect of the matter has not been considered by the First Appellate Court and therefore, sought for interference of this Court.

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Per contra, Sri Chandranath Ariga, learned counsel appearing for the plaintiff invited the attention of the Court to the averments made in the written statement

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6 - NC: 2024:KHC:38160 RSA No. 1146 of 2022

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and submitted that the defendants have admitted in the written statement with regard to existence of the above road and therefore, the contentions raised by the appellant/defendant cannot be accepted. Accordingly he sought for confirmation of the judgment and decree passed by the first appellate court.

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Having taken note of the submission made by the learned counsel for the parties, it is not in dispute that the suit schedule property has been granted in favour of the mother of the plaintiff by the Land Tribunal and mother of the plaintiff died intestate on 02.01.2013 leaving behind the plaintiff and other children as legal representatives. It is the case of the plaintiff that the plaintiff and her family members are using the road which is adjacent to suit schedule property from time immemorial and defendants are obstructing the same. In this regard, taking into consideration the finding recorded

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by the trial Court, I have given my anxious consideration to the facts of the case and to the averments made in the

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written statement from paragraph 5 of the written statement which reads as under:

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"……the defendant or any members of the Panchayat has not objected the plaintiff to use the road as stated in the plaint, which is meant for the user of the general public"

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Though the learned counsel appearing for the appellant submitted that there is no right of way for the plaintiff however, the defendant in the written statement admitted the existence of the road. In that view of the matter, taking into consideration Ex.P3 and P4 which prima facie reflect the existence of road as contended by the learned counsel appearing for the plaintiff/respondent, the trial Court has committed an error in dismissing the suit. However, the same has been rectified by the First Appellate Court by exercising jurisdiction under Order 41 Rule 31 of CPC.

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In that view of the matter, taking into

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consideration the finding recorded by the First Appellate

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NC: 2024:KHC:38160 RSA No. 1146 of 2022

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Court at paragraph.20 of the impugned judgment and decree in RA No.74/2019, I am of the view that defendant-appellant has not made out a case for

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interference by this Court in this appeal.

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Accordingly, as there is no perversity in the

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judgment and decree passed by the First Appellate Court, the appeal is dismissed at the stage of admission as the appellant has not made out a case for formulation of substantial question of law as required under Section 100 of CPC.

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SD/(E.S.INDIRESH) JUDGE

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Sk/List No.: 1 Sl No.: 34

Perdoor Grama Panchayat v. Smt Rathna

Case brief

What is this about?

What did the court decide?

Perdoor Grama Panchayat v. Smt Rathna

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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