Dismissed

Mahadevappa v. Tahasildar

Karnataka HC6 Feb 2024RSA/373/2023

Case brief

AI extract

What is this about?

This regular second appeal was dismissed by the High Court of Karnataka. The court upheld the lower courts' dismissal of the suit for declaration of easementary rights, finding that the appellants failed to prove the existence of the claimed road and had adequate access via a public road.

What did the court decide?

The appeal was dismissed, confirming the judgment and decree dismissing the suit for declaration of easementary right and permanent injunction.

Mahadevappa Vs Tahasildar — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:4991 RSA No. 373 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 373 OF 2023 (DEC/INJ)

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BETWEEN:

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MAHADEVAPPA

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S/O LATE PUTTABASAPPA AGED ABOUT 76 YEARS

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SIDDAPPA S/O LATE PUTTABASAPPA AGED ABOUT 68 YEARS

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SHIVASWAMY S/O LATE PUTTABASAPPA AGED ABOUT 62 YEARS

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RAJASHEKARA S/O LATE PUTTABASAPPA AGED ABOUT 64 YEARS

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ALL ARE R/A SUTTUR VILLAGE BILIKERE HOBLI

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Digitally signed by SUMA B N Location: High Court of Karnataka

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NANJANGUD TALUK

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(BY SRI. GURUDATH B S.,ADVOCATE)

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…APPELLANTS

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AND:

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TAHASILDAR NANJUND TALUK NANJANGUD

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DEPUTY COMMISSIONER MYSORE DIST. MYSURU

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CHIEF SECRETARY KARNATAKA STATE GOVERNMENT

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NC: 2024:KHC:4991 RSA No. 373 of 2023

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VIDHANA SOUDHA BENGALURU

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…RESPONDENTS

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(BY SRI. AZRA J. DUNDGE, AGA.,ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED PASSED IN RA NO.47/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, NANJANGUD. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.10.2021 PASSED IN OS NO.52/2012 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, NANJANGUD.

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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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This is an appeal filed by the plaintiff being aggrieved by

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the Judgment and Decree dated 30.10.2021 passed in O.S.No.52/2021 on the file of I Addl. Civil Judge and JMFC, Nanjangud by which the suit of the plaintiff for declaration of their perported easementary right of way was dismissed which is confirmed by the Judgment and order dated 17.12.2022 in R.A.47/2021 on the file of Senior Civil Judge and JMFC, Nanjangud.

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The above suit in O.S.No.52/2021 filed by the plaintiffs seeking reliefs to declare that the plaintiffs have got easementary right over the Schedule 'A' property for using the

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NC: 2024:KHC:4991 RSA No. 373 of 2023

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same as a road from Southern side to the Northern side of an extent of 20 feet and to restrain the defendants from putting up any fence with gate to Schedule 'A' Property and for a decree of Permanent Injunction against the defendants No.1 to 3 restraining them from putting up any fence to Sutturamma's Pond that exists in Schedule 'B' Property. It is case of the plaintiffs that they are the absolute owners of lands at Sy.No.15 measuring to an extent of 1 acre 32 guntas, Sy.No.144 measuring to an extent of 1 acre 10 guntas, Sy.No.147/1 measuring to an extent of 8 guntas and in Sy.No.147/2 measuring to an extent of 5½ guntas which is situated in Sutturu village at Nanjangud. It is the further case of the plaintiffs that they are in the possession and enjoyment

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of the said properties as the same are their ancestral properties. It is contented by the plaintiffs that towards the southern side of these properties there exists a property bearing Sy.No.148 measuring 8 guntas which is described by the plaintiffs as Schedule 'A' Property. That in the said properties, there exists Sutturamm's Temple. It is contented that the plaintiff No.1 is the priest of the said temple and he is performing pooja. It is the further case of the plaintiffs that

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4 - NC: 2024:KHC:4991 RSA No. 373 of 2023

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there is a vacant space available in front of the said temple which is being used as a road by the plaintiffs to reach to their lands which are situated on the northern side of Schedule 'A' Property. It is their case that usage of the said space as a road is a necessity for them to have access to their lands which they

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are using for agricultural purposes from time immemorial, which has not been obstructed by any one till date. It is further contended that on the Southern side of Schedule 'A' Property, there is a property bearing Sy.No.149 measuring to an extent of 2 acre 13 guntas which consists of Sutturamma's pond and the said property is described by the plaintiffs are Schedule 'B' Property. The plaintiffs are using water from this pond for irrigation of their land and for their livestock. It is their case that 20 ft road, over which they are claiming easementary right is between the Sutturamma Temple and the pond in Sy.No.149. It is alleged that the defendants with vested interest and under the political influence, attempted to a put bared wire fence around the Schedule 'A' Property with an intention to close the said 20 ft wide road described in the Schedule 'A' Property also had intention to fence the Schedule 'B' Property. Aggrieved by the same, the plaintiffs had given

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NC: 2024:KHC:4991 RSA No. 373 of 2023

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an memorandum to the Defendant No.1 on 13.01.2012 seeking redressal of their grievance and which is not been considered, constraining the plaintiffs to approach this court for seeking reliefs.

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On service of summons, defendants appear. Written Statement is filed by the Defendant.No.1 disputing the description of the boundaries of the properties given by the plaintiffs and also disputed the existence of the road measuring 20 ft as claimed by the plaintiffs in the Schedule 'A' Property running from South to North. It is also contented that no boundaries are given by the plaintiff with respect to perported 20ft wide road in respect of which the declaration of easementary right is sought. The claim of the plaintiffs that the said road has been used by their ancestors from time immemorial has been specifically denied. It is also denied that the plaintiffs are using Sutturamma pond situated in Schedule 'B' Property for their irrigation purposes. It is further contended

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that Schedule A and B Properties belongs to the Government and it is the obligation of the defendants to protect and preserve the said land being encroached by the third parties. It is contended that even in the village map, there is no road

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shown in the Schedule 'A' Property as claimed by the plaintiffs. It is contended that plaintiffs are having a road on the western side of the Schedule 'A' Property that deviates towards north and said road is accessible for the plaintiffs to reach their lands. It is further contended that towards northern side of the Schedule 'A' property there is a small water channel flowing from east to west and there is no road in Schedule 'A and B' Property. That when there is no existence of any road, the question of granting relief of declaration of easementary right in favour of plaintiffs would not arise. As regards the right to withdraw the water from the pond, it is contended that plaintiffs have no right as the said property belongs to the Government. Hence, sought for dismissal of the suit.

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The Trial Court based on the pleadings framed the following issues and recorded the evidence:

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"Issues framed by the Trial Court"

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1. Whether plaintiffs prove that they have got easementary right over suit 'A' and 'B' schedule property?

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2. Whether plaintiffs prove the existence of 20 feet road from south to north direction on the suit 'A' schedule property?

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NC: 2024:KHC:4991 RSA No. 373 of 2023

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3. Whether plaintiffs prove the alleged interference by the defendants?

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4. Whether the plaintiffs are entitled for the reliefs as sought for?

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5. What order or decree?

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Plaintiff No.1 is examined as PW-1 and two other witnesses as PW-2 and PW-3 and marked 26 documents as Ex.P-1 to Ex.P-26. On behalf of the Defendants, the Tahsildar examined himself as DW-1 and marked three documents. On appreciation of the evidence, the Trial Court answered Issue No.1 to 4 in negative and consequently dismissed the suit.

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Being aggrieved by the same, the plaintiff preferred R.A.No.47/2021 before the First Appellate Court. Considering the grounds urged in the Appeal memo, the First Appellate Court framed the following points for consideration:

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1. Whether the judgment and decree of the trial court need interference?

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2. To what relief and decree the parties are entitled for?

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On re-appreciation of the evidence of the First Appellate Court

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dismissed the Appeal confirming the Judgment and Decree passed by the Trial Court.

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NC: 2024:KHC:4991 RSA No. 373 of 2023

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The Trial Court and the First Appellate Court on appreciation of the evidence have found that the plaintiff failed to prove and establish the existence of the 20 ft road in the Schedule 'A' Property and also found that there is a road lying on the northern side of the property being claimed by the plaintiffs providing connectivity. As such, came to the conclusion that the plaintiffs have proper and public road as access to their property and in the absence of plaintiffs established the existence of 20ft wide road being in their use for the past 30 years as claimed, came to the conclusion that they are not entitled for relief of declaration and easementary right as sought for. The Trial Court has also taken consideration of admission of PW-1 with regard to existence of the pathway on the western side of the Schedule 'A' Property and on the northern side of the property in Sy.No.144. The Trial Court has also compared the deposition of PW-1 with the village map at Ex.D-3 with regard to the existence of the Government Road towards the northern side of the property in Sy.No.144 which road continues towards the western side of the Schedule 'A' Property.

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NC: 2024:KHC:4991 RSA No. 373 of 2023

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This court while hearing the matter for admission had directed the Tahsildar concerned to conduct a survey and file report with regard to existence of road as claimed by the plaintiff if any. A memo dated 31.01.2024 was filed by the Respondents consisting of hand sketch, report showing the existence and the situation of suit properties and property belonging to the plaintiffs along with five photographs. The same is taken on record. Perusal of the hand sketch reveal that area marked in orange colour is the public road having width of 20 ft - 35 ft running from South to North and there after turning towards east on the northern side of Property bearing Sy.Nos.143, 144, 146, 142 and 141 belonging to plaintiffs. The said road connects to the main road running from Sutturu to Gimmaralli. Photograph evidence of the existence of said road is also produced.

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Plaintiffs/Appellants have also produced the

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photographs which show the existence of the road as shown in the report filed by the Tahsildar. However the plaintiffs also has indicated the road purportedly being used by them through the property bearing Sy.No.148 belonging to the Sutturamma

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NC: 2024:KHC:4991 RSA No. 373 of 2023

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10 -

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Temple. Thus what remains undisputed from the evidence available on record and appreciated by the Trial Court and the First Appellate Court is existence of a public road as providing sufficient access to the properties of the plaintiffs, which fact is accepted by the Trial Court and the First Appellate Court That being the factual as per the matter. No infirmity or illegality can be found with the reasoning and conclusion of the Trial Court as well as the First Appellate Court, Plaintiffs have failed to prove and establish easement of necessity as claimed in the plaint. No substantial question of law would arise for consideration in the matter.

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As such, the Appeal is dismissed .

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Sd/JUDGE

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List No.: 2 Sl No.: 35

Mahadevappa v. Tahasildar

Case brief

What is this about?

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Mahadevappa v. Tahasildar

Case brief

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