Second appeal by plaintiffs challenging reversal of their decree declaring an easementary right of way over the defendant's land. The High Court noted admission of an alternate road and that plaintiffs had sold their property, found no substantial question of law, and dismissed the appeal at admission.
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5797 OF 2013 (DEC/INJ-)
BETWEEN:
Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD
…APP E LLANTS
(BY SMT. DEEPA J., A DVOCATE FOR SRI PAVAN B.DODD A TTI, ADVOCATE)
AND:
NAGAPPA S/O. PAN D APPA HARIJAN AGE: 52 YEARS, OC C : AGRICULTURE, R/O. CHANNAL VILL A GE, TQ: MUDHOL, DIST: BAGALKOT-587313.
…RESP O NDENT
(BY SRI N.L.BATAKURKI, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING THAT THE JUDGMENT AND DECREE DATED 03.08.2013 PASSED IN R.A.NO.10/2007 BY THE COURT OF THE SENIOR CIVIL JUDGE, MUDHOL, MAY KINDLY BE SET ASIDE AND JUDGMENT AND DECREE DATED 22.12.2006 P ASSED IN O.S.NO.238/2005 BY THE C O URT OF THE ADDITIONAL CIVIL JUDGE (JR.DN.), MUDHOL IN DE C REEING THE SUIT, MAY KIN D LY BE AFFIRMED AND ALLOW THE SUIT OF THE PLAINTIFFS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSIION, THIS D A Y, THE COURT DELIVERED T HE FOLLOWING:
JUDGMENT
The present s econd appeal is filed by the plaintiff s under Section 100 of the Code of Civil Procedure, 19081 , challenging the judgment and decree dated 03.08.2013, passed in R.A No.10/2007 by the Court of the Senior Civil Judge, Mud h ol2 and the judgment and decree dated 22.12.2006, passed in O.S No.238/2005 by t h e Additional Civil Judge (JR.DN), M udhol3 . Wherein, the suit for declaration of easementary right and injunction was d e creed by the Trial Court and the First Appellate Court all o wed the appeal filed by the defend a nt and set aside the judg m ent and decree passed by the Trial C o urt.
1 Hereinafter referred to as ‘CPC’
2 Hereinafter referred to as t he “ First Appellate Court”
3 Hereinafter referred to as t he ‘Trial Court’
“Suit of the plaintiffs is decreed.
It is or d ered and declared that the plaintiffs ha v e got the ri g ht of easement by way of necessity ov e r the XNO w ahiwat road which is situated in the la n d of defend a nt in R.S No.121/4 as being narrated in the plaint h and sketch.
Further, the defendant is restrained by way of a n order per p etual injunction from use and enjoyme n t of the XN O wahiwat suit road to the plaintiffs. Under t h e circumstances of the case, the parti e s are direct e d to bear their own costs. Draw d e cree accordingly.”
the First Appellate Court has rejected the report of th e Court Commissioner, sin c e he has failed to notice the alternati v e road as admitted by P W .1 to PW.3 in their cross-examinati o n. It is further noticed that the Court Commissioner has n o t been examined.
plaintiff. The said a spect itself is sufficient to deny the r elief of declaration as sou g ht for by the plaintiff.
Sd/JUDGE
PMP CT:GSM List No.: 1 Sl No.: 2 1
2 issues framed by the court
Did the plaintiffs establish an easementary right of way over the defendant's land when an alternate road was admitted?
Does the appeal raise any substantial question of law under Section 100 CPC?
1 provisions across 1 enactments
Bhimappa s/o Timmapppa B. Patil
Ramappa s/o Timmapppa B. Patil
Venkappa s/o Timmapppa B. Patil
Appasaeb s/o Timmapppa B. Patil
Hanamappa s/o Timmapppa B. Patil
Nagappa s/o Pandappa Harijan
C.M. Poonacha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
