Ningappa S/O Basappa Barki Vs Yashavantappa S/O Melappa Tuvar

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO CALL FOR RECORDS; SET ASIDE THE JUDGMENT AND DECREE DATED 12.01.2018 PASSED BY THE COURT OF II ADDITIONAL SENIOR CIVIL JUDGE RANEBENNUR, IN R.A.NO.88/2015 BY CONFIRMING THE JUDGMENT AND DECREE DATED 01.08.2015, PASSED BY THE COURT OF PRL. CIVIL JUDGE AND I ADDITIONAL JMFC, RANEBENNUR, IN O.S.NO.432/2011; DECREE THE SUIT OF THE PLAINTIFF AS PRAYED IN THE PLAINT AND ETC.,

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

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is by the plaintiff aggrieved by the judgment and decree dated 01.08.2015 passed in OS No.432/2011 on the file of Principal Civil Judge and I Additional JMFC Court, Ranebennur (for short ‘Trial Court’) which is confirmed by the judgment and order dated 12.01.2018 passed in RA No.88/2015 on the file of II Additional Senior Civil Judge, Ranebennur (for short ‘First Appellate Court’) by which suit of the plaintiff has been dismissed.

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The above suit in OS No.432/2011 has been filed by the plaintiff seeking declaration of his easementary right over the ‘suit way’ having width of 10 ft., and length of 200 mtrs., which is described in hand sketch annexed to the plaint as ‘GHEF’; and for consequential relief of permanent injunction restraining the defendants from interfering with peaceful enjoyment of the ‘suit way’ by the plaintiff to reach

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his land situated towards eastern side of the lands of defendants.

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Case of the plaintiff is that, he is the owner of the land bearing RS No.27/2A measuring 6 acres 17 guntas situated at Kotihala village which is described in the hand sketch as ‘ABCD’. That the land bearing RS No.28/1 measuring 2 acres 25 guntas, which is shown in letters ‘KFLJ’ in hand sketch belongs to defendants No.1 to 4. That the land bearing Sy.No.28/2 measuring 2 acres 25 guntas, which is shown in letters ‘JIEK’ in the hand sketch belongs to defendant No.5. That the aforesaid lands of the defendants No.1 to 5 are situated on the western side of the land belonging to the plaintiff.

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That Lingadahalli-Holeanvery road running north to south is situated on the western side of the lands of the defendants, abutting Upper Tunga channel on its western side.

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The ‘suit way’ measuring 10 ft. width X 200 mtrs., shown in letters ‘GHEF’ of the hand sketch is existing on the southern end of the lands of defendants No.1 to 5,

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connecting the aforesaid Lingadahalli-Holeanvery road and the land of the plaintiff. The said ‘suit way’ has been used by the plaintiff and his antecessors for over 50 years, to reach the land of the plaintiff. As such, the plaintiff has acquired easementary right by way of prescription over the ‘suit way’. That except the ‘suit way’, there is no other alternate way available for the plaintiff to reach his land.

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That the defendants have caused unnecessary obstructions for the plaintiff in making use of the ‘suit way’. As such, he made a representation to Tahsildar on 11.07.2011. In turn, the Tahsildar directed the Revenue Inspector, Kuppelur to inspect disputed area and submit a report. The Revenue Inspector submitted a report showing the existence of the ‘suit way’. Since the defendants have caused obstruction to the plaintiff in making use of the ‘suit way’, the plaintiff has filed the suit seeking reliefs as noted above.

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Defendant Nos.1 to 5 appeared through their counsel. Defendant No.2 has filed written statement which

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is adopted by the other defendants. While denying the very existence of the ‘suit way’ as claimed by the plaintiff, it is specifically contended that, the land in RS No.27 is subdivided as RS No.27/1A/2 belonging to one Kudarihala Fakkirsab, who has not been arraigned as a party to the suit. It is further contended that, on the western side of the land in R.S No.28, the Government acquired an extent of 1 acre 5 guntas during the year 2005-06 for the purpose of construction of the Upper Tunga Channel. To protect the said channel, the Irrigation Department constructed a bund. Except the Irrigation Department, no other person has any right to pass through the said bund.

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It is further contented that there is a road to the

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plaintiff’s land towards its northern side, as seen in the village map, which runs in the East – West direction, connecting Kotihala – Holeanvery road. That the plaintiff has been using the said road for a long time to reach his land. The present suit has been filed by the plaintiff with the intention of creating a new road on the land belonging to

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the defendants, which never existed. Hence sought for dismissal of the suit.

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The Trial Court, based on the pleadings, framed

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the following issues:

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1. Whether the plaintiff proves that, there is a way shown by the letters EFGH in the hand sketch map annexed to the plaint and this is the only way to go to his land in R.S. No.27/2A?

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2. Whether the plaintiff proves that, he has ownership right over the said EFGH way by means of user of the said way continuously?

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3. Whether the plaintiff further proves obstruction by the defendants in user of the said EFGH way as alleged in the plaint?

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4. Whether the defendant proves existence of alternative way available to the plaintiff to go to the R.S. No.27/2A?

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5. Whether the plaintiff is entitled for declaration of ownership over the said EFGH way and for consequential injunction?

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6. What order of decree?

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Re-casted Issue No.2:- Whether plaintiff prove that, he has got easement right of way by way of prescription over ‘EFGH’ suit way as shown in hand sketch?

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Re-casted Issue No.5:- Whether plaintiff is entitled for easement right of way over suit way as prayed for in the plaint?

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Before the Trial Court, the plaintiff examined

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himself as PW1 and three other witnesses as PW2 to PW4.

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He also produced 53 documents, which were marked as Exhibits P1 to P53. Defendant No.5 examined himself as DW1 and two other witnesses as DW2 and DW3. He produced 20 documents, which were marked as Exhibits D1 to D20.

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On appreciation of the oral and documentary evidence, the Trial Court answered issue Nos.1, 2, 3 and 5 in the negative and issue No.4 in the affirmative, and accordingly dismissed the suit of the plaintiff.

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Being aggrieved by the judgment, the plaintiff preferred appeal in R.A. No.88/2015. The First Appellate Court, considering the grounds urged in the memorandum of appeal, framed the following points for its consideration:

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1. Whether the trial Court erred in holding that, plaintiff fails to show the existence of EFHG pathway?

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2. Whether the trial Court erred in holding that, plaintiffs fails to establish his right of way by prescription?

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3. Whether the appellant has made out sufficient grounds to allow I.A. No.4 under Order 26 Rule 9 of CPC?

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4. Whether trial Court erred in dismissing the suit of plaintiff?

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5. Whether the judgment and decree of the trial Court needs interference by this Court?

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6. What order or decree?

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On re-appreciation of the evidence, the First

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Appellate Court has answered point Nos.1 to 5 in the negative and, consequently, dismissed the appeal, thereby confirming the judgment and decree passed by the Trial Court.

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Being aggrieved by the concurrent findings and conclusions arrived at by the Trial Court and the First Appellate Court, the plaintiff is before this Court.

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Learned counsel for the appellant, reiterating the

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grounds urged in the memorandum of appeal, submits that the Trial Court and the First Appellate Court failed to consider the contents of the written statement, wherein the defendants admitted the existence of the Upper Tunga Water Channel by the western side of the road which is exclusively used by the Irrigation Department. He insists that the Trial Court and the First Appellate Court ought to have inferred that the plaintiff has been using the said road and take turn towards east to reach his land, through the ‘suit way’ and as shown in the hand sketch, for over 50 years. That this admitted piece of evidence has been ignored by both the Courts, resulting in perversity in the impugned judgments.

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He further submits that finding of the Trial Court and the First Appellate Court regarding existence of an alternative road for the plaintiff, is contrary to the material evidence made available on record, more particularly the report of the Revenue Inspector, who has confirmed the

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existence of the ‘suit way’ on the southern side of the lands belonging to the defendants, being used by the plaintiff and his ancestors since time immemorial. He further submits that the Trial Court and the First Appellate Court ought not to have placed undue reliance on the village map at Ex.D14 to come to the conclusion that there was no indication of the cart road existing in the properties of the defendants.

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That the First Appellate Court erred in rejecting the application filed by the plaintiff seeking the appointment of a Commissioner, which would have brought additional material evidence for the effective disposal of the dispute between the parties. Thus, he submits that nonconsideration of these aspects of the matter by the Trial Court and the First Appellate Court has given rise to substantial questions of law requiring adjudication at the hands of this Court.

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Heard and perused the records.

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Since there is no dispute with regard to the claim

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of the plaintiff as well as the defendants with regard to their ownership over the lands in R.S. No.27/2A, 28/1 and 28/2, respectively there is no need to delve into on that aspect of the matter.

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The plaintiff has specifically claimed and alleged that on the southern side of the lands belonging to defendants No.1 to 5, there exists a road measuring 10 feet in width and 200 meters in length, connecting the Lingadahalli – Holeanvery Channel road and his land in Sy.No.27/2A. The said road is marked as ‘EFHG’ in the hand sketch. In other words, the plaintiff is seeking declaration of he acquiring right of way by way of prescription over the aforesaid extent of land, forming part of the lands belonging to the defendants.

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In support of his pleadings and contentions, the plaintiff relies upon his application dated 11.07.2011, produced as Ex.P5, and the report of the Revenue Inspector dated 10.08.2011, produced as Ex.P6, which was submitted

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pursuant to the direction issued by the Tahsildar. The rest of the documents are the revenue records and the photographs.

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It is not uncommon that amidst agricultural lands there will be area earmarked for pathways (PÁ®ÄzÁj) and cart road (§ArzÁj) to be used as access and for agricultural

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purposes. Which is seen even in the present case as per the village map produced at Ex.D14. The plaintiff is however specifically claiming existence of ‘suit way’ having width of 10 ft. and length of 200 mtrs., on the southern end of the lands belonging to defendant Nos.1 to 5. Therefore, plaintiff is required to establish the same by leading cogent and acceptable evidence.

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A bare perusal of application at Ex.P5 would indicate that the plaintiff has contended that there was a

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pathway (NqÁqÀÄªÀ zÁj) running through the land in Sy.No.28 which was the only access to reach his land in Sy.No.27 and the same has been obstructed by the

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defendants. A report submitted by the Revenue Inspector as per Ex.P6 in response to the direction issued by the Tahsildar would indicate that the Revenue Inspector had visited the spot and enquired with the defendants who had indicated that they have no objection in plaintiff utilizing their land as pathway when there is no crops in their lands without causing any obstruction to the defendants. The Revenue Inspector in his report has specifically pointed out that there is no existence of road as claimed by the plaintiff in the lands of the defendants, providing access to the land of the plaintiff in Sy.No.27. Except these two documents, the plaintiff has not produced any other documentary evidence to indicate the existence of suit road/way measuring 10ft. X 200mtrs., as marked in the hand sketch by letters ‘GHEF’. Necessary also to note that th ough the plaintiff has given description of the pathway in the hand sketch with the measurement as 10ft., X 200 mtrs., there is no such mention/description in his application as per Ex.P5 made before the Tahsildar complaining obstruction.

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In the cross examination recorded on

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08.12.2014, the plaintiff has admitted that the defendants pass through south-western corner of their property.

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However, denied that there is no existence of the road as claimed by him. He also admitted that there is no document to justify his claim of defendant Nos.1 to 5 having provided the ‘suit way’.

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The Trial Court on appreciation of the oral and documentary evidence have found that the plaintiff has failed to prove the very existence of ‘suit way’. When the plaintiff has in the first instance failed to prove the existence of the ‘suit way’, the question of he acquiring the right by prescription over the same would not arise. This finding of facts based on the oral and documentary evidence is re-appreciated by the First Appellate Court which has concurred and confirmed with the reasoning in conclusion arrived by the Trial Court. This Court therefore do not see any reason to interfere with the factual finding and conclusion arrived at by the Trial Court and the First

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Appellate Court based on the evidence produced by the parties.

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As regards the existence of alternate way is concerned, the Trial Court while answering issue No.4, at paragraphs 35 and 36 has found that towards eastern side of land in R.S. No.27 there exist land in R.S. No.23. On the eastern side of the said land in R.S.No.23, there exist Kotihala-Lingadahalli road as seen in Ex.D14 village map and admittedly plaintiff pass from south to north and take turn in west – east direction to go to his land.

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In the light of the aforesaid evidence, the claim of the plaintiff with regard to existence of ‘suit way’ specifically measuring 10ft. X 200 mtr., not having been established, the appreciation of evidence, reasoning and conclusion arrived by the Trial Court resulting in dismissal of the suit and confirmed by the First Appellate Court cannot be found fault with. No substantial question of law

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