Smt Manjamma Vs Ramanna

RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 25.9.2013 PASSED IN R.A.NO.25/2013 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, SHIRA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 22.3.2013 PASSED IN OS.NO.111/2008 ON THE FILE OF CIVIL JUDGE AND JMFC, SIRA.

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

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NC: 2025:KHC:51780 RSA No. 1856 of 2013

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 25.09.2013 passed in R.A.No.25/2013 by the learned Senior Civil Judge and JMFC, at Sira.

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For convenience, the parties are referred to,

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based on their rankings before the trial Court. The appellant was the plaintiff, and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal, are as follows:

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The plaintiff filed a suit for a declaration to declare that he has right to use and enjoyment of pathway situated in Sy.Nos.18/1A and 18/1B to reach her land and permanent injunction regarding the suit schedule property.

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It is the case of the plaintiff that the plaintiff is the absolute owner and in possession of the suit schedule property. The same was purchased under a registered sale deed dated 30.11.1998. The vendor of the plaintiff also use the suit road to reach their land. After purchasing the suit schedule property, the plaintiff continued to use the suit road to reach her land. The vendor of the plaintiff and defendants belong to same family. It is contended that the suit schedule property and properties of the defendants were allotted to their share as per decree passed in O.S.No.312/1974. The vendor of the plaintiff had absolute right over the suit schedule property and enjoyment of the suit road. The plaintiff and the others were using the said cart road to transport the agricultural products. The said cart road is necessary for the plaintiff to approach his land. The defendants are intentionally trying to obstruct the plaintiff to use and enjoy the suit cart road. The defendants have no right to obstruct the plaintiff from using the said cart road. Hence, a cause of action arose for

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the plaintiff to file a suit for declaration and a permanent

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injunction. Accordingly, prays to decree the suit.

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3.1. The defendants filed a written statement

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denying the averments made in the plaint, except admitting the partition of their family properties in O.S.No.312/1974, it is contended that there is no way or road as alleged by the plaintiff in the plaint. The plaintiff is trying to create a new road in land Sy.Nos.18/1A and 18/B. Hence, prays to dismiss the suit.

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3.2. The Trial Court, based on the above said

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pleadings, framed the following issues:

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1) Whether the plaintiff proves that the suit schedule property shown as ABCD is the road and they are using the said road to ingress and egress and except ABCD road, she has no alternative road to go to her land?

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2) Whether the plaintiff further proves that the defendants are causing obstruction to her to use the said road?

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3) Whether the defendants prove that the suit schedule property is the joint family

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property of the defendants, Thimmakka and Lakshmamma?

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4) Whether the plaintiff is entitled for the relief as sought for?

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5) What order or decree?

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3.3. The plaintiff, to substantiate her case,

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examined herself as PW.1, examined two witnesses as PW.2 and PW.3, and marked 12 documents as Exs.P1 to P12. In rebuttal, defendant No.1 was examined as DW.1, examined two witnesses as DW.2 and DW.3, and marked one document as Ex.D1.

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3.4. The Trial Court, after recording the evidence of

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the parties, hearing both sides, and after assessing the verbal and documentary evidence, answered issue Nos.1, 2 and 4 in the affirmative, issue No.3 in the negative and

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issue No.5 as per the final order. The suit of the plaintiff was decreed vide judgment dated 22.03.2013. It was declared that there is pathway on the western side bund is land Sy.No.18/1A and 18/1B and plaintiff has every right

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to use and enjoyment of said pathway to approach her

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land and form house and the defendants were permanently restrained from having obstruction to use pathway.

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3.5. The legal representatives of defendant Nos.1

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and 2, aggrieved by the judgment and decree passed in O.S.No.111/2008 preferred an appeal in R.A.No.25/2013 on the file of the Learned Senior Civil Judge and JMFC, Sira.

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3.6. The First Appellate Court, after hearing the

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learned counsel for the parties, framed the following points for consideration:

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1) Whether the judgment and decree passed by the trial Court is erroneous, illegal and opposed to law?

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2) Whether the judgment and decree calls for my interference?

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3.7. The First Appellate Court, on hearing the parties

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and after re-appreciating the verbal and documentary evidence, answered point Nos.1 and 2 in the affirmative. The First Appellate Court allowed the appeal vide judgment dated 25.09.2013 and set aside the judgment and decree passed in O.S.No.111/2008, and consequently, dismissed the suit of the plaintiff.

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3.8. The plaintiff, aggrieved by the judgment and

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decree passed in R.A.No.25/2013, filed this Regular Second Appeal.

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This Court, on 13.02.2020, admitted the appeal to consider the following substantial question of law:

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1) Whether the First Appellate Court committed an error in over turning the judgment and decree of the trial Court?

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Whether the plaintiff had any other alternate way to access her suit property than through making a claim against the property of the defendant?

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Heard the arguments of the learned counsel for

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the plaintiff, and also the learned counsel for the defendants.

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6. Learned counsel for the plaintiff submits that,

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originally the suit land belonged to one tenement and in the partition, the properties were divided, and the suit road is the only road to the plaintiff to approach her land. The plaintiff has no other alternative way to approach to her land. He submits that the First Appellate Court without considering the said aspect has proceeded to pass the impugned judgment. Hence, on these grounds, he prays to allow the appeal.

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7. Per contra , learned counsel for the defendants

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submits that, during the pendency of this appeal, the plaintiff had purchased the land bearing Sy.No.14. He submits that, in view of subsequent event, the plaintiff has got a way to approach to her land through Sy.No.14/6. In

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view of the property purchased by the plaintiff, the appeal

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may not survive for consideration. Hence, on these

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grounds, he prays to dismiss the appeal.

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Perused the records, and considered the

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submissions of the learned counsel for the parties.

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Reg. Substantial Question of Law

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Nos.1 & 2 : Substantial question of law Nos.1 and 2 are interlinked with each other, and they are taken together for common discussion to avoid the repetition of facts.

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The plaintiff, to substantiate her case, examined herself as PW1. She reiterated the plaint averments in the examination-in-chief and produced the documents Exs.P1 to P12 to show that the plaintiff is the absolute owner of the land bearing Sy.No.18/1A, and there is a cart road leading from Balabasavanahalli to Brahmasandra and the plaintiff had no other cart way

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except the said cart way, and the defendants have no right, title or interest over the said cart way. The plaintiff has a right of easement of necessity. During the crossexamination. It is suggested to PW.1 that the plaintiff has got an alternative way. The said suggestion was denied by PW1. The plaintiff also examined two witnesses to prove the possession of the plaintiff over the suit schedule property.

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In rebuttal, defendant No.1 was examined as DW1. He reiterated the written statement averments in the examination-in-chief stating that there is no cart way in Sy.No.18/1B and the plaintiff has got an alternative way to approach her land and to prove that there is no cart way as alleged by the plaintiff, produced a certified copy of village map marked as Ex.D1. During cross-examination, the defendant has denied that there is a pathway in land in Sy.No.18/1B. The defendant also examined two witnesses as DW2 and DW3.

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From the perusal of the entire evidence on record, the defendants have produced village map marked as Ex.D1, which discloses that there is no cart way in Sy.No.18/1B as contended by the plaintiff. The plaintiff except the oral testimony, has not produced any other records to establish that there exists a cart way in Sy.No.18/1B. The First Appellate Court, considering the entire evidence on record has recorded its finding that the plaintiff has failed to establish that there exists a cart way in the land bearing Sy.No.18/1B owned and possessed by the defendants. The First Appellate Court placed reliance on the judgment of this Court in the case of P.M.S. AND

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CO. VS, THE STATE OF MADRAs reported in (1969) 1 MLJ 226, and rightly held that the plaintiff has failed to establish that there exists a pathway in the land bearing Sy.No.18/1B.

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Learned counsel for the defendants has filed a memo stating that, during the pendency of this appeal,

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the plaintiff has purchased the land bearing Sy.No.14/6 measuring 1 acre, 6 guntas situated at Kagalinganahalli Village, and the plaintiff can approach the land bearing Sy.No.18/1A through the land Sy.No.14/6 and the said fact has not been denied by the plaintiff that the plaintiff has purchased the land bearing Sy.No.14/6 during the pendency of this appeal, and the plaintiff can approach her land through Sy.No.14/6. In view of the above discussion, I answer substantial question of law Nos.1 and 2 in the negative, and substantial question of law No.2 in the affirmative.

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