Padmavathamma Vs S R Srinivas

THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD 02.11.2018 PASSED IN RA.NO.62/2015, ON THE FILE OF THE SENIOR CIVIL JUDGE, KADUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:01.09.2015 PASSED IN OS.NO.402/2011 ON THE FILE OF THE II ADDL.CIVIL JUDGE AND JMFC., KADUR.

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

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CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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This is defendants' second appeal.

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The plaintiff filed the suit for permanent injunction to

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restrain the defendants from interfering, obstructing and trespassing over the suit 'A' schedule property and restrain

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NC: 2025:KHC:43780 RSA No. 269 of 2019

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HC-KAR

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the defendants from closing suit 'B' schedule road which the plaintiff is using to reach the suit 'A' schedule property.

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The case of the plaintiff is that, the suit schedule property in an ancestral property. In the year 1963, the suit schedule property was divided between S.B. Nanjundappa and his brother-S.B Nagaraj i.e. the husband of defendant No.1 and father of defendant No.2 under a registered Partition Deed dated 29.01.1963, wherein Sy.No.500/3C was allotted to S.B.Nagaraj and Sy.No.500/3B to S.B.Nanjundappa and further, it was specifically mentioned in the said Partition Deed, a 15feet-wide road in Sy.No.500/3C has to be provided as access to Sy.No.500/3B and the aforesaid S.B.Nagaraj never objected the peaceful use of the said road i.e. 'B' schedule road during his life time.

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Later, on 22.06.1998, there was a Partition Deed executed among S.B.Nanjundappa’s sons, wherein the suit schedule property fallen to the share of S.N.Basavaraj.

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HC-KAR

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The plaintiff purchased the same from said S.N. Basavaraj by way of registered Sale Deed dated 24.09.2010. The suit schedule property has no access except through the ‘B’schedule road. The defendants, being the owners of adjacent lands in Sy.No.500/3A, have no right over the plaintiff’s property or the access road. However, on 24.08.2011, they attempted to block the ‘B’-schedule road with barbed wire. The plaintiff lodged a Police complaint, but the Police had advised them to seek civil remedies before the Civil Court. Therefore, left with no other option the plaintiff has filed the suit.

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However, the said aspect was denied by the defendants in their written statement stating that there is no other way to reach suit 'A' schedule except the road suit 'B' schedule and they have not closed the suit 'B' schedule road, which is the access to the suit 'A' schedule.

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The Trial Court, after framing relevant issues and after considering the evidence and documents placed on record by both the parties, has recorded a finding that

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HC-KAR

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Ex.P5 - Partition Deed relied by the plaintiff depicts that, there is existence of pathway between the suit 'A' schedule property backyard. In such circumstance, it is clear that there existed a road to access suit 'A' schedule property. The defendants, being the adjacent land owners, obstructed the plaintiff by closing 'B' schedule road by fencing it with barbed wire. The title and possession of the plaintiff in respect of suit 'A' schedule property is not seriously disputed by the defendants. Accordingly, the Trial Court decreed the suit in favour of the plaintiff.

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On appeal by the defendants, the First Appellate Court, on re-appreciation of evidence on record, concurred with the findings of the Trial Court by observing that DW.2 in his cross examination has categorically admitted the existence of road between the plaintiff's and defendants' property i.e. 'B' schedule road and also interference with the same by the defendants. Accordingly, the Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the Trial Court.

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6 - NC: 2025:KHC:43780 RSA No. 269 of 2019

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HC-KAR

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Having heard the learned counsel for the respective

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and having perused the documents placed before me, the only substantial question of law that would arise in this appeal is:

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Whether the Trial Court and First Appellate Court are justified in deciding the existence of 15 feet suit 'B' schedule road in the backyard of suit 'A' schedule property?

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As could be gathered from records, the defendants have not disputed the title and possession of the plaintiff in respect of suit 'A' schedule property. Nevertheless, on perusal of the evidence of DW.2, it is clear that there exist a road/pathway in the backyard of suit 'A' schedule property to ingress and egress to the same. However, the plaintiff has not produced any documents to show that the width of the said road/pathway is 15 feet. I have perused the photographs and other documents which depicts that the suit 'B' schedule road is in between the areca plants standing in the suit 'A' schedule property and the

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HC-KAR

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defendants' property. Further, it is to be noted that there is no other access to the plaintiff to ingress or egress to the suit 'A' schedule property. At the same time, it could be gathered that suit 'B' schedule road is only meant for the ingress or egress of the plaintiff to suit 'A' schedule property and the maximum width of the said road is only to the extent of 10 feet instead 15 feet as claimed by the plaintiff. However, since the said road runs in the arecanut garden, the Trial Court and First Appellate Court are not justified in restraining the defendants from closing suit 'B' schedule road to an extent of 15 feet. Accordingly, the judgment and decree passed by the Trial Court and First Appellate Court are liable to be modified. In that view of the matter, I answer the aforementioned substantial question of law in the "negative". Accordingly, I proceed to pass the following:

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ORDER

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The second appeal is allowed in part.

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NC: 2025:KHC:43780 RSA No. 269 of 2019

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HC-KAR

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The impugned judgments and decrees passed by the Trial Court and the First Appellate Court is modified granting permanent injunction restraining the defendants from closing suit 'B' schedule road/property which is used by the plaintiff to reach suit 'A' schedule property to an extent of 10 feet instead of 15 feet.

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SD/(RAJESH RAI K) JUDGE

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PKS List No.: 1 Sl No.: 28

Padmavathamma v. S R Srinivas

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Padmavathamma v. S R Srinivas

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