Sri. Byanna (Dead) Vs Nelagethlaa Boraiah

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NC: 2025:KHC:10737 RSA No. 655 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 655 OF 2016 (DEC/INJ)

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BETWEEN:

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SRI. BYANNA (DEAD) S/O BADAGI, SANNA SURAIAH, AGED ABOUT 85 YEARS, OCC: AGRICULTURE, R/O BACHABORANAHATTI VILLAGE, TURUVANUR HOBLI 577 501, CHITRADURGA TALUK AND DISTRICT.

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SINCE DEAD REPRESENTED BY HIS LRS

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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1(A). SMT. OBAMMA, W/O LATE BYANNA, AGED ABOUT 80 YEARS.

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1(B). SRI G.B.PALAIAH, S/O LATE BYANNA, AGED ABOUT 54 YEARS.

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1(C). SRI. G.B.PRAKASH, S/O LATE BYANNA, AGED ABOUT 52 YEARS.

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1(D). SRI. G.B.BORIAH, S/O LATE BYANNA, AGED ABOUT 50 YEARS.

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1(E). SRI. G.B.NAGABUSHANA,

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NC: 2025:KHC:10737 RSA No. 655 of 2016

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S/O LATE BYANNA, AGED ABOUT 48 YEARS.

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1(F). SRI. G.B. VISHVANATH, S/O LATE BYANNA, AGED ABOUT 46 YEARS.

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ALL ARE R/AT BACHABORANAHATTI VILLAGE, TURUVANUR HOBLI, CHITRADURGA TALUK AND DISTRICT

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…APPELLANTS

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(BY SRI. KRISHNAMURTHY M.R., ADVOCATE)

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AND:

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NELAGETHLAA BORAIAH, S/O. KIVADU JOGANNA, AGED ABOUT 62 YEARS, OCC: AGRICULTURE, R/O BACHBORANAHATTI VILLAGE, TURUVANUR HOBLI, CHITRADURGA TALUK AND DISTRICT 577 501.

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…RESPONDENT

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(BY SRI. B.M. SIDDAPPA, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.12.2015 PASSED IN RA NO.12/2015 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND JMFC., CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 01.04.2015 PASSED IN OS NO.495/2009 ON THE FILE OF THE II ADDL. CIVIL JUDGE AND JMFC., CHITRADURGA.

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NC: 2025:KHC:10737 RSA No. 655 of 2016

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

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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 17.12.2015 passed in R.A.No.12/2015 by the Second Additional Senior Civil Judge and JMFC, Chitradurga.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the plaintiff, and the respondent was the defendant.

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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 against the defendant for relief of declaration and permanent injection to declare that the plaintiff has an easement of necessity in the land of the defendant for better enjoyment of the plaintiff’s suit

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schedule properties to pass through the land of the defendant to go to the plaintiff’s suit land. It is contented that the plaintiff is the owner in possession of land bearing Sy.No.532/1p1 measuring 2 acres 4 guntas + 12 guntas of Hallad kharab land and Sy.No.532/3p1 measuring 3 acres 5 guntas of Dyamavvanahalli village in Chitradurga Taluk.

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The plaintiff acquires the suit schedule properties under registered partition deed dated 05.02.1976 which is effected between the plaintiff and his younger brother Sooraiah. In the said partition the suit schedule properties fell to the plaintiff's share. Since the date of partition, the plaintiff is in possession and enjoyment of the suit schedule properties.

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The plaintiff's younger brother Sooraiah, got 2 acres 4 guntas in Sy.No.532/1, now phoded as Sy.No.532/1p2 measuring 2 acres 4 guntas. The defendant purchased the suit land under registered sale deed from the wife and sons of the deceased, plaintiff's younger brother - Sooraiah. The defendant is in

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possession of land bearing Sy.No.532/1p2. The plaintiff and defendant are the permanent residents of Bachboranahatti, Turuvanur Hobli, Chitradurga Taluk and District. Though, the properties are situated in Dyamavvanahalli area, Chitradurga, the distance between the suit properties and the village is about one kilometre.

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The land of the plaintiff bearing Sy.No.532/1p1 measuring 2 acres 4 guntas situated at Dyamavvanahalli village, towards the southern side adjacent to Dyamavvanahalli Tank Bund. The land of the defendant bearing Sy.No.532/1p2 measuring 2 acres 4 guntas is situated on the northern side of the land of the plaintiff. It is contended that the plaintiff has the right of easements of necessity in the land of the defendant for the better enjoyment of the suit schedule property. It is contended that plaintiff has dominant heritage in the land of the defendant. The said way is necessary to enjoy the suit lands of the plaintiff to cultivate the suit schedule property. It is contended that, the said right is embodied

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in the partition deed itself. The defendant is obstructing the enjoyment of the right of easement of necessity in the land of the defendant. Hence, the plaintiff was constrained to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit.

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The defendant filed a written statement denying the averments made in the plaint. It is contended that the plaintiff had already filed the suit in O.S.No.72/2000, for the relief of declaration and injunction against the defendant alleging that he has no right of way, and the defendant had filed a counter claim praying for permanent injunction restraining the plaintiff from interfering with easement right by way of necessity and dismissed the suit held that the defendant is entitled to the right of easement and the same was confirmed in the judgment passed in R.A.No.40/2006 and accordingly, sought for the dismissal of the suit.

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The trial Court, based on the pleadings of the parties, framed the following issues.

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ISSUES

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Whether the plaintiff proves that he is owners in possession and enjoyment of suit schedule property as pleaded in the plaint?

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Whether the plaintiff is entitled for declaratory reliefs as sought for?

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Whether the plaintiff is entitled for grant of permanent injunction?

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Whether the suit is bad for mis-joinder of necessary parties?

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Whether the suit is hit by the principles of constructive res-judicate?

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Whether the court fee paid is incorrect, insufficient?

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What decree or order?

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Additional Issue No.1

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Whether the plaintiff proves easement of necessity as prayed in the plaint under section 13(e) of Easement Act?

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The plaintiff, to substantiate his case, examined

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himself as PW1. He reiterated the plaint averments in his examination in chief, and marked 11 documents as Ex.P1 to Ex.P11. On the other hand, the defendant examined

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himself as DW1, and marked 23 documents as Ex.D1 to Ex.D23.

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The trial Court, after recording the evidence, hearing on both sides, and on the assessment of both oral and documentary evidence, answered issue Nos.1 to 3 and additional issue no.1 in the affirmative, Issue No.4 and 6 in the negative, Issue No.5 already decided and Issue No.7 as per the final order. The suit of the plaintiff was decreed vide judgment dated 01.04.2015. It is ordered that the plaintiff is having the easement of necessity through the land of the defendant for better cultivation of land and also to carry the manure and other agricultural implements, cattle, cart etc., and it is ordered that the defendants, their men, agents are restrained to interfere with the enjoyment of the said way by way of granting a permanent injunction.

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The defendant, aggrieved by the judgment and decree passed in O.S.No.495/2009 preferred an appeal in R.A.No.12/2015 on the file of Learned II Additional Senior

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Civil Judge and JMFC, Chitradurga. The First appellate Court, after hearing the learned counsel for the parties,

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framed the following points for consideration.

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Whether the impugned judgment and decree passed by the trial court is opposed to law, facts and probabilities?

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Whether the appellant/defendant made out sufficient grounds to interfere with the judgment and decree of the trial Court?

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Whether the appellant/defendant made out that the suit in O.S.No.495/2009 hit by principles of resjudicata?

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4.What order?

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The First appellate Court, on re-assessment of material available on record, answered point Nos.1 and 2 in the affirmative, Point No.3 in the negative and Point No.4 as per the final order. The appeal was allowed with cost vide judgment dated 17.12.2015. The judgment and decree passed by the trial Court was set aside. Consequently, the suit of the plaintiff was dismissed. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.12/2015, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for

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the plaintiff and defendant.

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Learned counsel for the plaintiff submits that, the First appellate Court mainly relied on the judgment and decree passed in O.S.No.72/2000, and allowed the appeal, dismissing the plaintiff's suit. He submits that the subject matter of the suit property in O.S.No.72/2000 is different from one claimed in the present suit. He submits that, in O.S.No.72/2000, the defendant has claimed the right of easement in the land of the plaintiff, and in the instant case, the plaintiff is claiming the right of easement in the land of the defendant. The First Appellate Court committed an error in placing reliance on the judgment passed in O.S.No.72/2000.

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He submits that, the entire judgment passed by the First Appellate Court is based on the judgment and decree passed in O.S.No.72/2000 without considering the subject matter of the properties, which are different. He submits that the First Appellate Court has not correctly re-

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appreciated the evidence on record. He submits that the matter requires reconsideration by the First appellate Court. Hence, the judgment and decree passed by the First Appellate Court is arbitrary, and erroneous, and the same is liable to be set aside. Accordingly, he prays to allow the appeal.

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Per contra, the learned counsel for the defendant supported the impugned judgment, and contended that the First appellate Court was justified in considering the judgment passed in O.S.No.72/2000, and the judgment and decree passed in O.S.No.72/2000 was confirmed by the appellate Court in R.A.No.40/2006. He submits that, the judgment passed by the First Appellate Court is just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.

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This Court admitted the appeal, to consider the following Substantial Questions of Law.

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"Whether the plaintiff proves that the First Appellate Court without re-appreciating the entire evidence on record has dismissed the suit on the ground that the suit in O.S.No.72/2000 was dismissed and not in compliance of Order XL Rule 31 of CPC ?"

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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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The plaintiff to substantiate his case, examined himself as PW1. He deposed that, the plaintiff, and his brother partition the joint family property, and in the said partition, the suit schedule property fell to the share of the plaintiff, and the property purchased by the defendant fell to the share of his brother Sooraiah. Wife and children of Sooraiah sold the property bearing No. Sy.No.532/1p2 in favour of defendant, though, the plaintiff has filed the suit in O.S.No.72/2000 for declaration, the defendant have the right of easement in the land of the plaintiff. The said suit was dismissed and the plaintiff, aggrieved by the judgment and decree passed in O.S.No.72/2000 preferred

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an appeal in R.A.No.40/2006, the said appeal was dismissed.

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After dismissal of the suit, the present plaintiff filed a suit for declaration, that the plaintiff has the right of easement of necessity in the land of the defendant. It is contended that the plaintiff has no other way to approach except filing the suit.

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To prove the partition was effected, between the plaintiff and his younger brother Sooraiah, he has produced the documents, Ex.P1 to Ex.P5 are the RTC extracts. Ex.P6 is the certified copy of the partition deed, which discloses that the partition was effected between the plaintiff and his younger brother Sooraiah, and in the said partition the suit schedule property fell to the share of the plaintiff, and the property purchased by the defendant fell to the share of Sooraiah. After the demise of Sooraiah, wife and children of Sooraiah sold the land in Sy.No.532/1p2 in favour of defendant. Ex.P7 is the Patta book. Ex.P8 is the copy of the memo, Ex.P9 is the copy of

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the sketch. Ex.P10 is the negatives and Ex.P11 is the sketch (certified copy).

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During the course of cross examination, it was suggested that, the plaintiff filed the suit in O.S.No.72/2000 against the defendant, and the said suit was partly decreed and the judgment and decree passed by the trial Court was confirmed in R.A.No.40/2006. The said suggestion was admitted by PW1. It is also denied that there is no alleged way, as claimed by the plaintiff, in the land of the defendant. It is contended by the defendant that the plaintiff has no right to enter the land of the defendant. Further, the defendant to prove his defence, produced the documents.

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Ex.D1 is the certified copy of the plaint in O.S.No.72/2000. The plaintiff filed the suit in O.S.No.72/2000 for declaration and injunction and the defendant had filed counter claim praying for permanent injunction restraining the plaintiff from interfering with easement right by way of necessity. Ex.D2 is the certified

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copy of the written statement filed by the defendant herein in O.S.No.72/2000. Ex.D3 is the deposition of Bayyanna in O.S.No.72/2000. Ex.D4 and Ex.D5 are the certified copies of the judgment and decree passed in O.S.No.72/2000. Ex.D6 and Ex.D7 are the certified copies of the judgment and decree passed in R.A.No.40/2006. Ex.D8 is the certified copy of the Sale deed executed by the LR’s of deceased Sooriah in favour of the defendant. Ex.D9 and Ex.D10 are the RTC extracts that disclose that the defendant owns the land bearing No.532/1p2. Ex.P11 is the patta receipt. Ex.P12 to Ex.P14 are the receipts and photos. Ex.P15 to Ex.P20 are the photographs and CD. Ex.P22 is the index of land and Ex.P23 is the Akar band.

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From the perusal of the certified copy of the partition deed Ex.P6, which discloses that, the plaintiff and his younger brother Sooraiah have orally partitioned their family properties and enjoying their respective shares, and further, from the recital of the partition deed, it shows the existence of a way to meet their respective lands. The

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plaintiff before the filing of an instant suit, filed the suit in O.S.No.72/2000, and the defendant had filed a counter claim praying for a permanent injunction restraining the plaintiff from interfering with easement right by way of necessity. The said suit was partly decreed vide judgment dated 22.07.2006. The plaintiff herein, aggrieved by the judgment and decree passed in O.S.No.72/2000 preferred an appeal in R.A.No.40/2006 on the file of Additional District and Sessions Judge, Chitradurga. The appellate Court dismissed the appeal filed by the plaintiff on 03.09.2009. The subject matter of the property involved in O.S.No.72/2000 is different from, one of the suit properties involved in the present suit. The First Appellate Court without considering the said aspect, has considered the judgment and decree passed in O.S.No.72/2000 and dismissed the appeal holding that, the plaintiff cannot contend that his right of easement by way of necessity, through the land of the defendant. The appellate Court has not adequately considered the recital of the partition deed as per Ex.P6. The First Appellate Court dismissed the suit,

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only on the ground that the suit filed by the defendant in O.S.No.72/2000 was partly decreed and the same was confirmed by the appellate Court in R.A.No.40/2006. The appellate Court, being the last fact finding Court, is required to re-appreciate the entire evidence on record.

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From the perusal of the judgment passed by the First appellate Court, the First appellate Court except considering the judgment passed in O.S.No.72/2000, has passed the impugned judgment without re-appreciating the entire evidence on record. The judgment passed by the appellate Court did not comply with order 41 rule 31 of CPC. Further, the appellate Court has not properly framed the points for consideration, and has not answered all the issues framed by the Trial Court. Thus, the matter requires reconsideration by the First Appellate Court.

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In view of the above discussions, I answer the Substantial Question of Law in the affirmative.

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Accordingly, I proceed to pass the following

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order.

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ORDER

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1. The Appeal is allowed.

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The judgment and decree passed in R.A.12/2015 dated 07.12.2015, by the learned Second Additional Senior Civil Judge, and JMFC, Chitradurga, is set aside.

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