Rudrappa Gowda Vs Manjappa

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.12.2012 PASSED IN R.A.NO.10/2010 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE & JMFC, SAGAR, PARTLY ALLOWING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.1.2010 PASSED IN OS.NO.111/2006 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC, HOSANAGAR AND ETC.

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THIS APPEAL, COMING ON FOR REPORTING SETTLEMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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Heard the learned counsel appearing for the appellant and the respondents.

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This Regular Second Appeal is arising from the judgment and decree dated 07.01.2010 in O.S.No.111/2006 on the file of Civil Judge (Jn.Dn.) at Hosanagar and judgment and decree dated 15.12.2012 in R.A.No.10/2010 on the file of the Additional Senior Civil Judge and JMFC, Sagar.

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The suit of the plaintiff was for bare injunction in respect of property bearing Survey No.66 measuring 2 acres 20

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NC: 2026:KHC:8928 RSA No. 513 of 2013

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HC-KAR

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guntas and also in respect of a residential house bearing door No.37 located in M-Guddeoppa Grama Panchayath, Varakodu Village, Kasaba Hobli, Hosanagara Taluk. The defendants raised the contention that there is a cart road in Survey No.66 and that road leads to their house and the garden land.

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The Trial Court framed following three issues:

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"��ಾ�ಾಂಶಗಳ�

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"1. �ಾ�ಾ ��ಾಂಕದಂದು �ಾ�ಯು �ಾನು �ಾ�ಾ �ೆಡೂ�� ಸ��ನ �ಾ��ೕ�ಾನುಭವದ"#�ೆ$ ಎಂದು �ಾ�ಯು ರುಜು�ಾತುಪ*ಸುವ�ೆ?

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ಪ+��ಾ�ಯರು �ಾ�ಯ �ಾ��ೕ�ಾನುಭವ,ೆ- ಆತಂಕ ಪ*/ದರು ಎಂದು �ಾ�ಯು ರುಜು�ಾತುಪ*ಸುವ�ೇ?

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3. �ಾ�ಯು�ಾ�ೆಯ"#,ೋ0ದಪ01ಾರವನು2 ಪ3ೆಯಲುಅಹ7�ೇ ?

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4. ಏನುಆ�ೇಶಅಥ�ಾ*:+ ?."

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The suit came to be decreed by the Trial Court. The

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defendants filed an appeal and along with the appeal, they also filed an application under Order XLI Rule 27 of the Code of Civil Procedure. The Appellate Court in terms of the impugned judgment has allowed the appeal in part and judgment and decree passed by the Trial Court are modified. However, I.A.No.V filed under Order XLI Rule 27 of the Code of Civil Procedure by the defendants is dismissed.

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NC: 2026:KHC:8928 RSA No. 513 of 2013

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HC-KAR

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The operative portion of the order passed by the Appellate Court, which has modified the judgment and decree passed by the trial Court reads as under:

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" Permanent injunction granted by the Trial Court does not affect in any way the possession of the defendants in the portion of the house in the suit land and also their right to use the way which proceeds to the house and also the way which proceeds to their lands from the house."

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As can be noticed from the aforementioned decree

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passed by the First Appellate Court, it is evident that the First Appellate Court has recognized the right of the defendants in respect of the alleged cart road in the suit property to reach the house of the defendants and also the garden land of the defendants. However can be noticed, there is no mention about the width and length of the alleged road. The contours of the said road are also not forthcoming, as both parties did not file any sketch relating to the existence or otherwise of the said road. Admittedly, the Court Commissioner was not appointed by the Trial Court or the First Appellate Court.

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NC: 2026:KHC:8928 RSA No. 513 of 2013

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HC-KAR

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As already noticed there is no issue relating to the existence or otherwise of the cart road claimed by the defendants. However, the First Appellate Court it appears based on some available on the record has inferred that the road is in existence and the defendants have right to use the said road.

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This appeal was admitted on 24.03.2017 to answer

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the following substantial questions of law:

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"(a) Whether the first appellate court was right in allowing the appeal filed by the defendant and setting aside the judgment and decree passed by the trial court consequently dismissing the suit of the plaintiff with the observation that permanent injunction granted by the trial court does not affect in any way the possession of defendants in the portion of the house in the suit land and also their right to use the way which proceeds to the house and also the way which proceeds to their lands from the house?

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b) And to consider any other substantial questions of law which may arise for consideration while hearing the appeal."

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On perusal of the judgment and decree passed by

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the Trial Court, it is explicitly clear that there is no issue framed relating to the existence of the alleged road as contended by

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6 - NC: 2026:KHC:8928 RSA No. 513 of 2013

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HC-KAR

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the defendants. The parties' attention is not focused on the said contentions, though the parties might have led some evidence in support of their case based on their own understanding. The plaintiff has disputed the existence and raised a contention that the road is formed during the pendency of the proceeding.

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This Court is of the view that when the First Appellate Court granted a decree holding that there is a road to reach the house of the defendants and the garden land of the defendants, there ought to have been a specific issue relating to the existence or otherwise of the road and the right to use the said road.

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Unfortunately, the said issue was not framed and in the absence of any specific issue and in the absence of any specific evidence relating to the length and width of the alleged road, the finding is recorded. The Court finds that such an exercise could not have been done by the First Appellate Court.

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Under these circumstances, this Court is of the view that the judgment and decree passed by the First Appellate Court will have to be set aside. The matter has to be remanded to the Trial Court with a direction to frame following two issues:

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NC: 2026:KHC:8928 RSA No. 513 of 2013

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HC-KAR

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"i) Whether the defendants establish the existence of the road in the suit property to reach the house and the garden land belonging to the defendants?.

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ii) If so, Whether the defendants establish the right to use the said road?."

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Since the specific defence relating to the length and width of the road is not raised, this Court is of the view that Court Commissioner is to be appointed to ascertain the factual position relating to the suit property. Both the parties are at liberty to put queries to the Court Commissioner. The Court Commissioner shall submit the report and both parties are also permitted to lead evidence in addition to the evidence already led.

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While appointing the Court Commissioner to the extent possible, the Court shall follow the guidelines in the case

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of Sri.Shadaksharappa vs. Kumari Vijayalakshmi and Others¹ .

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It is made clear that this Court has not expressed any opinion on the merits of the matter relating to the existence or otherwise or the nature of the right to use the

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1 ILR 2023 KAR 3983

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NC: 2026:KHC:8928 RSA No. 513 of 2013

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HC-KAR

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alleged road. The said contentions are kept open to be decided by the trial Court.

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Learned counsel for the appellant submits that when the suit was filed, the road was not in existence and it was formed later in the guise of executing a decree in O.S.No.518/1989 in Execution Case No.5/2010. It is also brought to the notice of this Court that order passed in execution proceedings was subject matter of Writ Petition No.38080/2010 and the Writ Petition was disposed of on 22.02.2013. It is his contention that the road was formed later and not when the suit was filed.

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Learned counsel for the defendants would urge that the road was in existence much earlier to the filing of the suit. The Court has noticed the order dated 22.02.2013, in the said order, the Court has not recorded any finding as to the existence or otherwise of the alleged road. The Court has only said that the road was not the subject matter of the suit in O.S.No.518/1989. Under these circumstances, the following order is passed:

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NC: 2026:KHC:8928 RSA No. 513 of 2013

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HC-KAR

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ORDER

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(i) The appeal is allowed in part .

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(ii) The matter is remanded to the Trial Court.

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(iii) Whether the road existed as on the date of the suit or whether it was formed later has to be considered by the Trial Court, on the pleadings in case, if any, filed by way of an amendment, by both the parties.

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(iv) The parties shall appear before the Trial Court on 23.03.2026 without any further notice from the Trial Court.

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(v) The parties shall also co-operate for early disposal of the subject matter .

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Sd/-

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(ANANT RAMANATH HEGDE) JUDGE

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BKN/List No.: 1 Sl No.: 56

Rudrappa Gowda v. Manjappa

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Rudrappa Gowda v. Manjappa

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