D. R. Shakunthalamma Vs H. Hanumantharaju

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 21.01.2025 PASSED IN RA.NO.108/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, PAVAGADA AND THE JUDGMENT AND DECREE DATED 10.10.2019 PASSED IN OS.NO.744/2012 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, PAVAGADA.

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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 PRADEEP SINGH YERUR

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HC-KAR

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ORAL JUDGMENT

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This appeal is preferred by the defendants

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challenging the judgment and decree dated 21.01.2025 passed in R.A.No.108/2019 by the Senior Civil Judge and

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JMFC, Pavagada, confirming the judgment and decree dated 10.10.2019 passed in O.S.No.744/2012 by the Additional Civil Judge and JMFC, Pavagada, wherein suit came to be decreed in favour of respondents-plaintiffs.

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Parties shall be referred to as per their ranking before the trial Court.

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Brief facts of the case are as under:

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The plaintiffs filed a suit against the defendants

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seeking relief of declaration and permanent injunction in respect of an easementary right of way over the suit schedule property.

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3.1 It is the case of the plaintiffs that they are the absolute owners in possession and enjoyment of the lands bearing survey Nos.16/3 and 16/4 of Bellibatlu Village and

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that the defendants are the absolute owners of the land

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bearing survey No.42 of Shylapura Village. It is stated that the said lands are adjacent to each other, with survey Nos.16/3 and 16/4 situated on the northern side of survey No.42. It is further stated that an AB cart track originating from the Shylapura–Bellibatlu Main Road passes through survey No.40 and thereafter, through survey No.42, thereby providing access to the plaintiffs’ land. Hence, the plaintiffs filed a suit against the defendants.

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3.2 Upon summons being issued in the suit to the defendants, the defendants appeared and filed their written statement, denying the averments made by the plaintiffs, including the existence of any cart track leading to the suit schedule property. The defendants pleaded that the cart track ends in survey No.40 and does not extend any further. It was also pleaded that an AB cart track is an exclusive right granted to the defendants for access to their land. Hence, the defendants sought dismissal of the suit.

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3.3 On the basis of the pleadings and rival

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contentions made by both the parties, the trial Court framed the following issues for consideration:

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"1. Whether the plaintiffs prove that the suit AB cart track is existed as shown in the hand sketch. If so whether the plaintiffs have got right of easement of necessity over the AB cart tack?

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2. Whether the defendants prove that, there is a alternative cart tack existed in land Sy.No.16/1 and 16/2 belongs to the vendor of plaintiff and one Shanivarappa to reach the lands of plaintiffs?

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3. Whether the plaintiffs prove the alleged interference of the defendants as contended?

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4. What order or decree?”

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3.4 In order to substantiate the issues and to establish the case, plaintiff No.1-Hanumantharaju examined himself as PW.1 and another witness as PW.2

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and got marked 9 documents as per Exs.P1 to P9. Whereas, defendant No.2 examined himself as DW.1 and another witness as DW.2 and got marked 14 documents as per Exs.D1 to D14 and D14(a).

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3.5 Based on the materials placed on record, both

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oral and documentary and the arguments advanced by the learned counsels for both parties, the trial Court, having duly appreciated the materials on record, accepted the contentions of the plaintiffs and rejected those of the defendants. The trial Court came to the conclusion that there was sufficient material to establish the existence of an AB cart track providing access to the plaintiffs’ land through the defendants’ property, namely survey No.42, leading to the suit schedule property. Accordingly, the suit was decreed in favour of the plaintiffs and the defendants were restrained from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. The trial Court further granted the plaintiffs an easementary right of way over the AB cart track to reach survey Nos.16/3 and 16/4 of Bellibatlu Village, as depicted in the sketch produced by the plaintiffs.

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3.6 Being aggrieved by the impugned judgment and

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decree of the trial Court, the defendants preferred an appeal before the first Appellate Court in

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R.A.No.108/2019.

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3.7 Upon summons being served, the respondents appeared therein.

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3.8 The first Appellate Court, after reconsideration of the entire materials, both oral and documentary and reanalysing all the gamut of materials placed including the impugned judgment and decree passed by the trial Court, formulated the following points for consideration:

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"1. Whether the plaintiffs have established that, they have been using "AB" Cart track shown in the plaint sketch to reach their properties bearing Sy No.16/3 and 16/4 of Bellibatlu village and have got right of easement on "AB" Cartrack?

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2. Whether the defendants have established that, there is an alternative carttrack existing in Sy Nos.16/1 and 16/2 belongs to the vendor of plaintiffs and one Srinivasappa?

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3. Whether the applicants/appellants have made out grounds for appointment of court commissioner as sought in IANo.I?

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4. Whether the trial court has committed any error in decreeing the suit and granting decree for declaration favour of plaintiff as regards easementary right on "AB" cart track?

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5. Whether the judgment and decree of the trial court impugned in the present appeal requires interference at the hands of this court?

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6. What order or decree?"

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3.9 The first Appellate Court, having

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re-appreciated the entire material on record placed before the trial Court as well as the judgment rendered by it and upon hearing the learned counsels for both parties, re-analysed the matter in detail. The first Appellate Court did not find merit in the contention of the defendants that no cart track existed for access to the plaintiffs’ property through survey No.42. On the basis of the oral and documentary evidence along with the admissions elicited during cross-examination, it concluded that there was no illegality or perversity in the judgment of the trial Court.

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Accordingly, it upheld the decree granting the plaintiffs an easementary right of way over the AB cart track to access the suit schedule property in survey Nos.16/3 and 16/4, dismissed the appeal and confirmed the judgment and

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decree of the trial Court.

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I have heard learned counsel for the appellant/defendant and learned counsel for the

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respondent/plaintiff.

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The point that arises for consideration in this

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appeal is

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Whether the appellant/defendant has made out any good ground or cogent reason to interfere with the judgment rendered by the trial Court as well as the first appellate Court.

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2. Whether the appellant/defendant has made out any cogent reason to frame substantial question of law as urged in the appeal memo.

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It is the vehement contention of learned

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counsel for the appellant that the judgment rendered by the trial Court and the first appellate Court are perverse,

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illegal and arbitrary. Both the Courts have committed an error in not appreciating the materials placed on record and that the erstwhile property originally belonged to one common owner by the name of Venkatachalapathi, who

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was the vendor of the plaintiff with regard to Survey No.16/3 and 16/4 and so also the property purchased by the defendant in Survey No.42 of Shailapura village.

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It is vehemently contended by learned counsel for the appellants that the land passing through the property of the defendants to the property of the plaintiff where the cart track is alleged belongs to the individual owners, and none of them previously claimed absolute right. It is also contended by learned counsel that there was no transfer of the property from the erstwhile owner to the plaintiffs for use of the pathway as an easement right or by way of ownership to the plaintiffs.

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It is also vehemently contended by learned counsel for the appellants that the plaintiffs do not have

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an easementary right of way over the "AB" cart-track to approach their property and that the trial Court and the first appellate Court have committed an error in appreciating the sale deeds at documents Ex.P6 to Ex.P8 with regard to the recitals and have passed a mechanical order without understanding the provisions of the easement act and the rights provided under it.

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It is also contended by learned counsel for the appellant that there is no road as provided in the village

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map and the road ends at the end of Survey No.40 as per the map and Survey No.42 belonged to the erstwhile vendor of the defendants, namely Venkatachalapathi which is now sold to the defendants. Therefore, he contends that both the Courts have failed to take into consideration these crucial aspects and have mechanically decreed the suit without adverting to these intricate aspects. On these grounds, he seeks to frame substantial questions of law for further consideration of the matter.

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Apparently, there is no dispute to the fact that Survey No. 16/3 and 16/4 of Bellibatlu village belong to plaintiffs and they are the absolute owners of the property; so also there is no dispute to the fact that the defendants are the owners in Survey No. 42/1, 42/2 and 42/3 situated in Shailapura Village. The dispute that has been raised by the defendants is with regard to there being no "AB" cart track of approach road to the plaintiffs to their property, i.e., Survey No.16/3 and 16/4 through the property of the defendants, namely Survey Nos. 40 and 42.

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The trial Court and the first appellate Court have gone through the entire gamut of materials placed before them including the sale deeds which are admitted so also the evidence and cross examination of the parties. The fact that there exists a cart road to the eastern side and western side of the property is not in dispute so also the cart road extends to the property of the plaintiffs, it is also not in dispute except for the defendants taking a plea

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that it ends at Survey No.42. All these aspects have been

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dealt with and considered by the first appellate Court as well as the trial Court.

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The first appellate Court has re-appreciated the

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entire materials once again including the application filed by the appellant herein for appointment of a Court Commissioner to examine whether there exists a cart track leading to the property of the plaintiff and has negated the said appointment of Court Commissioner on the basis of the materials already in existence and the evidence adduced by the parties. Therefore, when the trial Court as well as the first appellate Court have considered all these materials placed on record and the admissions of the parties with regard to there being a cart track road and the sketch produced along with the plaint, the first appellate Court negated the contentions of the appellant.

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defendant rightfully and has dismissed the appeal. Consequently, rejecting the application filed by the appellant for appointment of commission to examine the

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aspect of the existence of a cart track road on the basis of

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the materials already placed on record.

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I do not find any good ground or cogent reasons or sufficient explanation to interfere with the wellreasoned judgment of the trial Court as well as the first appellate Court. I have gone through the entire materials, the judgment of the trial Court as well as the first appellate Court and the substantial questions of law sought to be framed by the appellant herein. I do not find

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any good ground or cogent reason to agree with the contentions of learned counsel for the appellant to frame the substantial questions of law as urged in the appeal memo, as in my opinion none of it exists for consideration to delve further into the matter, as it has been elaborately considered by both the Courts.

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Section 100 of CPC deals with the Scope and

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powers of the Appellate Court. It is a no more res integra to state that the powers as contemplated under Section

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100 CPC are very narrow and limited. This Court, in several catena of judgments, has held that the Appellate Court sitting in the second appeal is not required to appreciate the evidence on record unless there is perversity shown in the judgments rendered by the trial Court as well as the first Appellate Court. When two Courts have already considered the question of fact and the question of law to a large extent in detail, even if this Court finds third opinion on the opinions already expressed concurrently by both Courts, it is a general Rule that this Court should refrain from imposing its third opinion merely for the sake of interference when there is no cogent material placed on record.

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In view of the discussions made herein above,

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I do not find any good ground or cogent reason to interfere with the well-reasoned judgment rendered by both the Courts. I also do not find any substantial questions of law to be framed for further consideration in

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