IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.No.1033/2006 (DEC & INJ) BETWEEN:
MR.DENIS D’ SOUZA S/O MARTIN D’ SOUZA AGED 68 YEARS RESIDING AT KAMMASANDRA VILLAGE ANEKAL TALUK BANGALORE DISTRICT ALSO AT No.21, 6TH CROSS, LAKSHMI ROAD, SHANTINAGAR, BANGALORE-27. APPELLANT (BY SRI S.K.V.CHALAPATHY, ADVOCATE) AND :
SRI K.KOCHHAPPAN S/O R.KUTTAN AGED 67 YEARS RESIDING AT No.94/1 KAMMASANDRA VILLAGE HEBBAGODI POST, ATTIBELE HOBLI ANEKAL TALUK – 562 106 BANGALORE DISTRICT RESPONDENT (BY SRI VASANTHAPPA, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 04.02.2006 PASSED IN R.A.No.142/2001 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (SR.DN), BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.07.2001 PASSED IN O.S.No.589/1992 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND JMFC., ANEKAL.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Learned counsel for the appellant would submit that he has filed I.A. No.1/2017 seeking withdrawal of the suit in O.S. No.589/1992 on the file of Prl. Civil Judge (Junior Division), Anekal, with liberty to file another suit, if necessary.
2. The averments made in the application and affidavit filed in support thereof would indicate that a road is already formed by the Government in the suit schedule passage, in respect of which, reliefs of declaration and permanent injunction were sought by the plaintiff (appellant herein) in the aforesaid suit filed by him. In view of the road being formed in the suit schedule property, the question of considering I.A. No.1/2017 filed by the appellant seeking permission to withdraw the aforesaid suit does not arise. Accordingly, I.A. No.1/2017 is dismissed.
3. This Court by taking note of the fact that public road is already formed by the Government in the suit schedule property, would dismiss this second appeal as having become infructuous in view of the fact that the suit schedule passage in respect of which direction was sought for use of the same as road, has already been converted into road.
4. The question of reserving any liberty to the appellant herein does not arise inasmuch as if the formation of the said road is challenged either by the respondent in the second appeal or anybody else, that itself would give rise to cause for the plaintiff – appellant herein to protect his interest in accordance with law.
5. In view of appeal being dismissed as having become infructuous, applications in I.A. No.1/2015, I.A. No.1/2007 and Misc. Cvl. No.5746/2011 for production of documents do not survive for consideration and the same stand disposed of.
Sd/- JUDGE sma