IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL No.1664/2015 BETWEEN:
1. Kumar s/o Nage Gowda @ Naganna, Aged about 47 years, r/a Gowdagala Beedi, Kote, Holenarasipura Town – 573211.
2. Amase, s/o Ningegowda Aged about 45 years r/a Gowdagala Beedi Kote, Holenarasipura Town - 573211. ..Appellants (By Sri Shashi Bhushan B S, Advocate) AND:
1. D Nagaraju s/o Doddaiah Aged about 52 years r/a Gowdagala Beedi Kote, Holenarasipura Town - 573 211.
2. Sudha, w/o H D Vijaya Kumar Aged about 37 years r/a Gowdagala Beedi, Kote Holenarasipura Town – 573211. ..Respondents This RSA is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 18.6.2015 passed in R.A No.32/2013 on the file of Senior Civil Judge, Holenarasipur, dismissing the appeal and confirming the judgment and decree dated 24.8.2013 passed in OS No.175/2008 on the file of Civil Judge and Judicial Magistrate First Class, Holenarasipur.
This RSA coming on for admission this day, the Court delivered the following:
JUDGMENT This is defendants’ second appeal challenging the judgment and decree dated 18.6.2015 passed in R.A No.32/2013 on the file of Senior Civil Judge, Holenarasipur, dismissing the appeal and confirming the judgment and decree dated 24.8.2013 passed in OS No.175/2008 on the file of Civil Judge and Judicial Magistrate First Class, Holenarasipur.
2. In order to avoid confusion and overlapping, the parties are referred in accordance with their rankings and status as held before the Trial Court.
3. The facts leading to this case are as under:
The respondents/plaintiffs filed bare suit for injunction in OS No.175/2008 on the file of the Civil Judge & JMFC, Holenarasipur.
4. The case of the plaintiffs before the Trial Court is that the suit schedule property is the self acquired property of 1st plaintiff. The plaintiff No.1 purchased schedule property from B Venkatesh s/o Bommegowda under registered sale deed dated 1.8.1990. Subsequent to the purchase, the name of the 1st plaintiff has been mutated in the property extract and he was paying tax to the schedule property. The 1st plaintiff further averred in the suit that on 13.12.2004, he sold an area measuring 27½ X 40 feet in favour of husband of the 2nd plaintiff, who is none other than the brother of the 1st plaintiff. It is further pleaded in the suit that the husband of the 2nd plaintiff gifted the same in favour of the 2nd plaintiff under a registered gift deed dated 30.5.2007. The case of the plaintiffs is that they are in exclusive possession and enjoyment over the suit schedule property. They constructed a compound in their property. Further, they averred that the defendants who are the neighbours on the eastern side of their property are obstructing the construction of compound wall towards eastern side of the suit property.
5. On receipt of the suit summons, the defendants filed written statement denying the entire averments made in the suit and contended that there is 8 feet municipal road on the western side of their property. The defendants also furnished particulars in regard to their property. The defendants took specific contention that there is 8 feet road situated between the properties of plaintiffs and defendants and the same is being used by them jointly. They have taken further contention that the plaintiffs have constructed a house by encroaching over 8 feet passage and now they are trying to construct a compound by encroaching the remaining road. On these set of facts and defence, defendants prayed for dismissal of the suit.
6. Based on the rival contentions, the Trial Court formulated the following issues:
1. Whether the plaintiffs prove their lawful possession and enjoyment over the suit schedule property as on the date of the suit?
2. Whether the plaintiffs prove the alleged interference of the defendants?
3. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?
4. What order or decree?
7. The plaintiffs in support of their contentions examined the 1st plaintiff as PW1 and produced documentary evidence as per Exs.P1 to P6. The present appellants in support of their contentions examined the 2nd defendant as DW1 and produced documents as per Exs.D1 to D10. After conclusion of the trial, the Trial Court having examined the oral and documentary evidence recorded a finding that the defendants have failed to establish the existence of 8 feet passage between the properties of plaintiffs and defendants. The Trial Court having examined Ex.D5, which is registered partition deed indicating inter-se partition deed between the defendants has held that the said partition deed as per Ex.D5 would not come to their aid since the said document does not indicate existence of 8 feet road on the western side as contended by the appellants/defendants. The Trial Court has also examined the photographs produced by the appellants / defendants as per Exs.D1 to D3. The Trial Court recorded a categorical finding on the existence of alleged 8 feet passage situated in between the properties of plaintiffs and defendants is not proved by defendants. It further held that it cannot be established by relying on the photographs. The Trial Court taking note of admissions in cross-examination of the 2nd appellant with regard to possession of the plaintiffs over the suit schedule property has come to the conclusion that the plaintiffs are in lawful possession over the suit schedule property in view of registered sale deed dated 1.8.1990 executed in favour of the 1st plaintiff. Having assessed the oral and documentary evidence meticulously, the Trial Court has decreed the suit by holding that the plaintiffs are in lawful possession and in view of the appellants asserting the existence of suit passage situated in between the properties of plaintiffs and defendants, it would necessarily indicate the interference by the appellants/defendants. Based on the above reasons, the Trial Court proceeded to decree the suit.
8. The appellants/defendants being aggrieved by the judgment and decree of the Trial Court preferred RA No.32/2013 on the file of the Senior Civil Judge, Holenarasipur. The 1st Appellate Court on re- appreciation of oral and documentary evidence on record has concurred with the reasons assigned by the Trial Court in regard to the existence of alleged suit passage. The 1st Appellate Court on re-appreciation of evidence having meticulously examined Ex.D5 – partition deed has concurred with the findings of the Trial Court and has held that the appellants by relying on Ex.D5 – partition deed cannot claim the existence of suit passage in between the properties of plaintiffs and defendants. At the most, the registered partition deed would indicate that the passage of 8 feet is situated only on the southern side of the property and Ex.D5 would not come to the aid of the appellants. Except this document, the other documents relied by the defendants cannot be considered as rebuttal evidence to the title documents produced by the plaintiffs. The 1st Appellate Court being the final fact finding authority has on re-appreciation of oral and documentary evidence dismissed the appeal. The appellants herein being aggrieved by the judgments and decrees of the Courts below are before this Court.
9. Heard the learned counsel for the appellants.
10. Learned counsel for the appellants vehemently argued that the rebuttal evidence led by the appellants was not at all looked into by the Trial Court. He further vehemently contends that the Trial Court was not justified in only examining documents as Exs.D1 to D3, which are photographs. He further argues that the appellants have produced several documents, which would indicate the existence of 8 feet passage and would bring to the notice of this Court that there was a registered partition deed between the family members of the appellants and by relying on Ex.D5 (registered partition deed), learned counsel for the appellants contends that the appellants have proved the existence of suit passage between the properties of plaintiffs and defendants. Learned counsel vehemently contends that both the Courts below erred in dismissing the suit and as such, the judgments and decrees of the courts below suffer from serious infirmities and the same would give raise to substantial questions of law as framed in the appeal memo.
11. On perusal of the material on record, the appellants have specifically averred in the written statement that towards west of their property, there is 8 feet road, which is municipal road. To prove the existence of this passage, the defendants have heavily relied on Ex.D5 and on perusal of this document, the Trial Court categorically recorded a finding that Ex.D5 – partition deed would not come to the aid of the defendants. On the contrary, Ex.D5 clinches the issues in regard to the controversy of existence of suit passage. On reading this registered partition deed, what is evident is suit passage is situated on the southern side of the property owned by the appellants. This would negate the contentions of defendants that there is suit passage between the properties of plaintiffs and defendants. It is also elicited in the cross-examination of the 2nd defendants, who has admitted that the plaintiffs are in lawful possession of the suit property.
The Courts below having examined the registered sale deed in favour of the 1st plaintiff and the rebuttal evidence relied by the defendants as per Ex.D5 have come to the conclusion that the plaintiffs are in lawful possession of the schedule property and existence of alleged Municipal passage measuring 8 feet is not proved by the defendants. In the absence of clinching rebuttal evidence and in view of the cogent and clinching oral and documentary evidence adduced by the plaintiffs, the Courts below have rightly decreed the suit and the reasoning assigned by both the courts below are based on sound judicial principles and are based on law. The present appeal filed by the defendants does not give raise to any substantial question of law.
In the light of the above said discussions, the second appeal is dismissed.
No order as to costs.
Sd/- JUDGE Bkm