IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE Mr. JUSTICE SACHIN SHANKAR MAGADUM R.S.A. No. 11/2017 BETWEEN:
Nagendrappa S/o. Kandavadi Hanumappa Aged about 64 years Retd. Teacher R/o. Basapura Village Ramagiri Hobli Holalkere Taluk – 577 526 Chitradurga District. … APPELLANT (By Sri. Vijayakumar.S.C., Adv.) AND :
Tungamma C W/o. B.K. Parameshwarappa Aged about 62 years House Hold Work R/o. Basapura Village Ramagiri Hobli – 577 526 Holalkere Taluk Chitradurga District. … RESPONDENT ---
This RSA is filed under Section 100 of CPC against the judgment and decree dated 07.09.2016 passed in RA No. 100/2013 on the file of the Senior Civil Judge and JMFC, Holalkere dismissing the appeal and confirming the judgment and decree dated 28.10.2013 passed in OS No. 16/2008 on the file of the Civil Judge and JMFC, Holalkere and etc.
This RSA on for Admission this day, the Court delivered the following;
J U D G M E N T The appellant/defendant has filed the present appeal questioning the judgment and decree dated 07.09.2016 passed in R.A. No. 100/2013 on the file of Senior Civil Judge, Holalkere confirming the judgment and decree dated 28.10.2013 passed in O.S. No. 16/2008 on the file of Civil Judge and JMFC, Holalkere.
2. The facts leading to this case are that, the respondent/plaintiff filed a suit for bare injunction in O.S. No. 16/2008. The case of the respondent/plaintiff is that she is the owner in exclusive possession of suit house and the said property was purchased by the plaintiff under registered sale deed dated 04.12.1978.
The plaintiff further averred in the plaint that she has put up construction after securing permission from the Panchayat. The plaintiff further contended in the plaint that at the time of construction of the house she has left open space on the eastern side of suit property and at that stage the present appellant/defendant who is residing towards the eastern side of the suit property has picked up quarrel and is trying to interfere with the peaceful possession and enjoyment of the said property by the respondent/plaintiff. Hence, suit for bare injunction came to be filed.
3. On receipt of suit summons appellant/defendant entered his appearance and filed written statement. The present appellant/defendant stoutly denied the entire averments made in the plaint. The appellant took a specific contention in the written statement that there is a road situated between the house property of respondent/plaintiff and his property.
The appellant/defendant specifically averred in the written statement that the respondent/plaintiff has approached the Court by suppressing the very existence of the road. The appellant/defendant further averred in the written statement that they are making use and enjoyment of the road for the last several years and on this set of defence appellant/defendant prayed to dismiss the suit filed by the respondent/plaintiff.
4. Based on the rival contentions the trial Court framed the following issues:
“1. ªÁ¢AiÀÄgÀÄ zÁªÁ ¸ÀévÀÄÛ PÁ£ÀÆ£ÀÄ ¸ÀªÀÄävÀ ¸Áé¢üãÀ ªÀÄvÀÄÛ C£ÀĨsÀªÀ zÁªÁ ºÀÆrzÀ ¢£ÁAPÀ¢AzÀ ºÉÆA¢gÀĪÀÅzÁV gÀÄdĪÁvÀÄ¥Àr zÁÝgÉAiÉÄÃ?
2. ¥ÀæwªÁ¢UÀ¼ÀÄ ªÁ¢AiÀĪÀgÀ PÁ£ÀÆ£ÀÄ ¸ÀªÀÄävÀ ¸Áé¢üãÀ ªÀÄvÀÄÛ C£ÀĨsÉÆÃUÀPÉÌ CrØ¥Àr¸ÀÄwÛgÀĪÀÅzÁV gÀÄdĪÁvÀÄ¥Àr zÁÝgɬÄÃ?
3. ªÁ¢AiÀĪÀgÀÄ ºÉýgÀĪÀ ±Á±ÀévÀ ¤§ðAzsÀPÁAiÉÄÝ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð¢zÁÝgÉAiÉÄÃ?
4. K£ÀÄ rQæ CxÀªÁ DzÉñÀ?.”
5. The trial Court on appreciation of oral and documentary evidence on record has recorded a categorical finding that though the appellant/defendant has taken a contention that there is a public road situated towards west of his property, the same is not at all proved by leading rebuttal evidence to that effect. The trial Court on re-appreciation has culled out the relevant cross-examination of D.W.1 wherein the present appellant has admitted that there are no documents to indicate the existence of a public road between the parties to the suit. The trial Court on meticulously examining the material on record has come to the conclusion that the open space which is situated towards the eastern side of plaintiff’s property is exclusively owned by the present respondent/plaintiff and there is no such public road as contended by the appellant/defendant. The trial Court having examined the original sale deed, house deed extracts and other documents has recorded a categorical finding that respondent/plaintiff has left 5 feet open space towards eastern side of her property and has constructed a house as well as compound wall. The trial Court has also taken note of the fact that the document relied on by the appellant/defendant would in fact come to the aid of respondent/plaintiff. The trial Court while interpreting Ex.D1 has recorded a categorical finding that it is not a public document and the same cannot be relied on to determine the controversy between the parties. The clinching evidence adduced by the respondent/plaintiff indicates that respondent/plaintiff is in lawful possession and enjoyment of the suit property as on the date of filing of suit. The trial Court has proceeded to decree the suit by holding that the case of plaintiff is quite probable and acceptable. The Trial Court while dealing with issue No. 2 has recorded a categorical finding that in view of the appellant asserting his right by contending that there is a suit road abutting the to plaintiff’s property amounts to interference. In that view of the matter the Trial Court has proceeded to decree the suit.
6. The appellant herein being aggrieved by the judgment and decree of the trial Court preferred an appeal before the lower appellate Court in R.A. No. 100/2013. The lower appellate Court on re-appreciation of evidence has taken judicious note of inconsistent defence taken by the appellant in regard to nature of suit property. The appellate Court has held at paragraph No. 23 of the judgment that appellant/defendant himself is not sure in regard to existence of either pathway or open space or conservancy road. The appellate Court while examining oral evidence found that the respondent/plaintiff has categorically denied the defendant using pathway situated on the eastern side of the plaintiff’s property. The appellate Court has taken note of the few admissions given by respondent/plaintiff in regard to existence of pathway abutting to the residential house of respondent/plaintiff. However the appellate Court has not accepted the contention of appellant/defendant that the same is being used by the appellant/defendant as a public road. The appellate Court has recorded categorical finding that even if there are few stray admissions by respondent/plaintiff, the same cannot be accepted and defendant cannot be allowed to use the said passage as a public road.
7. On perusal of the judgment and decree of the Courts below this Court is of the view that the respondent/plaintiff has constructed residential house and has also constructed a compound wall and thereafter respondent/plaintiff has left space measuring 3 to 5 feet which is exclusively used by the respondent/plaintiff. The respondent/plaintiff in support of her contention has produced sale deed as per Ex.P1, House list extract vide Ex.P2 and Building plan vide Ex.P7. This clinching evidence establishes that the respondent/plaintiff owns left open space towards eastern side of her property. The respondent/plaintiff has been successful in eliciting in cross-examination of appellant/defendant to the effect that respondent/plaintiff has left open space towards North, South and East. Appellant/defendant has further admitted that property owned by respondent/plaintiff measures East-West 25 feet and South-North 62 feet.
8. It is not the case of appellant/defendant that this is the only passage used by the appellant/defendant. In the absence of such a contention and supporting documentary evidence both the Courts have come to the conclusion that the alleged open space which appellant/defendant has been asserting as public road is not established. Per contra both the Courts have held that this open space is exclusively owned by respondent/plaintiff and appellant/defendant by asserting his right over the said open space has tried to interfere with the peaceful possession and enjoyment of suit schedule property. In that view of the mater both the Courts by exercising judicious discretion have granted perpetual injunction restraining the appellant/plaintiff from interfering with the respondent’s enjoyment over the suit property.
9. In the light of the aforesaid observation I do not find any infirmity in the judgment and decree of the Courts below. No substantial question of law would arise for consideration by this Court.
In the result, the appeal stands dismissed. No order as to costs.
Sd/- JUDGE.
LRS.