IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1878/2011 BETWEEN:
SRI H S CHANDRASHEKAR S/O H S SHIVAPPA AGED ABOUT 60 YEARS P.W.D. CONTRACTOR RAMAKRISHNA LAYOUT GANDHI CIRCLE CHANNARAYAPATNA TOWN HASSAN DISTRICT – 573 116.
(BY SRI C R GOAPALASWAMY, ADVOCATE) AND:
SMT.K K NAGARATHNA D/O K B KRISHNEGOWDA AGED ABOUT 41 YEARS R/O D KALENAHALLI VILLAGE KASABA HOBLI CHANNARAYAPATNA TOWN HASSAN DISTRICT – 573 116.
PRESENT ADDRESS: YACHENAHALLI ANUSUYA NANJAPPA’S HOUSE 1ST FLOOR, 1ST CROSS VIDYANAGAR ..APPELLANT CHANNARAYPATNA HASSAN DISTRICT -573116 ..RESPONDENT (BY SRI B R PRABHULINGA MURTHY, ADVOCATE-ABSENT) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 28.02.2011 PASSED IN R.A.NO.63/2011 BY THE FAST TRACK COURT, CHANNARAYAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 19.12.2008 PASSED IN O.S.No.259/2003 BY THE PRINCIPAL CIVIL JUDGE(JR.DN) & JMFC., CHANNARAYAPATNA.
THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment and decree dated 28.02.2011 passed by the learned Presiding Officer, Fast Track Court, Channarayapatna in R.A.No.63/2011 wherein appeal came to be allowed with costs by which Judgment and decree passed by the learned Principal Civil Judge (Jr.Dn) and JMFC, Channarayapatna in O.S.No.259/2003 dated 19.12.2008 came to be set aside as a result suit of the plaintiff was decreed and defendant was restrained by an order of permanent injunction. The present appeal is preferred by defendant.
2. In order to avoid overlapping and confusion, parties are referred in terms of their respective status and ranking as stood in the trial court.
3. Plaintiff filed a suit for permanent injunction on the file of Principal Civil Judge(Jr.Dn) and JMFC, Channarayapatna on 07.07.2003 and it was disposed on 19.12.2008 wherein suit is dismissed against which plaintiff preferred appeal before the Fast Track Court at Channarayapatna in R.A.No.63/2011 and appeal came to be allowed with cost.
4. Plaintiff sought permanent injunction in respect of land in Sy.No.111/3 to an extent of 10 guntas in D.Kalenahalli, Kasaba Hobli, Channarayapatna Taluk being bounded on East by Mysore Road, West by house of Venkatesh Shetty, North by first defendant’s land and South by property of K.K.Girish.
5. The case of the plaintiff is that originally her father Krishnegowda was in possession of suit land and has cultivated the same and raised 13 coconut trees. Originally the suit schedule property was a path or passage (oni). Plaintiff’s father and her brother partitioned the suit land between themselves getting 3 guntas each. Insofar as plaintiff is concerned she is a married lady but deserted and abandoned by her husband. She returned to parental house and residing there. After the demise of her father, she is looking after the schedule property which is stated to be measuring 10 guntas.
6. It is stated that out of total land, said 6 guntas of land was partitioned between father of the plaintiff and plaintiff’s brother as 3 guntas each as stated above. Thus, to simplify the facts following points are clear.
(1) There was 6 guntas of land which was patta land that was partitioned between father of the plaintiff and her brother. They shared 3 guntas each in the said land. (2) 13 coconut trees are said to have been grown over the suit land. Plaintiff’s father was in actual possession of the said land and thereafter brother of the plaintiff and plaintiff’s father were cultivating together. Father of plaintiff -Krishnegowda is dead. Plaintiff alleges interference by the defendant in her peaceful possession and enjoyment of the schedule property.
7. Learned counsel for appellant Sri C R Gopalaswamy would submit that in the cross examination of plaintiff, it reveals that plaintiff claims to be in possession of Government (Panchayat) Land and her family has grown 13 coconut trees and she is also cultivating other land in the said survey number.
8. On 12.03.2019 this court framed substantial questions of law as under:
“(i) Whether the plaintiff can claim exclusive possession over the oni/passage by restraining the defendant, who is a neighbour?
(ii) Whether it is necessary to bifurcate the said oni/passage for the usage of plaintiff and defendant?”
9. Admittedly plaintiff claims the land to the extent of 10 guntas. It is said to be oni (passage, path or way). Thus, she is not claiming property to be acquired or derived by her with valid title. Oni or path or passage that belongs to Panchayat or Government and even otherwise an easement cannot be owned or possessed by owner of a property appurtenant thereto and it is there for exercising rights of enjoyment. Insofar as growing of coconut trees and related aspects are not within the domain of suit but however the land is said to be Panchayat land.
10. Learned counsel for respondent is absent.
11. This is case under which the trial court also should have considered Rule 6 of Order XII. When the admitted facts reflect that it is right of way or path it cannot be concluded as private property of plaintiff or defendant.
12. Even when the property is not used due to stagnation of water or for other reasons by the villagers that cannot confer title to own and enjoy exclusively by a private person.
13. With this being basic principle hovering in around the suit learned trial Judge was right in dismissing the suit. However first appellate Judge committed a serious error in decreeing the suit which is liable to be set aside.
Accordingly substantial questions of law are answered.
Hence, the following:
ORDER Appeal is allowed. Judgment and decree dated 28.02.2011 passed in R.A.No.63/2011 by the Presiding Officer, Fast Track Court, Channarayapatna, is set aside. Judgment and decree dated 19.12.2008 passed in O.S.No.259/2003 by the Principal Civil Judge (Jr.Dn) and JMFC, Channarayapatna is confirmed.
Sd/- JUDGE SBN