IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1617/2011 (P-INJ) BETWEEN:
1. SRI S.C. SUBBAIAH, AGED ABOUT 62 YEARS, S/O LATE CHINNAPPA, 2. SRI S.C. SAMPANGIRAMAIAH, AGED ABOUT 51 YEARS, S/O LATE CHINNAPPA, BOTH ARE RESIDENTS OF SULIKUNTE VILLAGE, VARTHUR HOBLI, BANGALORE EAST TALUK – 562 125.
... APPELLANTS (BY SRI H.R. MANJUNATHA, ADVOCATE) AND:
KODATHI GRAMA PANCHAYATH, KODATHI VILLAGE, VARTHUR HOBLI, BANGALORE EAST TALUK – 560 035. REP. BY ITS SECRETARY.
... RESPONDENT [BY SRI G. MALLIKARJUNAPPA, ADVOCATE (ABSENT)] THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.03.2011 PASSED IN R.A.No.218/2010 ON THE FILE OF THE PRL. DISTRICT & SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 08.02.2010 PASSED IN OS.No.1064/2004 ON THE FILE OF THE II CIVIL JUDGE (JR.DN) BANGALORE RURAL DISTRICT, BANGALORE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is filed by the appellants assailing the judgment and decree passed by the Addl.
II Civil Judge (Jr.Dn.), Bangalore Rural District, Bangalore, in O.S.No.1064/2004 dated 08.02.2010 and the same was confirmed by the Prl. District and Sessions Judge, Bangalore Rural District, Bangalore, in RA.No.218/2010 dated 21.03.2011.
2. Heard the arguments of learned counsel for the appellants. In spite of calling the matter twice, respondent’s counsel has remained absent and not argued the matter.
3. The appellants are the plaintiffs and the respondent was the defendant before the trial Court. The ranks of the parties before the Trial Court are retained for the sake of convenience.
permanent injunction in respect of suit schedule property bearing Khaneshumari No.11/1 measuring east to west 88 feet and north to south 72 feet situated at Sulikunte Village, Kodathi Panchayath, Bangalore East Taluk (hereinafter referred to as the “suit schedule property”). However, the plaintiffs are the owners of the suit schedule property for having purchased the same by their father Chinnappa vide sale deeds dated 14.04.1958 and 15.09.1958 and the respondent being the Grama Panchayath is trying to form a road on the eastern side of the suit schedule property without their consent or without obtaining any approval. Hence, the plaintiffs filed a suit for permanent injunction against the defendant restraining them from interfering with their peaceful possession and enjoyment of the suit schedule property.
5. Pursuant to the notice issued by the trial Court, defendant appeared through their advocate and filed the written statement by denying the averments made in the plaint as false and contended that the road in question is on the eastern side of the suit schedule property and it is used by public since long. Hence, the defendant prayed for dismissal of the suit.
6. Based on the rival pleadings, the trial Court framed four issues, which reads are as under:
1. Whether the plaintiffs prove that they are in lawful possession and enjoyment of suit schedule property as on the date of filing of suit?
2. Whether the plaintiffs prove the alleged interference by the defendant?
3. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed in the plaint?
4. What order or decree?
7. In order to substantiate the contentions of the plaintiffs, 1st plaintiff himself was examined as P.W.1 and got marked the documents as Exs.P.1 to P.7.
On behalf of the defendant, one Narayanaswamy was examined as D.W.1 and got marked two documents as Exs.D.1 & D.2.
8. After considering the evidence on record, the trial Court answered issue No.1 in favour of the plaintiffs and answered issue Nos.2 and 3 in negative and dismissed the suit. Assailing the dismissal of the suit by the trial Court, the plaintiffs filed an appeal before the Prl. District and Sessions Judge, Bangalore Rural District, Bangalore, (hereinafter referred to as “1st Appellate Court) in RA.No.218/2010.
9. The 1st Appellate Court after hearing the arguments, considered three points which are as under:
1. Whether the learned Civil Judge is justified in dismissing the suit on the ground that the plaintiffs have failed to prove the identity of the property and existence of road on the eastern side of the schedule property?
2. Whether any interference is called for by this Court? If so to what extent?
3. To what reliefs the parties are entitled to?
10. After hearing the arguments of the parties, the 1st Appellate Court dismissed the appeal filed by the plaintiffs by confirming the order of the trial Court.
Assailing the same, the appellants/plaintiffs are before this Court in this second appeal.
11. Learned counsel for the appellants strenuously argued that both the 1st Appellate Court as well as the trial Court has rightly held that the plaintiffs’ father had purchased the suit schedule property vide sale deeds dated 14.04.1958 and 15.09.1958. The trial Court answered issue No.1 in favour of the plaintiffs as they are in lawful possession and enjoyment of the suit schedule property, but answered issue Nos.2 and 3 in negative. Respondent-Grama Panchayath also not produced any document to show that open space available on the eastern side of the property was the public road. Except Ex.D1 the minutes of the meeting there is no document to show that the suit schedule property belongs to Grama Panchayath or it is a public road. Therefore, in the absence of any document and without acquiring the land of the plaintiffs, respondent/defendant has no right to interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule property for the purpose of forming a road. Therefore, he has contended that both the courts below committed an error in dismissing the suit.
12. In spite of granting sufficient opportunity, the respondent’s counsel remained absent.
13. After hearing the arguments, the following substantial questions of law arises for consideration before this Court:
1. Whether the courts below were justified in dismissing the suit of the plaintiffs without appreciating the oral and documentary evidence in its proper perspective?
2. Whether the courts below were justified in dismissing the suit of the plaintiffs despite holding that the plaintiff proved his ownership and lawful possession over the suit property?
14. On perusal of the record, it is an admitted fact that the plaintiff’s’ father namely Chinnappa had purchased the house property measuring 32 x 49 feet vide sale deed dated 14.04.1958 and subsequently, on 15.09.1958 purchased vacant space along with the house measuring 88 x 72 feet. The evidence of P.W.1 as well as Ex.P.1- original sale deed clearly goes to show that the plaintiffs are in possession and enjoyment of the suit schedule property as on the date of filing of the suit. Ex.P.2-katha extract for the year 2004-05 goes to show that the names of plaintiffs are mutated as owners in possession of Khaneshumari No.11/1. There is no dispute in this regard. The trial Court as well as 1st Appellate Court have rightly held that the plaintiffs are in possession and enjoyment of the suit schedule property. Admittedly, the respondent being the Grama Panchayath in the minutes of meeting dated 13.10.2003 has passed a resolution and at paragraph No.3 has decided to form a road from the house of Nanjunda Reddy till the house of Palam Bhadra Reddy. Except the oral evidence, the defendant have not produced any document to show that this private property has been acquired by them for the purpose of forming a public road. The photographs produced by the learned counsel for the appellants goes to show that the road is not continued to other side and there is no thoroughfare. It appears that the space left out by the plaintiffs in front of their house for personal use which is the private road. Therefore, without any document from the side of the respondent – Grama Panchayath and without acquiring the land to form the road or without showing any document that this road is a public road, the question of forming a road will not be permissible. Though, the trial Court as well as the 1st Appellate Court have rightly held that the plaintiffs are in possession and enjoyment of the suit schedule property, but have committed error in holding that the road is a public road. Even the respondent/defendant not examined any other public of the village to show that it was the public road used by the public from time in memorial. Therefore, the contentions of the appellants are acceptable.
15. It is the private land left out by the plaintiffs for personal use. Therefore, in order to form a road, the respondent-Grama Panchayath is required to take either consent of the plaintiffs to acquire the land or acquiring the land as per the Land Acquisition Act. Therefore, I hold that the trial Court as well as the 1st Appellate Court committed error in holding that there is no interference by the respondent-Grama Panchayath when they are trying to form a road in the suit schedule property and when the plaintiffs are in possession of the suit schedule property, the dismissal of the suit requires to be set aside and the suit of the plaintiffs is required to be decreed as prayed. Therefore, I answer both the substantial questions of law in favour of the appellants/plaintiffs.
16. Accordingly, appeal is allowed. The judgment and decree passed by the trial Court as well as the 1st Appellate Court are hereby set aside. The suit of the plaintiffs is decreed as prayed for. However, liberty is reserved to the respondent-Grama Panchayath to form a road by acquiring the land in accordance with law.
In view of disposal of the appeal, Misc.Cvl.No.15195/2011 does not survive for consideration and the same is dismissed.
Sd/- JUDGE PB