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The Code Of Civil Procedure (Amendment) Act, 1956

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Karnataka High Court
Kadirappa vs Muthappa on 17 September, 2009
Author: K.N.Keshavanarayana
I
IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 17th DAY OF SEPTEMBER 2009
BEFORE
THE HON'BLE MR. JUSTICE I' 

R.S.A.NO.70-H2007

BETWEEN I

1 KADIRAPPA I *
S / O. LATE MUTHEGOw:0_A
AGED ABOUT 51 YEARS» 
R/O KARENAHAL1 
TUBAGERE HOBLI ,  
DODDABALLAPU_R~TALU§;;.  ' _
BANGALORE RURA;LDIST.J   "  .. APPELLANT

[By SR1 N  'V V'  

1 MUWAPPA    . J
' I S/O§"LATE.NARAS'I1\/II"1AIAH
 AGED ABOUT 05 YEARS
" :.R./
V. ., _TI.IRA€-.ERE HOBI
" I A. V DQDDABALLAPUR TALUK
'BA_N§}A'LORE RURAL DIST.  RESPONDENT

(Ey SIDDAPPA FOR C/R) " .f:f:E~11S RSA ES FILED U/S 100 CPC AGAINST THE 'I3 'JUDGMENT AND DEGREE DATED; 14.12.2005 PASSED IN "r.vRA;NO. 89/2002 [OLD NO. 63/01) ON THE FILE OF THE CIVIL JUDGE (SR.DN.), DODDABALLAPUR, PARTLY MLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED: 9.2.2001 PASSED 1N..V'Aos.tNo. 242/1996 ON THE FILE OF THE ADDL.C:Avri1{»Q U':DG~E (JR.DN.) &JMFC, DODDABALLAPUR. " THIS R.S.A. COMING ON :F'O'R~4HEARI_1§G'V:»'I'Pi§S'.TDAYJ' THE COURT DELEVERED THE EoLLOVvfi\1Ge;»._ JUD;,;1_x/:E'N.f_I_"'" V' The appellant was the'vtj:31ain_tiff Eespondent was the second defen:daAnt i::j_1v1996 on the file of the CivilVJudge~{"if.Dn;--),AQotidahaiiapur.

2. the suit against the respondent for permanent injunction restraining defendants from interfering with his possession and enjoyment of land bearing ._ measuring 1-10 acres situated at Tubugere Hobli, Doddabailapur Taiuk, * intervV'a1ia contending that he is the absoiute owner in ttijjossession and enjoyment of the same and the defendants who have no manner of right, title or interest are trying to interfere with his pOSS6SS_iQlfI;.._rf'.._

3. According to the respondent though the appellant / plaintiff isthe » bearing Survey No. 41, they have right'ofthe land bearing Survey No. 4f1_v:to._reach Surveyii No. 25 which is lying to of schedule property.

4. The 'hasisfof the pleadings of the parties. gisinanylsisfsix issues. On the basis of pevidencefv the parties, the trial Court heldthatléthié dehfendanlts have failed to prove that a road

- th.roughmSurVey No. 41 and that they have a Survey No. 41. In that View of the niatter,' since admittedly the plaintiff is the absolute .. oyvne'r of Survey No. 41, the trial Court decreed the suit directed the defendants not to interfere with the 4 plaintiffs peaceful possession and enjoyment of the property.

5. On appeal by the respondent / the Lower Appellate Court hel_vdmth'at._Vther'e.Arilns_Va''cart 97 it track in the land bearing>JS_urVey=l\loli 41Ta.;s. L» the village map produced, Court held that justified in granting injunction__ V 'entire property. Thereforeyfl modified the decree that the plaintiff is entitl,_ed--. ' of injunction against the defendants defendants' privilege to pass through the " 'existirlg cart track in the suit schedule ' an approach way to their adjacent land in " Aggrieved by the judgment of the Lower Appeliatlel Court, the plaintiff has presented this appeal.

6. While admitting the appeal on 23.11.2007, this Court framed the following substantial question of law: ''5 W "Whether the Lower Appellate Court was justified in reversing the judgment and', decree of the learned Trial Judge when evidence of P.W.3 discloses that....__the 3 defendant was making use of the pathWay:'---- ' only during summer and thereh__vvasCf_no road?" a 'l " 4'

7. Upon service of" noticeV-- of 1 respondent / defendant No.HZ»..has appeared through his learned counsel. it it i K

8. I Gowda, learned counsel --:t_herappellant'aiid'§Sri.S.Siddappa, learned counsel 'forlv:'._the:Vi. Perused the judgment underappeal'. it ' ii' i 'l'h.§': controversy involved in this appeal is about gltheglt the Lower Appellate Court that a cart in land bearing Survey No. 41 owned by the A. appellant and that defendant--2 has a right to use the l cart track to reach his land in Survey No.25 which "is lying on the Eastern side of the suit schedule property bearing Survey No. 41. As noticed above, it was the specific contention of the respond-ent / defendant before the trial Court that there track in Survey No.41 and tha_t..h,e'ha_s"a" Aus.gf," » _ Therefore, it was for the res:'1:aon:'r:_i'entS;"~. prove by satisfactory evideri»c_e cart' track running in Survey Howex'.er..vvbefore the trial Court, the produce any documentary.:1?-yrjdeiiccgto his contention about the in Survey No.41.

trial court having regard. fact that the plaintiff is in possession _Vof...Suivey No.41, granted a decree for ppermianent injunction. However, before the Lower a copy of village map was produced by the appellant herein. The Lower Appellate Court, by so looki:'n.g into the said copy of the village map, has come 1 '-~_to~the conclusion that there is a cart track running in

-"Survey No. 41. This led him to hold that the defendant- "3 @ 2 has a right to use the cart track passing in Survey No. 41 to reach his land in Survey No.25.

10. Sri.N.Sonneg0wda, the learned counsel.' appellant vehemently contendedythat everi copy lof , the village map produced befgreyfie Court the existence of is According to the learned appellant cart track is indicated by double dotted line While dotted line.

According" the copy of the village the Lower Appellate Court there line indicated in Survey No. 41 as.§sucl1_, the "Lovve_r.Appellate Court was not justified in ' ;I*iolding..t'hatv a cart track runs in Survey No.41. ill lSiri.S.Siddappa, learned counsel for the relspolrident / defendant--2 vehemently contended that 2 copy of the village map produced by the appellant lgherein, before the Lower Appellate Court itself indicates F'-

existence of a cart track in Survey No.41, therefore, the Lower Appellate Court is justified in ho1ding...th£at._V_the defendants have a right of user of the also drew the attention of this _Court to'tl'1el'_e\}ide'ncer.of . PW.3, who admits that the through the suit schedule._v:v1iiropelrtyfi land' in Survey No. 25. S S S

12. I have the submissions made on both,:Vsides.:_'A of the Village map prod1:ieeld- by herein before the Lower Appellate 'Court; of the opinion that there is great ' Qforeeifin the contention of the learned counsel for the j'.Iri.?the Village maps the cart track is generally s1<1_0Wi.j' double dotted line. As Could be seen from the o eopgz/"oi; the Village map available in the records of Lower l"AV_lVAp;5ellate Court, there exists a cart track shown in double dotted line running in Survey No. 25 from South M to North whereas no such similar double dotted line is found in Survey No. 41. Thus from the said c_o.py'..._of._the village map, it cannot be said that the cart Survey No.41. The Lower Appellate cz:u1£t.'a.:5'petarsi.. » have mistaken the thick linel;":.fou'ndlV Survey No. 41 shown in th.e:g"v.illage" "track;iS In my opinion, the Lovver justified in holding that a cart' No.41. The finding of this regard is Without to the contents of the village "evidence of PW.3 that the defendants' pass through Survey N0. 41 during sulnirinerdfdalysllto go to land in Survey No.25, it S V. &can:notIbe..said thlatlthey have a right of user. It is not of the defendants that they have acquirvedany right by prescription nor it is their case that an easement of necessity they have to pass it 'glthrough Survey No.41 to reach land in Survey No.25. In " V-"the absence of any positive evidence placed by M 10 respondent / defer1dantw2 that a cart track exists in Survey No.41, they have no right of user,..tO:'ip_ass through Survey No.41. In the absence favour of the defendants, the Court ca:';'not'.fi§;.Qfifér on respondent / defendant,' interference with the enjoyment of the land'. 9 T I V

14. In View of the finding of the Lower Appellate and contrary to the ...,ari(~1 fitlpislllwithout any basis. of the Lower Appellate Court is liable judgment of the trial Court is.» rieduirevd to L1_fe_stored.

--.vlt3,'«.!:XCC.ordingly, the substantial question of law "raised answered. The appeal is allowed. The land decree dated 14.12.2006 passed by the V Judge [Sr.Dn.}. Doddaballapur in R.A.No.89/2002 is hereby set aside. T he judgment and decree of the g H trial Court dated 9.2.2001 passed by the Civil Judge (Jr.Dn.), Doddaballapur in O.S.N0.242/96 is'..f:es;_tc\red. The parties are direct to bear their ovm é " K ' RS/*