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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

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 17th DAY OF SEPTEMBER 2009 BEFORE I ·

THE HON`BLE IVIR. JUSTICE `

R.S.A.NO.704g2007 H

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I KADIRAPPA 1 C'._ I ¤ I A S/O. LATE MUTHEGOWDA _ · _ -- V_ ' AGED ABOUT 51 YEARS * L

R/O KARENAHALI T

TUBAGERE HOBLI _~ IC`C` *

DODDABALLAPUR TALUKV *

BANGALORE RURAL DIST. = C »_ .. APPELLANT [By SRI N s0rJ2§1E._G0iXfIjA.'__;A1;jV~QF) _ I 1 MU*i1f1»1APi>A4"·V_ - I

_ S/O.`LATEV NARASIIVIHAIAH

4 _ _ AGED ABOUT G5 YEARS

'

V V 1 TUBAGERE HOBI

I . DODDABALLAPUR TALUK

V I , ° RURAL DIST. RESPONDENT * I V (By SRICS SIDDAPPA FOR C / R) ` RSA ES FILED U/S I00 CPC AGAINST THE V. 2 . ._TC [ _`'· · VVV' A JUDGMENT AND DECREE DATED: 14.12.2005 PASSED IN I . A._A 89/2002 [OLD NO. 63/01) ON THE FILE OF THE Y I -- § <%.

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respondent / defendant~2 that a cart track exists in Survey l\io.4l3., they have no right of user through Survey i\lo.·¢ii. In the absence _i_in_ favour of the defendants, the Court can`notl.l`c;.onferrights. ététt g on respondent / defendantg lWf`r» 1 interference with the andii

enjoyment ofthe land. A o...

14. In view of the finding of

the Lower Appeliateijourt and contrary to the siqtlgislvvithout any basis.

. Therefore. of the Lower Appellate Court is liable judgment of the trial Court is..;i`g.quireVd to beifestored.

V f , g.jijbC_QI·d1Hg]y, the Substantial queSi.iOH of IHW raised answered. The appeal is allowed. The gg 1_ _Q 4l·--._V `»_j V judgnientand decree dated 14.}.2.2006 passed by the .. ·.g· ll·a llflivii Judge (Sr.Dn.}. Doddaballapur in R.A.No.89/2002 is hereby set aside. The judgment and decree of the ggwg

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trial Ceurt deiied 9.2.2001 passed by the Civil Judge (J1*.Dn.), Deddaballapur in O.S.N0.2¢i2/Q6 is C The parties are direct to bear their ewm crests? C4 , - »»»»i C °Sdf¥C Cii' 1;--_`¤t.

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CIVIL JUDGE (SR.DN.), DODDABALLAPUR, PARTLY PHJLOVVING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED: 9.2.2001 PASSED

242/ 1996 ON THE FILE OF THE ADDL.CI*VIL ·q», (JR.DN.)&JMFC,DODDABALLAPUR. » _000 I THIS R.S.A. COMING ON FOR

THE COURT DELIVERED THE FOLLOWING.·. * ` __V` E 0'EI The appellant was the plaintiff andthe respondent was the second defendant in 1996 on the tile of the Civil·-5udgea·*{Jr.`Dn;--).,···Doddatia11apur.

2. {Irina _appa1iaat mea tha suit against tha respondent and .VA' o`th.e`i·sO for permanent injunction reatraininfg ~the°defendants from interfering with his I jjeacefni possession and enjoyment of land bearing ._S"nYVe3j·.V_ measuring 1-10 acres situated at , . Karenahaiiy, Tnbugere Hobli, Doddabailapur Taiuk, 4 I 4 { rl0` in inter alia contending that he is the absolute owner in I I O0·I rljaossession and enjoyment of the same and the

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defendants who have no manner of right, title or interest are tiying t0 interfere with his possess*.on..T_il

3. According to the respondent

though the appellant / plaintiff is the lléll g bearing Survey No. 41, they have the lllli· I land bearing Survey No. itoreach in Survey V No. 25 which is lying to the schedule PYOPQY/EY- y`ls v_

4. The `haaislof the pleadings of the parties astvaix issues. On the basis of the Vevidence. the parties, the trial Court held thatuthe delfendanlts have failed to prove that a road _ J 1g`' ti1roughllSurvey No. 4l and that they have a Z V Vvvayllover Survey No. 41. In that View Of the it l V niatter; since admittedly the plaintiff is the absolute l1`· . ovvneriof Survey No. 41, the trial Court decreed the suit . 4l`e C --l..`_ directed the defendants not to interfere with the

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plaintiffs peaceful possession and enjoyment of the property. ,_`Wt

5. On appeal by the respondent / ' the Lower Appellate Court hel.dlthat.vther'e 4_pQ A track in the land loearingpSurvey 41Aj per of V if the village map produced, therefore, appellate Court held that not jlustiiied in

granting injunctionw ing lcntire property. Therefore? Lower modified the

decree .r`__ that the plaintiff is entitled. _ relief of injunction against the defendants ldefendants' privilege to pass through 2 the cart track in the suit schedule r an approach way to their adjacent land in V U " Aggrieved by the judgment of the Lower pl _l·-- t._p vv appellate Court, the plaintiff has presented this appeal. '._. V`'V WV`' Vp ° ·~pV. Vlfhile admitting the appeal on 2311.2007, this . Q % Court framed the following substantial question of law;

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"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 ,_,c the. defendant was making use of the pe;thway--. only during summer and there was no j road'?" c N mmtt. _ V `'·~ .2

7. Upon service cfg noti_ce-- of j this ° appeal;. j respondent / defendant No.2--.has appeared through his learned counsel. A''·_

8. I lhaigsedlheard Gowda, learned counsel lor andViSri.S.Siddappa, learned counsel lorlthe ll'· Perused the judgment under appeal. ll A --V_`

it ' The controversy involved in this appeal is about the Lower Appellate Court that a cart A W trackgruns in land bearing Survey No. 41 owned by the vlvgl A. app€1i--a¤l and that defendant--2 has a right to use the . V . `ll»·_ `rlsaid cart track to reach his land in Survey No.25 which A _V is lying on the Eastern side of the suit schedule

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property bearing Survey No. 4l. As noticed above, it L was the specific contention of the respondent / K defendant before the trial Court that there-lfeitistsipiajdl track in Survey No.41 and that,he1has"aerighttof lyqd ,4 Therefore, it was for the resvpcnadentff Vddde T prove by satisfactory evidence there cart track running in Howev.er..before the trial Court, the produce any

documentaryievidence; his contention about the cartlgtrack in Survey No.4l. Under fthe trial court having

regard. to wfact that the plaintiff is in possession _of No.4i, granted a decree for ff lpqw _ injunction. However, before the Lower Z f a copy of village map was produced by V appellant herein. T he Lower Appellate Court, by _ loolring into the said copy of the village map, has come ,`,W`h T ftoithe conclusion that there is a cart track running in C ff.f V e VQ Survey No. 41. This led him to hold that the defendant- Vlii __V~l--

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2 has a right to use the cart track passing in Survey No. 41 to reach his land in Survey No.25. J . e_¤Vv l0. Sri.N.Sonnegowda, the learned coililnseljlfoil appellant vehemently contendedgthat even of , llpll the village map produced before lll'ei ll Court the existence of traclr is

l According to the learned qO@aei--.rqi~ appellant cart track is indicated by double dotted line while patiiwaypislv ll.l single dotted line. According"to__Vthe__Wlearned_ couiisellgin the copy of the village the Lower Appellate Court

there line indicated in Survey No. 41 as the ll»owerlAppellate Court was not justified in V if a cart track runs in Survey No.4l. V * lSrilS.Siddappa, learned counsel for the pg g C 4l·,_pV `._p V / defendant~2 vehemently contended that V. ·.". ll·2 ilcopy of the village map produced by the appellant fl lglierein, before the Lower Appellate Court itself indicates _g4p · ppvg · l4..

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existence of a cart track in Survey No.4l, therefore, the Lower Appellate Court is justified in holding the defendants have a right of user of the cart also drew the attention of this_C,ourt to the°evide'nce lofi, 4l4`¤ V PW.3, who admits that the " lWf`i» 1 through the suit schedule propertyl to their land V in Survey No. 25. A u... i._

E2. I have carefully -- the submissions made on botr;;;sig;leS_i t·._ ll ll_l I llSl.` lall copy of the village map produced herein before the Lower Appellate Cou·rtQ of the opinion that there is great 'l _pll the contention of the learned counsel for the Z V village maps the cart track is generally ll l V lldouble dotted line. As could be seen from the _ copy the village map available in the records of Lower ll`i A --ly,'_ `_l`A,ppellate Court, there exists a cart track shown in ''l--l 1 V {double dotted line running in Survey No. 25 from South 'i·, __l_lq ·

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to North whereas no such similar double dotted line is found in Survey No. 41. Thus from the said the village map, it cannot be said that the cart g Survey Noxll. The Lower Appellate SQQQ P4 have mistaken the thick linevfouvndf of VqqS' 1 Survey No. 41 shovvn in village "track! ' ln my opinion, the Lovver Appellate justified in holding that a cart track Survey No.4l. The finding of Vlajyver WV·li this regard is without to the contents of the

village ofwevidence of PW.3 that the defendants lpass through Survey No. 41 during summer go to land in Survey No.25, it *x _pl` ' - besaid that they have a right of user. It is not Z 1 of the defendants that they have V acduired. right by prescription nor it is their case that an easement of necessity they have to pass ~. . i`VV`. v` through Survey No.¢1»l to reach land in Survey No.25 In Vl.V V Q T the absence of any positive evidence placed by