IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE 51:11 DAY OF FEBRUARY 2QxmC_ BEFORE THE H()N'BI..E MRJUSTICE I-LN. CC A R.S.A.No.7218)%20(:_Q j; 4' ' V A,/gvzr, Misc.Cvl.No. -- C ' Shivashankarappa S/0.Cxundappa Halli " Age: 57 y<~:aJrs_,.. £'.<;_C::.Ag1i'ic11:]i':i1ire.:VA"'*?iia'V j' R/o.Mask:--584 1;24__._ _ u if,' APPELLANT (ifiy Advocate) AND: C C C 1.Sid;damma, years. v W/.§;"Shan1banné' ..... .. * fYe1_ig'er,"' Qcc :"A_gricu1ture _R,/q;HMas}:ia534~.%:24 2;N_§§;'gmé;i Cye ars S / 0L'Shami3anna -4 .. _ :.. _-- ' a_Ye1ige'r,_ C)cc:Agricu1ture "KVC.V.R/x::.,_MaSki»~584 124 RESPONDENTS
.._V Ksfifiunzraja Rao Kakkeri and Mohankumax
H __Rianjo2kar. Advocates for Rd and R-2]
Ow»
This R.S.A. is filed under Section 100 of CPC
against the judgment and decree dated 30.6.2-Q09
passed in R.A.No.30/O8 on the file of the… *Civ.i1
Judge[Sr.I)n), Lingasugur, allowing the appe’a1VV””and~«V
setting aside the judgment and decree dated§__
passed in OS.No.i33/O0 on the file ofw__thej.Civi1.
Judge(Jr.Dn.] at Lingasugur.
This appeal coming on
MiSC.CVl.NO.153455/O9 this day, Court_d’eI’ivere’d
the fo1iowing:~ ‘V V
This appeal is directed judgment and
decree dated passed by the
Civil Judge[S1′:’Dn;}:at d
2;: _ the plaintiff and
respondents’ are before the trial Court.
in judg1een’t,'” for convenience, the parties are
referred their status before the trial Court.
pfpléiaintiff contends that he is the owner in
“possession and enjoyment of 3 acres of land in Survey
of Maski Village, which is more fully described
‘ …_’jiI1__’othe plaint schedule. Since the defendants tried to
am
interfere with plaintiffs possession of the suit schedule
property claiming a pathway on the northern side of the
plaint schedule property. He filed O.S.No.I33/V.
decree of perpetual injunction. The defendarits”erit.e_red _
appearance before the trial Qourt, V
statement intenalia contend’ing::”‘et.i1at,_l lplaiizut
schedule property bearing” No.3″ the
defendants’ property _’nearing__l:lflissa_v No.4«are part and
parcel of entire :the same was
belonging to B_til},a farriilyfl in the Bulla
family, Hissavin had fallen to the
share ‘er and Hissa No.4 in Survey
No.240 share of Basappa Bulla.
plEV’_.’V’i’1:i.'[iEff_:. p1_1rch’a’sed__.l~lissa No.3 in the year 1993 and
‘def”enpdants”p:urchased Hissa No.4 in the year 1971. The
further contended that they are using the
pathway; on the northern side of the plaint schedule
as ingress and egress to their property for
éfgricultural operation. On these grounds, the
O}’\}\J*
defendants opposed the claim of the plaintiff. On the
basis of the pleadings, the trial Court framedtllthe
following six issues for its consideration:-
“1.Whether the plaintiiflllprosresé
he is in lawful possession
property?
2.Whether the plaintiff hp-rovesA”tl1atAv”E
there exist a ‘W:-xterlptirt; l4etffjat* North
Western _(:ornerA.o.fetl*1e ‘suit
er plain proves that
defendants through the
suit: Iar1;d go land?
A “V-4_’_.Vfhether::tl’re”_.defendants prove that
‘ ” they flare jusmg’ the northern edge of the
l :.Seuit~ land toga to their land?
1 the plaintiff is entitled for
the. ‘relief sought?
6.What order or decree?”
aim
4. Before the trial Court, plaintiff examined
three Witnesses as P.Ws.1 to 3 and got marked
to P7. The defendants examined two
D.W.l and D.W.2 and got marked
Court after hearing arguments j;th..e
appreciation of the pleadings, oral and dciciimentary
evidence on record decreed of vide
judgment dated judgment
of the trial Cou_1″t, the appeal in
R.A.No.30/_QV8..:V appellate Court.
The lg»?! of the
entire passed the impugned
judgmentlallowingg the reversing the judgment of
Court”and….dismissing the suit of the plaintiff.
p’Hence;’vthe_’se’cond appeal by the plaintiff.
5;” -vfllhough the matter is listed for admission,
the saiiie is heard on merits by consent of learned
.l ‘r;dvo{:ates on both side and perused the entire records.
givv
6. It is not in dispute that plaintiff is the owner
in possession of plaint schedule property. Further, it is
not in dispute that on the western side of plaint
schedule property, the defendants’ property is
It is not in dispute that plaint schedule
defendants’ property are i-Iissa
the entire Survey No.240. _ it
defendants that I-lissa No.3 to V
one Chennappa Bul1.ai_…¢_4′ of v”Cl’iennappa
Bulla by name Basappa Bulla
got partitione’d’th”e land In this
partition, ‘ ‘S ‘ got Hissa No.4 and
Siddalingappa.Elul_1a*._got”~~’i’Hissa No.3 in Survey No.240.
it t’ne.« case of defendants that they
p’p?tirchpa’sed;’ii:i:ssa No.4 from the legal representatives of
Eiasappaf and plaintiff purchased Hissa No.3 from
l’.._Sinddalingappa Bulla. P.W.1 in his evidence admits
father has purchased plaint schedule property
healing Hissa No.3 in Survey No.2/-10 from the son of
fivv
Siddalingappa Bulla. This admitted evidence on record
clearly establishes the fact that the property of plaintiff
and property of defendants were part and_:’_:parce–l _
Survey No.240. It further establishes the in it ‘*
partition among the predecessorsgin ftitle
and defendants, the land to: be
divided as Hissa No.3 and there is a
partition in respect Of–_i1’l a particular
survey number; __the;1″ the Indian
Easementalfy’ at this
stage (b) of Section 13 of
The Indian” S82 and they are as under:~
_s’ellsl’BTa field then used for
a.agfi–c;u1tura1 “” “purposes only. It is
_ ” except by passing over A’s
by land or by trespassing on the
of a stranger. B is entitled to a
ll of way, for agricultural purposes
only, over A’s adjoining land to the field
sold.
&v*~”‘
(b) A, the owner of two fields, sells
one to B, and retains the other. The
field retained was, at the date of the _
sale, used for agricultural purposes
only, and is inaccessible except
passing over the filed sold to B.
entitled to a right 4′
agricultural purposes ori1y;.’_”o’ver._
field to the field retained.”
7. It is not in dispute_l!4_that iijiissa’ Survey
No.24~0 is bounded or1″ea’ster_n road. From this
road, originally there was~access”».to ll-lissa No.3 and
Hissa l.’T4*i1i:ifSui*if%e:,r ll’\l():I§’.4:(}l.._lll’I\§lCfl}W by virtue of division
of I-Iissla No.3 No.4 in Survey No.240, the
land in poslsessiori oi”‘v_defendants in Hissa No.4 is on the
“v.weste’rz%1′-aside’ of schedule property. Therefore, the
arellfiaving easemeritary right by necessity to
reach through the plaint schedule property as
illustration (a) and illustration (‘0) to Section 13 of
A E-Eiseixientaly Act.
&\I”’
8. The piaintiff contends that there is an
alternative road having access to the defendants’V–“1and
and therefore, there is no necessity for the V.
claim right of Way in the plajnt schedu1e__ppropertVy.”d T’
decline to accept this contentionof iearriedi
for the plaintiff. in the p1aint,_ ther’eis=.no refa~¢n¢e V
regard to alternative road ayaiiable to the defeindants.
There is no Whisper inithe of P.W.1
with regard to the alterriatiye document is
produced to ‘t”h–at defendants have
aIternative’r.oadV;to In addition to this
in the Veross–ei§anf1i.nation: V”cf’D.W.1, it is suggested that
he is havingddaccessddtodd land through the land of one
Yirnpakshappa, Amaramrna and Rudrayya
ere)” ‘V7§’11is’isn§fgestion in the cross–exan1ination of D.W.1
estabiishesflthe fact that defendants have to pass
“._ythroug1piA’L.the iand of a strangers to reach their land.
“:t:”_i’herefore, the defendants are entitied to claim right of
in the plaint schedule property by Way of necessity.
dw
10
The lower appellate Court by properly appreciating this
position of law and the facts involved in the case rightly
concluded that plaintiff is not entitled for perpetual
injunction as prayed for.
9. The learned counsel for the plaintiff C’
on a judgment of this Court reported
SIVAN AND ANOTHER .Vs. iezotéstij’
KAR 1188] contended that”‘tni’less it V*’ngla{fi;ér of V’
necessity, a party is r1’fot..p_entitle(j asa nlatter of
right. the right of easement.i’,”fiIn there is no
evidence proye and establish that
defendants’ are road to reach their
landl, .. the right of Way claimed by the
‘win plaint schedule property on its
t”‘northe1″nl”‘side:’is a necessity as specified in Section 13 of
Easeme:’ntar’y Act. Therefore, the reasoning of the lower
it Iilippellate Court is in accordance with the law declared
.’ Court in the judgment rendered supra.
figw
ll
10. The learned counsel for the plaintiff
contends that the defendants in their written sta.te1nent
have not made any counter claim and .
lower appellate Court ought to have i”efrained=: f1’OI13.i “‘
giving a finding that defendants ii’haiIirig:”:
easement of necessity on the noprthefi-n sidefof =t’_h«e..p1-aint r L’
schedule property. I decline thisioontention of
the learned counsel V in a suit for
perpetual injunntion, plaintiff is
not in u property, then
he is All that the lower
appellate’ impugned judgment is
acceptingvvdefenve defendants that there is a
~'”~._Vpat?:i{iray_pfV’on the”n«oifthern side of the plaint schedule
ivlffherefore, I find no substance in this
the plaintiff.
‘A ll.” if Admittedly, the plaintiff is the owner in
.l possession of plaint schedule property. Except using
dim
12
the pathway on the northern side of plaint schedule
property, the defendants have no right to interfere-with
plaintiffs possession and enjoyment of the 3
land in the plaint schedule property.
Appellate Court on reappreciatiozaithe l’enti1′-ell:Ina.terial7
on record rightly reversed the of
by assigning sound reasons. no ground
to interfere with the of the lower
appellate Court.__ I see of law
that arises for mt;~cons-iderationin’ this” second appeal.
12. _pVthe above _ observation, the appeal is
hereby dismissedlWith_’i1o”orders as to Costs.
EM/l”
WFDGE