Shivanshankrappa S/O Gundappa … vs Siddamma W/O Shambanna Yeliger on 5 February, 2010

Karnataka High Court
Shivanshankrappa S/O Gundappa … vs Siddamma W/O Shambanna Yeliger on 5 February, 2010
Author: H.N.Nagamohan Das
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

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