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2014 DIGILAW 474 (KAR)

Annasab Malagouda Biradar v. Tippanna

2014-04-16

A.V.CHANDRASHEKARA

body2014
Judgment A.V. Chandrashekara, J. 1. This is an appeal filed by the defendant of O.S. No. 141/93 pending on the file of Court of Civil Judge (Jr. Dn.), Jamakhandi of Bagalkot District. Respondents herein were the plaintiffs in the said suit. Suit had been filed for the relief of declaration to the effect that plaintiffs have an easementary right to pass through the cart way indicated in letters C D', in the land belonging to the defendant. The said suit came to be decreed in part holding that no cart way is in existence but it is only a pathway. The said judgment and decree passed on 09.03.1998 was called in question, by the plaintiff by filing an appeal u/S. 96 of CPC in R.A. No. 36/1998 before the Court of Senior Civil Judge, Jamakhandi. The said appeal so filed by the plaintiffs has been allowed holding that there is a cart way in the land of the defendant as indicated in letters 'CD' and accordingly appeal is allowed modifying the judgment and decree of the trial Court. Being aggrieved by the divergent judgment and decree of the first appellate Court, defendant is before this Court by filing appeal u/S. 100 CPC. Several grounds have been urged apart from proposing several questions of law. The facts leading to the filing of the suit in O.S. No. 141/93 are as follows: 2. Plaintiffs and defendants have lands adjacent to each other. A rough sketch is appended to the plaint showing the existence of cart track. Plaintiffs have five strips of land in different sub survey numbers of sy. No. 15 and the entire 5 strips of land running East to West are indicated in letters 'IFHG'. The land of the defendant is to the North of the land of plaintiffs and the same is in sy. No. 15/6. The strip of land indicated in letters 'BCED' bearing sy. No. 15/1 is on the North Eastern side of the land of the plaintiffs. The said strip runs North-South. According to the plaintiffs, a cart way is in existence on the boundaryline of land bearing sy. No. 15/1 and it runs South-North. No. 15/6. The strip of land indicated in letters 'BCED' bearing sy. No. 15/1 is on the North Eastern side of the land of the plaintiffs. The said strip runs North-South. According to the plaintiffs, a cart way is in existence on the boundaryline of land bearing sy. No. 15/1 and it runs South-North. This is stated to be the only access to the land of the plaintiffs and therefore they have been using the same for over a period of 20 years and when the defendants started interfering with the use of this strip they were forced to file a suit for the relief of declaration that they have a right to pass through 'CD' cart track to reach their strips and for consequential relief of permanent injunction. 3. The said suit was resisted by filing a written statement denying all the material averments in respect of existence of cart track on the Eastern side of the land of the defendant and the plaintiffs using the same for quite a long time. Plaintiffs are stated to be most influential persons in the locality and are trying to prejudice him. According to the plaintiffs, there are other ways to the East and West of the plaintiffs" lands just a few yards from their lands and they have been using the same from quite a long time and that buses and taxies are also running through and they are tar roads. Defendant is stated to have all the right to protect his property. Hence he has prayed for dismissal of the suit. 4. On the basis of the above pleadings the following issues are framed: "1) Whether the plaintiff proves the correctiveness of the plaint hand sketch? 2) Whether the plaintiff's prove that they are using CD cart way since immemorial time? 3) Whether the plaintiffs prove the CD is the only way to reach their respective lands? 4) Whether the defendant proves that the plaintiffs having alternatively way to their land as contended in the W.S.? 5) Whether the plaintiffs are entitled for decree sought? 6) What decree or order?" 5. First plaintiff is examined as P.W. 1 and 2 more witnesses have been examined. As many as 10 exhibits have been got marked. Defendant is examined as D.W. 1 and one Siddagouda is examined as D.W.2. No documents have been got marked on behalf of the defendant. 6) What decree or order?" 5. First plaintiff is examined as P.W. 1 and 2 more witnesses have been examined. As many as 10 exhibits have been got marked. Defendant is examined as D.W. 1 and one Siddagouda is examined as D.W.2. No documents have been got marked on behalf of the defendant. Ultimately, issue No. 1 has been held partly in the affirmative holding that there exists only a pathway on the Eastern side of the land of the defendant. Issue No. 2 and 3 are held in the affirmative. Issue No. 4 is held in the negative. Ultimately, suit is decreed granting only the relief of easementary right in respect of the pathway and not the cart way. 6. Against the said judgment and decree an appeal was filed u/S. 96 of CPC before the first appellate Court raising several grounds. The learned Judge of the first appellate Court, on hearing the arguments from the learned counsel appearing for the parties has chosen to frame the following three points for consideration as found in page n. 6 of the judgment. "1. Whether these appellants being plaintiffs before the trial Court have proved that the alleged CD way shown in hand sketch annexed to the plaint is cart track in existence since time immemorial and the same is used by them as well as by their ancestors in order to reach their Southern side portion of the land out of the same survey number, i.e., 1 and in sy. No. 15/2 of Kuragod village and they have got right of easement of necessity over the same as alleged? 2. Whether the findings of the trial Court, its approach towards facts and the circumstances of the case in arriving at conclusion that the CD. way is not a cart track and it is only a path way and granting of decree for declaration to the effect is erroneous, illegal, perverse, capricious and against principles of law and as such the same is not sustainable and it is liable to be set aside by interfering in this appeal, in order to grant the relief of declaration as prayed by the plaintiffs in their suit before the trial Court? 3. What order?" 7. Ultimately, point Nos. 3. What order?" 7. Ultimately, point Nos. 1 and 2 have been answered in the affirmative and appeal is allowed in its entirety and suit is decreed as prayed for by granting the relief of declaration of title and permanent injunction in regard to the cart way found in letters 'CD'. It is this divergent judgment and decree which is called in question in this appeal filed u/S. 100 of CPC. 8. Learned counsel for the appellants has vehemently argued that the very evidence of the plaintiff and his witnesses has demolished the case of the plaintiff in regard to the existence of the cart way. It is further argued that the first appellate Court, being the final Court of facts, has not properly reassessed the evidence in right perspective and has adopted wrong approach to the real state of affairs. It is argued that no cogent and convincing reasons are assigned by the first appellate Court to upturn a well considered judgment of the trial Court and therefore the judgment and decree of the first appellate Court is not sustainable either in law or on facts. 9. Per contra learned counsel for the respondents has vehemently argued in support of the judgment of the first appellate Court, contending that the defendant has not been able to effectively prove the existence of alternative ways to reach the land of the plaintiffs. Just because defendant has taken up a plea in the written statement that there are alternative ways to reach the lands of the plaintiffs, it would be insufficient unless it is properly substantiated. It is argued that the first appellate Court has adopted right approach to the real state of affairs and has taken into consideration the totality of the case to allow the appeal and decree the suit as prayed for. My learned predecessor has framed the following substantial questions of law on 19.10.2005. It is argued that the first appellate Court has adopted right approach to the real state of affairs and has taken into consideration the totality of the case to allow the appeal and decree the suit as prayed for. My learned predecessor has framed the following substantial questions of law on 19.10.2005. "Whether the finding of the First Appellate Court in so far as it relates to reversing the finding of the trial Court and declaring that the CD road is a cart track and not a path way is perverse and arbitrary, being contrary to the material on record and for non-consideration of the admission of the evidence of the witnesses that it is only a pathway and further, for non consideration of the reasons assigned by the trial Court that the CD pathway is not a cart road and it is a pathway?" REASONS: 10. The case put forth by the plaintiffs is that they have lands to the South of the land of the defendant. The fact that the plaintiffs have five strips of land in different hissas of sy. No. 15 is not in dispute. The defendant has land in sy. No. 15/1 and the same is to the North of the plaintiffs land. To the West of the land in sy. No. 15/6 there are four strips of land running South-North. Existence of cart way, according to the plaintiffs is shown in letters 'CD'. According to the plaintiffs, this is the only access available to their land and being agriculturists they have been using this cart way from times immemorial and therefore the defendant cannot obstruct the use of the said cart way. The trial Court has not accepted the case of the plaintiffs. The trial Court has held that there is no pathway which is being used by the plaintiffs to reach their lands. Plaintiff is examined as P.W.I. He has reiterated the contents of the plaint in his examination in chief. He has been cross examined at length by the learned counsel for the defendant. He has admitted in his cross examination that there is a ridge between their land and of the defendant and it is at a higher level. Plaintiff is examined as P.W.I. He has reiterated the contents of the plaint in his examination in chief. He has been cross examined at length by the learned counsel for the defendant. He has admitted in his cross examination that there is a ridge between their land and of the defendant and it is at a higher level. He has further admitted that there are plants on the said ridge and that the said ridge is East-West and on the North-Eastern side of the land of the defendant is a well. He has further admitted that the said ridge is attached to the said well and is in the direction of the South-North. The learned Judge of the trial Court has taken this into consideration to hold that if there was really a cart way in existence, there could not have been any ridge and there could not have been any plants in existence. 11. Learned Judge of the trial Court, has further relied upon some useful information elicited from the mouth of D.W.2-Maruti, who is the second plaintiff in the present case. He has admitted in his cross-examination that there is a pathway on the land of the defendant which is used as an access to the land of the plaintiffs. Though P.W.3 has deposed in his examination in chief about the existence of the cart way on the Eastern side of the land of the defendant running North-South, he has not withstood the rigor of cross-examination. On the other hand, he has specifically deposed in his evidence that on the ridge existing in between the land of the plaintiff and the defendant only one person can pass through and that he has never seen any bullock cart passing through the alleged path. He has further admitted that, to the West of the land of the plaintiffs, is the land of two persons, namely, Babakar and Vibuthimath. He has further admitted that Savaligi main road is attached to the land of these two persons namely Babakar and Vibuthimath. He has further admitted that the said road is at a distance of 200 ft. from the land of the plaintiffs. 12. On the other hand, D.W. 1 has emphatically denied the existence for cart track or foot path. He has further admitted that attached to the land of the plaintiffs on the Western side is a small water canal. He has further admitted that the said road is at a distance of 200 ft. from the land of the plaintiffs. 12. On the other hand, D.W. 1 has emphatically denied the existence for cart track or foot path. He has further admitted that attached to the land of the plaintiffs on the Western side is a small water canal. Siddagouda examined as D.W.2, has specifically deposed in his cross-examination that to the West of the land of the plaintiff, is a Halla and after the said Halla is the land of Babakar and Vibuthimath. He has further deposed that, to the West of the said land of Babakar and Vibuthimath, is the main road and that plaintiffs approach their land in their carts through the land of Babakar and Vibuthimath. He has further deposed that both Babakar and Vibuthimath are still alive. Taking this into consideration the learned Judge of the trial Court has held that only a pathway in existence and not the cart way. 13. The finding in regard to the existence of pathway on the Eastern side of the land of the defendant is not disputed by the defendant, if he had any grouse against the said finding, the defendant should have filed appeal against the judgment of the trial Court. On the other hand he has come up with the appeal u/S. 100 CPC before this Court, as he is aggrieved by the judgment of the first appellate Court. The learned Judge of the first appellate Court has come to the conclusion that there exists a cart track on the Eastern side of the land of the defendant and that is the only access to the plaintiffs to reach their land in sy. No. 15. The first appellate Court is the final Court of facts. It has to reassess the entire oral and documentary evidence in right perspective and it has to give cogent and valid reasons as to why it has not concurred with the trial Court. The first appellate court has two fold duties; (1) to reassess the entire evidence and come to a proper conclusion, and (2) to indicate as to where the trial Court has gone wrong. The first appellate court has two fold duties; (1) to reassess the entire evidence and come to a proper conclusion, and (2) to indicate as to where the trial Court has gone wrong. Just because there is a space on the Eastern side of the land of the defendant which is being used as an access to the land of the plaintiffs, one cannot come to the conclusion that the said access is a cart track. Taking into consideration the existence of ridge in between the land of the plaintiff and the defendant and the ridge being situated at higher level and several lands being found there, and in view of the existence of main road leading to Savaligi on the Western side of the land of neighbours Babakar and Vibuthimath, it was incumbent upon the first appellate Court to have persuaded the parties to file an application for appointment of Commissioner to elucidate the matter in dispute. Some useful answers elicited from the mouth of P.W. 1 to 3 are really in the nature of admission and they throw light about the existence of an access to the land of plaintiff through land of defendant and not about the existence of cart way. If really there exists a cart track and the same is being used by the plaintiffs from time immemorial, there would have been some strong evidence on the land of the defendant and that could have been noticed. 14. The learned Judge of the first appellate Court has come to the conclusion that the defendant has not made out a case about the non existence of alternative ways to reach the land of the plaintiffs. Unless initial burden is effectively discharged by the plaintiff, onus does not shift on the other side even if one were to accept that plaintiffs have been using some portion of the land of the defendant on the Eastern side running South-North as an access to their land. No presumption can be drawn that the said access is a cart track. Whether there are any alternative ways to reach the lands of the plaintiffs will have to be established. Even otherwise, evidence is placed on record to show that plaintiffs have been using the land of Babakar and Vibuthimath as an access to their land through their carts. The information so elucidated P.W.2 and 3 cannot be considered as stray admissions. Whether there are any alternative ways to reach the lands of the plaintiffs will have to be established. Even otherwise, evidence is placed on record to show that plaintiffs have been using the land of Babakar and Vibuthimath as an access to their land through their carts. The information so elucidated P.W.2 and 3 cannot be considered as stray admissions. According to this Court, they are all very important admissions within the purview of Sec. 17 of the Evidence Act. In this view of the matter it can be said with certainty that the first appellate Court has not properly analyzed the oral and documentary evidence in right perspective to come to the conclusion that there exists a cart track as shown in letters 'C D' of the hand sketch appended to the plaint which is part and parcel of the decree. 15. Having said so, appeal cannot be allowed and the judgment and decree of the trial Court cannot be set aside to come to the conclusion that no cart way exists as indicated in letter 'C D'. It is useful to rely upon the decision of the Apex Court reported in AIR 2012 SC 2010 (A. SHANMUGAM V. ARIYA KSHATRIAY RAJAKULA VAMSATHU MADALAYA NANDHAVANA PARIPALANAI SANGAM). In the said decision the Hon'ble Supreme Court has eloquently dealt with the object of judicial proceedings. It is held that object of holding judicial proceedings is to discern the truth and do justice between the parties. Sec. 30 of CPC has also been dealt at length in paragraph No. 42 and 43 of the above judgment and the same are reproduced below as they are relevant:-- "42. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges. Section 30 CPC reads as under:-- 30. Power to order discovery and the like. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges. Section 30 CPC reads as under:-- 30. Power to order discovery and the like. - Subject to such conditions and limitations as may be prescribed, the Court may, at any time either of its own motion or on the application of any party, - (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit 43. "Satyameva Jayate " (Literally: "Truth Stands Invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows: "Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides.'' 16. In the said decision reliance has also been placed on the report submitted by Dr. Justice Malimath Committee on judicial reforms. It is further held, placing reliance upon the said report, that the Judges of all Courts need to play an active role. 17. It is in this regard a decision of this Court reported in ILR 2010 KAR 897 (N. SWAMYGOWDA v. RAMEGOWDA AND OTHERS) is relevant. It is a decision rendered while discussing the provisions of Order 26 Rule 9 of CPC in regard to the appointment of Commissioner to make local investigation. In para No. 9 of the said decision at page 901, this Court has held that the Court can even compel the parties to agree for appointment of a Court Commissioner. It is further held that if there is a serious dispute with regard to the area and boundaries of a land, non appointment of a Commissioner would result in serious miscarriage of justice. 18. It is further held that if there is a serious dispute with regard to the area and boundaries of a land, non appointment of a Commissioner would result in serious miscarriage of justice. 18. In a decision reported in JT 2000 (7) SC 379 (SHREEPAT v. RAJENDRA PRASAD AND OTHERS) the Apex Court has held, appointment of a Survey Commissioner to locate the place in dispute, would be feasible as non appointing of a Surveyor has resulted in serious miscarriage of justice. 19. If a Commissioner had been appointed by the Court either on its own or on the application of the parties before it, to elucidate the matter in dispute, it would have helped the Court in arriving at proper conclusion about the existence of pathway or cart way. If it is found that there is absolutely no access to the land of the plaintiffs, the Court will be in an advantageous position to take proper decision. Plaintiffs are asserting that there is a cart track and that is the only way. Defendant has emphatically denied the existence of any access in his land through the land of the plaintiffs. The defendant has not challenged the judgment of the defendant. Thus it becomes clear that there exists an access to the land of the plaintiffs in the land of the defendant. Whether it is a cart track or pathway will have to be found by proper elucidation of the matter in dispute. In this regard, the decision rendered in A. Shanmugam's case by the Supreme Court is relevant and nothing comes in the way of the Court to appoint a Commissioner on its own or persuade the parties before it to make an application in regard to the appointment of Commissioner so that the disputed matter could be elucidated. 20. Appointment of a Commissioner in a case like this is not to collect evidence but an attempt to obtain evidence which from its very peculiar nature can only be had at the spot. 20. Appointment of a Commissioner in a case like this is not to collect evidence but an attempt to obtain evidence which from its very peculiar nature can only be had at the spot. The first appellate Court has all the trappings of a Civil Court dealing with original suits it can appoint Commissioner under Order 26 Rule 9 of CPC or it can allow application filed for amendment of pleadings under Order 6 Rule 12 CPC or even consider an application filed under Order 1 Rule 10 of CPC or under Order 14 of CPC or under Order 41 Rule 27 of CPC. Even otherwise, the first appellate Court whose Presiding Officer is a more experienced Judge, would be in an advantageous position to assess the oral and other documentary evidence in the light of the report of a competent Court Commissioner. It need not be reiterated that the report of the competent Court Commissioner would help the Court in arriving at a proper conclusion. 21. In this view of the matter, the appeal will have to be allowed and matter needs to be remitted to the first appellate Court to call upon the parties to make an application for appointment of a Commissioner or the Court itself to appoint a Commissioner on its own in order to get a report and then to decide the matter comprehensively. Hence, the substantial question of law has to be answered in the affirmative holding that the finding of the first appellate court about the existence of the 'C D' cart track is perverse and arbitrary and being contrary to the materials placed on record. But on that ground alone judgment of the first appellate Court cannot be set aside and the judgment of the trial Court cannot be restored. A comprehensive decision has to be taken only after a report is received by a competent Court Commissioner which would help the Court to arrive at a proper and comprehensive conclusion. ORDER Appeal is allowed and matter is remitted to the first appellate Court, i.e., Court of Prl. Senior Civil Judge, Jamakhandi to restore the appeal in R.A. No. 36/95 to call upon the parties to file an application for appointment of a Commissioner or the Court itself to appoint a Commissioner on its own and get a comprehensive report from the Commissioner and then to decide the matter comprehensively. Senior Civil Judge, Jamakhandi to restore the appeal in R.A. No. 36/95 to call upon the parties to file an application for appointment of a Commissioner or the Court itself to appoint a Commissioner on its own and get a comprehensive report from the Commissioner and then to decide the matter comprehensively. The parties shall appear before the first appellate Court on 30.06.2014 without fail and the learned Judge shall try to dispose of the appeal as early as possible, not later than 20.12.2014. The parties are directed to co-operate with the learned Judge. It is made clear that all the contentions are kept open and the oral and documentary evidence already adduced before the trial Court will be in tact for all practical purposes and the learned Judge to reassess the same after obtaining report of the Commissioner. Nothing comes in the way of the Court to examine the Commissioner, if examination of the Commissioner is essential. There is no order as to costs.