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2014 DIGILAW 541 (KAR)

Suresh Nilkant Rane v. Prema

2014-06-02

A.V.CHANDRASHEKARA

body2014
JUDGMENT : A.V. Chandrashekara, J. 1. Defendant No. 1 of an original suit bearing O.S. No. 110/1993 which was pending on the file of the Court of Civil Judge (Jr.Dn.), Karwar, is before this Court by filing an appeal under Section 100 CPC. 2. Smt. Prema, Smt. Kasture, Smt. Sharada, were the plaintiffs in the said suit. The said Smt. Prema is no more and is represented by respondent No. 1(a) to 1(c) herein. Similarly, plaintiff No. 2 Kasture is also no more and is represented by respondent Nos. 2(a) to No. 2(c) herein. Third plaintiff Sharada is respondent No. 3 herein. Suit filed for the relief of declaration seeking the right of way and consequential relief of permanent injunction has been decreed as prayed for, vide considered judgment dated 29.06.2002. Appeal filed under Section 96 CPC in R.A. No. 28/2007 before the Court of Addl. Civil Judge (Sr. Dn.), Karwar, is also dismissed. Hence the concurrent findings are called in question before this Court. 3. Perused the judgments of the trial Court as well as the First Appellate Court. Suit had been filed for the relief of declaration to the effect that plaintiffs have got right of way in respect of a space measuring 5 ft. in width and for consequential relief of permanent injunction against the deceased defendant Neelkanth. 4. Case of the plaintiffs is that land bearing Sy. No. 16/1E measuring 5 guntas was purchased from the vendor Sri Laxman Vaman Shenvi on 12.11.1986 through a registered sale deed and that the plaintiffs were tenants under the said vendor. Laxman is stated to have transferred the entire title and right he had in respect of the land in question inclusive of the right of way. Plaintiff and her children have been enjoying the said right of way and this is the only access to their lands for movement of vehicles and cattle. In the year 1993, defendant and his children started denying the right of way and started interfering with the right of way. Hence suit had to be filed. 5. Defendant has specifically denied the hand sketch appended to the plaint and has specifically called upon the plaintiffs to prove all the averments of the plaint strictly. According to defendant No. 1, 1 acre 18 guntas and 12 annas of land in Sy. Hence suit had to be filed. 5. Defendant has specifically denied the hand sketch appended to the plaint and has specifically called upon the plaintiffs to prove all the averments of the plaint strictly. According to defendant No. 1, 1 acre 18 guntas and 12 annas of land in Sy. No. 16 was a samayak right held by Lakshman Vaman Shenvi and Tarabai After the partition amongst themselves, each one got about 29 guntas and 6 annas of land and southern half portion was allotted to Lakshman and northern half portion was allotted to the share of Tarabai. It was agreed between them that Tarabai should leave 4 ft. space on the northern side of her land for the use of one Narayana Deva Pallakki and public of the surrounding area of Sy. No. 12. Plaintiff being the subsequent purchaser of southern side land in Sy. No. 16, which had been allotted to Laxman Shenvi adjoins the government forest land abutting on the southern side of 5 guntas. Defendant's case is that 11 1/2 guntas of land has been purchased by the plaintiff on 12.11.1986 and there is no recital in the said sale deed about the existence of a path way adjoining the northern part of the land of defendant No. 1. Defendant is stated to have put up a compound around the suit land on all the four sites.. The very right of way claimed by the plaintiff has been specifically denied when the plaintiff has space on the southern side of her land to be used as an ingress and egress, more particularly, being the forest land, and hence the question of right of way does not arise, is the contention. 6. On the basis of the above pleadings, following issues came to be framed: 1. Whether plaintiffs prove that they have right of way by an' express grant? 2. Whether plaintiffs prove the existence of suit path way as shown in sketch? 3. Whether plaintiffs prove that suit path way is used by them as of right? 4. Whether plaintiffs prove the alleged obstruction by defendants? 5. Whether suit is not maintainable as stated in Para-15 of the W.S.? 6. Whether plaintiffs are entitled to the relief of declaration and injunction as sought for? 7. To what reliefs the parties are entitled to? 8. For what order or relief? 7. 4. Whether plaintiffs prove the alleged obstruction by defendants? 5. Whether suit is not maintainable as stated in Para-15 of the W.S.? 6. Whether plaintiffs are entitled to the relief of declaration and injunction as sought for? 7. To what reliefs the parties are entitled to? 8. For what order or relief? 7. Smt. Prema is examined as PW1 and one Kuku Keera Gaonkar is examined as PW2. Sainath is examined as DW1 and Laksha Gopal Bhandari is examined as DW2. Sri S.Y. Narvekar, a practicing Advocate had been appointed as Commissioner and he is examined as CW1. Commissioner's report along with the sketch is marked as Exs. C1 to C2. Plaintiff has got marked six exhibits and defendant has got marked two exhibits. Ultimately issues 1 to 4 have been answered in the affirmative. It is held that suit is maintainable and issue No. 6 is also held in the affirmative. Ultimately suit is decreed as prayed for. 8. Against the said judgment and decree, a regular appeal had been filed in R.A. No. 28/2007 before the Court of Addl. Civil Judge (Sr. Dn.), Karwar. On perusing the records of the trial Court and hearing the arguments based on the grounds raised in the appeal memo, the First Appellate Court has dismissed the appeal and thereby the judgment of the trial Court has been upheld. 9. I have heard the learned Counsel appearing for the appellants. Perused the judgments of both the Courts. 10. Both the plaintiff and defendant are purchasers of land and they are abutting to each other. In a case like this, appointment of a Commissioner is absolutely required and plaintiff had got appointed an Advocate as a Commissioner to visit the spot. He has submitted a report and the same is marked as Exs. C1 and C2. Sketch appended to the plaint is supported by the contents of the report and sketch submitted by the Commissioner. Mere existence of a space on the southern side of the plaintiffs land would be insufficient. Even otherwise, the said space shown in letters 'R' and 'S' is a part of government land and it is not made known as to how this space could be made use as an access to the land of plaintiffs. 11. On the other hand, the existence of the disputed space is clearly depicted in the sketch submitted by the Advocate's Commissioner. 11. On the other hand, the existence of the disputed space is clearly depicted in the sketch submitted by the Advocate's Commissioner. Nothing has been culled out from his mouth to discredit the report and sketch produced before the Court. Admittedly he is a disinterested witness. While executing a sale deed vide Ex. P5 in favour of the plaintiffs, the owner has not only transferred the title of the land but also the easementary right he has in respect of the suit schedule property. Though he has not mentioned the exact space as the right of way, he has made a specific reference about the existence of easementary right. If there was no easementary right, there was no necessity to have mentioned the word 'easement' in the suit land in Ex. P5. 12. In Ex. C1 the sketch prepared by the Commissioner there is gate at point 'U' which is about 4 ft. in width and also open gate measuring about 3 1/2 ft. at point 'V'. Thereafter road was extended upto the land of plaintiff by extending its width to 7 ft. On going through the contents of Ex. C1 and the contents of Ex. P5 and the oral evidence of the parties and the Commissioner, the trial Court has come to the conclusion that the said way leads to public road through the land of the defendant. The said path way leads to water tank which is situated towards the northern side of the school building as shown in the Commissioner's sketch marked as Ex. C1. On a combined reading of the contents of the Commissioner's report and the oral evidence adduced, the learned Judge of the trial Court has come to the conclusion that there exists a right of way to the plaintiffs as shown in the rough sketch appended to the plaint and the report and sketch submitted by the Commissioner. 13. The First Appellate Court has reassessed the entire evidence in right perspective that too on the touchstone of intrinsic probabilities. Both the trial Court as well as the First Appellate Court have adopted aright approach to the real state of affairs. There is no reason to interfere with the well considered factual finding about the existence of a right of way to the land of the plaintiffs and the right of way that their predecessor in question had prior to the execution of Ex. There is no reason to interfere with the well considered factual finding about the existence of a right of way to the land of the plaintiffs and the right of way that their predecessor in question had prior to the execution of Ex. P5. The questions of law proposed in the appeal memo are not the substantial questions of law in essence under Section 100 of CPC. Even otherwise, no substantial question of law arises before this Court. There are no good grounds to interfere with the well considered judgment of the trial Court as well as the First Appellate Court. Hence appeal is liable to be dismissed as unfit for admission. ORDER Appeal is dismissed as unfit for admission by upholding the judgments of the trial Court as well as the First Appellate Court.