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2015 DIGILAW 554 (KAR)

Neelamma Muthanna v. G. K. Ramchandra

2015-06-02

S.ABDUL NAZEER

body2015
JUDGMENT : S. Abdul Nazeer, J. 1. This appeal is directed against the judgment and decree in R.A. Nos. 69/2010 and 85/2012 dated 15.12.2012 on the file of the District Judge at Madikeri confirming the judgment and decree in O.S. No. 111/2002 dated 5.10.2010 on the file of the Senior Civil Judge, Madikeri. The respondents herein are the plaintiffs. They filed the above suit for declaration that they are the absolute owners of the suit schedule lane and for injunction restraining the defendants, their men, agents or anybody claiming under them from trespassing over, interfering with, obstructing or otherwise causing nuisance to the suit lane. According to them, they have purchased the property under a sale deed at Ex. P36 dated 28.9.1990. The lane in question is also a part of the said property. They have been using the lane for their ingress and aggress. Their vendor was one S.R. Vasudeva. After purchase of the property, the katha has also been transferred in their favour. 2. The defendants have filed their written statement denying the plaint averments. They have also filed a counter claim seeking declaration that they are the owners of the said lane. According to them, they have purchased the property adjacent to plaintiffs' property from S.R. Vasudeva under Ex. P30 sale deed dated 11.4.2001. The lane in question is part of their property. 3. The trial Court dismissed the claim of the plaintiffs insofar as declaratory relief is concerned. The counter claim of the defendants seeking declaration is also dismissed. The defendants were restrained from trespassing over, interfering with or obstructing or otherwise causing nuisance to the said lane. Similarly, plaintiffs were also restrained from interfering with or in any manner trespassing over the suit lane thereby causing obstruction for the use of the said lane by the defendants. 4. The defendants filed appeal R.A. No. 85/2012 insofar as rejection of their counter claim for declaratory relief is concerned. They have also filed a separate appeal in R.A. No. 69/2010 challenging the judgment and decree of the trial Court granting permanent injunction in favour of the plaintiffs. The appellate Court on re-appreciation of the materials on record has dismissed the appeals. 5. The contention of the learned Counsel for the appellants is that the suit lane is a part of the property purchased by them under the sale deed at Ex. P30 dated 11.4.2001. The appellate Court on re-appreciation of the materials on record has dismissed the appeals. 5. The contention of the learned Counsel for the appellants is that the suit lane is a part of the property purchased by them under the sale deed at Ex. P30 dated 11.4.2001. The said lane has not been sold in favour of the plaintiffs. The plaintiffs have not sought any easementary right over the said lane. In fact, the property of the plaintiffs connects bypass road on the northern side. 6. On the other hand, the contention of the learned Counsel for the respondents is that the common vendor of plaintiffs and defendants, namely, S.R. Vasudeva sold certain property by executing a sale deed at Ex. P36 dated 29.8.1990. The suit lane is part of the said property. Both the Courts have held that the lane in question is a common passage. When the lane has been sold in favour of the plaintiffs as early as on 29.8.1990, question of selling the same by S.R. Vasudeva in favour of the defendants under Ex. P30 dated 11.4.2001 does not arise. He prays for dismissal of the appeal. 7. I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record. 8. According to the plaintiffs, they have purchased the property under the sale deed at Ex. P36 dated 28.9.1990 and that the suit lane is part of the property purchased by them. Perusal of the recitals contained in the document clearly indicate that they have not purchased the suit lane. In the writ petition filed by plaintiff No.1 in W.P. No.15349/1994, they have taken a contention that the passage leading to their establishment (Video Parlour) from the main road (the suit lane) is a common passage in which they have a right to pass through. Taking into consideration the oral and documentary evidence on record, the courts below have rightly held that the plaintiffs are not the owners of the said passage and that it is only a common passage. The defendants claim absolute right over the suit lane on the basis of the sale deed at Ex. P30 dated 11.4.2001. Perusal of this document would clearly show that the defendants have not purchased the suit lane under this document. The defendants claim absolute right over the suit lane on the basis of the sale deed at Ex. P30 dated 11.4.2001. Perusal of this document would clearly show that the defendants have not purchased the suit lane under this document. D.W. 1 in his evidence has deposed that it is being used by them even prior to the purchase of the property when they were tenants in respect of the very same property purchased by them under the sale deed at Ex. P36 and that it has been used by the people to go to the Video Parlour of the plaintiffs and also the persons who are residing on either side of the said lane. It was suggested to P.W. 1 in his cross-examination that there are so many houses situated on either side of the lane. The defendants have admitted that this is the only lane, which starts from Rathabeedhi and the persons, who are residing on either side of the lane have been using the same. As stated above, there is no specific recital in the sale deed that the suit lane is situated within the area purchased by them. Taking into consideration the oral and documentary evidence on record, the courts below have held that the suit lane does not exclusively belong to the defendants. The finding of fact recorded by the courts below is on the basis of the appreciation of the materials on record and there is no perversity, illegality or irregularity whatsoever in those findings. The appeal does not involve any substantial question of law. It is accordingly dismissed. In view of the dismissal of the appeal as above, I.A. No. 1/2015 does not survive for consideration. It is accordingly dismissed. No costs.