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2017 DIGILAW 865 (KAR)

T. Sharadamma v. R. Anil Kumar

2017-06-01

K.S.MUDAGAL

body2017
JUDGMENT : 1. This plaintiff’s second appeal arises out of the judgment and decree dated 22.07.2015 passed by the Prl. Senior Civil Judge, Mysuru in R.A.No.68/2012. By the impugned judgment and decree, the first Appellate Court has confirmed the judgment and decree of the trial Court dismissing the suit of the plaintiff for permanent injunction. 2. Respondents are the defendants before the trial Court. For the purpose of convenience, parties will be referred to hereafter with their ranks before the trial Court. Plaintiff filed O.S.No.581/2006 before the III Additional Civil Judge, Mysuru for permanent injunction against the defendants from causing obstructions in plaintiff using road situated on the eastern side of the suit property. Suit schedule property is the house bearing door No.N/1414 new Municipal Door No.657 SYCES quarters, Pheerkhan Street, Nazarbad, Mysuru. 3. Plaintiff contended that her father had purchased the said property from the 3rd defendant under the registered sale deed dated 16.08.1971. She contended that on the Eastern side of the suit property there is a public road belonging to Mysuru City Corporation and defendants 1 and 2 claiming that they have purchased the suit property from 3rd defendant are obstructing her from using the said road. Thus she sought permanent injunction. 4. Defendants No.1 and 2 filed written statement and contested the suit. They denied the contention that the property lying on Eastern side of the plaintiff’s property is the public road and she is using that. They contended that they have purchased the property situated on the Eastern side of the suit property under the registered sale deed dated 10.02.2006 and are in absolute possession of the same. 5. On the basis of the said pleadings, the Trial Court framed the following issues: “1. Whether the plaintiff proves that she is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit? 2. Whether the plaintiff proves interference by the defendants? 3. Whether the plaintiff is entitled to the relief as sought for? 4. What Order or Decree?” 6. Before the trial Court, plaintiff examined herself as PW-1 and got marked Exs.P.1 to P.14 and defendant No.1 was examined as DW.1 and got marked Exs. D.1 to D.10. 2. Whether the plaintiff proves interference by the defendants? 3. Whether the plaintiff is entitled to the relief as sought for? 4. What Order or Decree?” 6. Before the trial Court, plaintiff examined herself as PW-1 and got marked Exs.P.1 to P.14 and defendant No.1 was examined as DW.1 and got marked Exs. D.1 to D.10. On hearing the parties, trial Court dismissed the suit holding that the plaintiff has failed to prove that on the Eastern side of the suit property there is a public road as contended by her. 7. She took up the matter before the Principal Senior Civil Judge, Mysuru in R.A. No.68/2012. In the said appeal plaintiff filed I.A. No.9 for local inspection of the said property and I.A. Nos.10 and 11 for appointment of Commissioner. The first appellate Court after hearing the parties, by the impugned judgment dismissed I.A. Nos. 9, 10, 11 and the appeal holding that the plaintiff’s own document Ex.P.1-the registered sale deed in favour of her father under which she claims title does not reveal existence of the public road on the Eastern side. The first appellate Court further held that the documentary evidence itself shows that there is no road as contended by the plaintiff and there is no ambiguity to elucidate the matter. Therefore, appointment of the Commissioner is not required. 8. Sri Ravi H.K. learned counsel for the appellant submits that the case has to be admitted for the following reasons. (i) Since the Trial Court did not give sufficient opportunity to the plaintiff to lead her evidence and to cross examine DW.1, the plaintiff filed I.A. Nos.9, 10 and 11 to adduce additional evidence and for local inspection through commission and the first appellate court dismissed them. (ii) The first appellate Court should have allowed those applications and remanded the matter for fresh consideration. (iii) Courts below did not appreciate that as per the Sketch-Ex.P14 a road exists on the Eastern side of the suit property. 9. As against this Sri Rakshith Jois Y.P., learned counsel for the respondents contends that both the Courts below relying on the documentary evidence more particularly, the plaintiff’s own title deed-Ex.P1 held that on the Eastern side of her house there is no public road. 9. As against this Sri Rakshith Jois Y.P., learned counsel for the respondents contends that both the Courts below relying on the documentary evidence more particularly, the plaintiff’s own title deed-Ex.P1 held that on the Eastern side of her house there is no public road. He contends that since both courts have concurrently held so on appreciation of the documentary and oral evidence no substantial question of law is made out to admit the appeal. He further contends that despite giving sufficient opportunity the plaintiff did not do the needful and therefore there are no grounds to admit the appeal. 10. There cannot be any dispute that under Section 100 of C.P.C. the appeal cannot to be admitted unless a substantial question of law is made out. The Hon’ble Supreme Court in Santosh Hazari vs Purushotham Tiwari deceased by LRs (2001) 3 SCC, 965 has clearly laid the guidelines as to what are the substantial questions of law “The First Appellate Court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law to be a substantial one”. In the light of the above judgment this Court has to assess the present case. 11. The plaintiff claimed that her father had purchased the suit property from the 3rd defendant under Ex.P1-registered sale deed dated 16.08.1971 and he in turn gifted the same to her under registered gift deed dated 6.3.1972. According to her the Eastern boundary of said property is a public road belonging to the Mysuru City Corporation. She has not produced the gift deed relied upon by her to show that in the gift deed the Eastern boundary of the property is shown as the road. 12. According to her the Eastern boundary of said property is a public road belonging to the Mysuru City Corporation. She has not produced the gift deed relied upon by her to show that in the gift deed the Eastern boundary of the property is shown as the road. 12. In Ex.P1 the sale deed of her father the boundaries of the properties are shown as follows: North – Vacant space South – Road East – Vacant space and West – Palace Syces Quarters She did not examine any Municipal Authorities nor produced any layout plan or Municipal plan to prove the existence of the public road. Therefore based on such facts both the courts below have given concurrent findings that plaintiff has not proved the existence of public municipal road on eastern side of his property. 13. So far as granting of sufficient opportunity to lead evidence or to cross examine DW-1, admittedly the plaintiff did not cross-examine DW.1 nor filed any application to recall DW1 to cross-examine him or for leave to lead her further evidence. Hence there is no question of trial Court failing to grant sufficient opportunity to her. The first Appellate Court taking that into consideration has rightly concurred with the findings of the trial Court and rejected his applications to adduce additional evidence. 14. So far as the issue of the dismissal of application for issue of Commission to collect evidence, first of all to collect evidence commission cannot be issued that too at the Appellate stage. It is the discretion of the Court to appoint a commissioner, if at all the same is found necessary to elucidate any facts to enable the court to render the judgment. Since Ex.P1 itself did not indicate the existence of the road on the Eastern Side and the evidence of DW.1 regarding non-existence of such road went un-contraverted, there was no need to issue commission as prayed. Therefore, that does not become a substantial question of law. 15. To prove the sketch Ex.P14 admittedly the plaintiff did not examine the author of the same. Moreover her own document Ex.P1 did not show existence of public road on Eastern side. Therefore the Courts below have not taken that document into consideration. Therefore, that does not become a substantial question of law. 15. To prove the sketch Ex.P14 admittedly the plaintiff did not examine the author of the same. Moreover her own document Ex.P1 did not show existence of public road on Eastern side. Therefore the Courts below have not taken that document into consideration. Stating any thing more about the appreciation of the evidence or about the facts of the case amounts making this court the 3rd Court of facts and this Court cannot venture into that. For the aforesaid reasons, this Court does not find any substantial questions of law to admit the appeal. Therefore, the appeal stands dismissed, consequently I.A. No.1/2015 also stands disposed of.