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2023 DIGILAW 1127 (KAR)

Baby v. Leelavathi Shettigarthy

2023-09-25

H.P.SANDESH

body2023
JUDGMENT 1. Heard the learned counsel for the appellants. 2. This appeal is filed against the concurrent finding and claim of the plaintiff before the Trial Court that the plaintiff and his predecessors were cultivators by profession, cultivating agricultural lands on tenancy right. The said agricultural lands were being cultivated by the various branch families of the ancestors of the plaintiff separately by dividing it in separate block of lands. After coming into force of the Karnataka Land Reforms Act, 1974, the plaintiff and other branch families applied for grant of occupancy right in respect of the properties cultivated by them separately. The Land Tribunal Udupi after holding necessary enquiry has granted occupancy right to all the branch families of the plaintiff including the plaintiff separately in respect of the lands cultivated by them as per the order dtd. 15/9/1981. The plaintiffs' property bearing Sy.No.282/4 portion measuring 26 cents and the property of the defendant Nos.1 to 7 bearing Sy.No.282/4 portion measuring 30 cents are adjacent plots. 3. The aforesaid property of defendant Nos.1 to 7 is situated to the west of plaintiffs' property. The dispute is lingering between the parties pertaining to the aforesaid two properties. The plaintiff has constructed a house, hatti, kottige etc., in his property during the year 1991, whereas the late husband of the 1st defendant and the father of defendant Nos.2 to 7 late Sadashiva Shettigara had constructed a house, hatti kottige etc., during his life time in his aforesaid property in the year 1981. Apart from that the plaintiff and defendants have been allotted with some more properties which are not in dispute. 4. It is the contention that the plaintiff and his children and defendant Nos.2 to 8 were born and brought up in the aforesaid family house and they are enjoying more than 100 years. The road was being used to reach the Palli-Shirva mud road which was running through Sy.No.188/B- portion measuring 10 cents, Sy.No. 188/A-portion measuring 1.56 cents, Sy.No.558/2- measuirng 1.02 cents. The said 12-13 feet width mud road about 100 feet long was in use even during the days when he was living in his family house and even after living in his house and the same has been caused obstructions by the defendants. Earlier defendants appeared and consented to said acquisition on some portion in their land. The said 12-13 feet width mud road about 100 feet long was in use even during the days when he was living in his family house and even after living in his house and the same has been caused obstructions by the defendants. Earlier defendants appeared and consented to said acquisition on some portion in their land. This panchayat road is being used by the parties to the suit to reach Palli-Shirva road after coming from road R1. Except the road R1 there is absolutely no other alternative road to reach the residential house of the plaintiff. Hence, prayed the Court to grant the relief of easement of necessity. 5. The defendants are in inimical terms with the plaintiff for several years. That on 15/3/2000 they obstructed the road R1 by placing the stone and dry shrubs etc., with an intention to block the road permanently. However the plaintiff removed the said obstruction next day and immediately, the plaintiff approached the Shirva Police Station. The police refused to accept the complaint. On 20/3/2000 the defendants started digging a new road R2 in their property in Sy.No.282/4-portion measuring 0.30 cents to a width of 10 feet to reach their house. Hence, filed the suit for the relief of claiming the right of easement. The criminal case has also registered. 6. The defendants have appeared and filed the written statement. The defendant Nos.1 to 7 appeared through their counsel. The defendant No.8 did not appear before the Court, hence he was placed exparte. The 4 th defendant has filed written statement resisting the suit of the plaintiff and other defendants have adopted the same. The defendants have denied the entire case of the plaintiff and took the contention that plaintiff is trying to mislead the Court by giving false picture in respect of schedule property and alleged road. Absolutely there is no alleged road R1 existed in the plaint 'A' schedule property. 7. Based on the pleadings of the parties the issues are framed and also allowed the parties to lead evidence and the plaintiff examined his GPA holder as PW1 and examined other three witnesses as PW2 to PW4 and got marked Ex.P1 to Ex.P37. The defendants also examined one witness as DW1 and got marked Ex.D1 to Ex.D7. 8. 7. Based on the pleadings of the parties the issues are framed and also allowed the parties to lead evidence and the plaintiff examined his GPA holder as PW1 and examined other three witnesses as PW2 to PW4 and got marked Ex.P1 to Ex.P37. The defendants also examined one witness as DW1 and got marked Ex.D1 to Ex.D7. 8. The Trial Court having considered material available on records, comes to the conclusion that the plaintiff has fails to prove that there was a mud road of 12 to 13 feet width starting from Sy.No.282/4-portion measuring 0.26 cents and Sy.No. 282/4 portion measuring 0.30 cents through Sy.No. 188/B portion measuring 1.78 acres and the said road being used by the parties to the suit to reach the Palli-Shirva main road and also the plaintiff further fails to prove that except the road R1 there absolutely no other alternative road to reach his residential house situated at Sy.No.282/4 and also fail to prove that they acquired the easementary right over the R1 road by prescription and answered the issues in the negative and the Trial Court dismissed the suit. 9. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in RA No.34/2010 before the appellate Court. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point with regard to the existence of the road and whether the plaintiff has established the easementary right of prescription and also obstruction by the defendant and make use of the R1 road. 10. The First Appellate Court on reappreciation of both oral and documentary evidence and also taken note of the admission given by the PW1 in the cross-examination in paragraph Nos. 19 and 20 also considered the evidence of PW2. Since, the PW2 categorically admitted that behind the back of the house of the plaintiff, there is pathway and the same is also taken note of and also taken note of the admission given in paragraph No.24 comes to the conclusion that the plaintiff fails to prove that the road which the claimed is the only road in order to access their land and comes to the conclusion that there is an alternative road. The plaintiff has also proved the very existence of the road and the appellate Court dismissed the appeal. 11. The plaintiff has also proved the very existence of the road and the appellate Court dismissed the appeal. 11. Being aggrieved by the said judgment and decree of the First Appellate Court, the present second appeal is filed before this Court. The counsel appearing for the appellants would vehemently contend that both the Courts fails to consider the evidence of DW1 where there is an admission given by the DW1 and also fails to take note of the commission report which is marked at Ex.P14 and also the evidence of PW3-Commissioner in proper perspective. Hence, it requires interference and admit and frame the substantial question of law. 12. Having heard the appellants' counsel and also on perusal of the materials, particularly the issue Nos.1 and 3 answered by the Trial Court with regard to the road as pleaded in the pliant and coming to the conclusion that the plaintiff fails to prove the fact that except the road R1 there is no alternative road to reach his residential house and while granting the relief of easementary right, the plaintiff has to prove the fact that without the said road, no other alternative road to invoke the right of easement of prescription. 13. Taking into note of the evidence available on record, particularly the admission given by the PW1 and PW2, both the Courts have given finding by giving anxious consideration to the material on record. The First Appellate Court has also in detail discussed the evidence of PW1, PW2 and also DW1 and overall on re-appreciation of the evidence, the appellate COurt has not committed any error. This Court can exercise the power under Sec. 100 of CPC only if any perversity is found in the appreciation of evidence and no substantial question of law is also found in this case. Though the Counsel for appellant has raised substantial question of law in the appeal and the same is not the substantial question of law since, both the Courts have given fact finding with regard to the existence of the alternative road and the plaintiff has not proved that R1 road is exclusive road and when such being the case, I do not find any error committed by the Trial Court and the First Appellate Court and the plaintiff fails to prove that the R1 road is the only other alternative road to reach the residential house situated in Sy.No.282/4. Hence, it is not a case to admit and frame any substantial question of law. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.