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2023 DIGILAW 25 (KAR)

M V Panchaksharaiah v. Kudri Savanthavva

2023-01-03

M.G.S.KAMAL

body2023
JUDGMENT/ORDER 1. Present appeal is by the plaintiff being aggrieved by the judgment and order dtd. 16/8/2007 passed in R.A.No.22/2006 on the file of the Principal Civil Judge (Sr.Dn.) and JMFC, Hospete (hereinafter referred to as 'the First Appellate Court'), in and by which the First Appellate Court while allowing the appeal filed by the defendants set aside the judgment and decree dtd. 17/1/2006 passed by the Civil Judge (Jr.Dn.), H.B.Halli in O.S.No.73/2004. 2. The aforesaid suit in O.S.No.73/2004 was filed by the plaintiff for relief of declaration of his right over the property delineated as 'ABCD' road and for mandatory injunction, directing the defendants to remove basement wall constructed on the property delineated as 'EFGH', on the premise, that he is the absolute owner in peaceful possession and enjoyment of the land bearing Sy.No.660/AE1 which is described as 'A' schedule property in the plaint. That towards Southern side of the said property, plots have been formed and there is road on the Eastern side commencing from Halagapur road. That the plaintiff required to reach his land from Southern to Northern side after crossing the said Halagapur road. That in between the plots Nos.40, 26, 54 and 39, there exists a 60 feet road through which the plaintiff has to reach to his property. Except the said road, there is no other alternative access to reach his property. 3. That the defendants are the mother and daughter, who are living in a joint family and have no right or interest over the said road, except between the aforesaid plots. That the defendants have constructed a house, portion of which is on the said road. That the construction made by the defendants is illegal and obstructing access of the plaintiff. Hence, the suit. 4. On service of summons, defendants filed written statement denying the plaint averments. It is specifically contended that the suit is also hit by principles of res-judicata in view of the decree passed in suit in O.S.Nos.65/2002 and 66/2002. It is contended by the defendants that they are the absolute owners of plots No.98A and 98B and that except the road, there is nothing in between the said plots as claimed by the plaintiff. That the defendants have constructed only fencing wall on their plots and the plaintiff has no locus standi to question the same. 5. It is contended by the defendants that they are the absolute owners of plots No.98A and 98B and that except the road, there is nothing in between the said plots as claimed by the plaintiff. That the defendants have constructed only fencing wall on their plots and the plaintiff has no locus standi to question the same. 5. Based on the pleadings, the Trial Court framed the following issued: "1) Whether the plaintiff proves that the existence of Rasta measuring 60 feet wide as shown ABCD in the Hand sketch map? 2) Whether the plaintiff proves that he has got right of easementary over the ABCD Rasta as shown in the hand sketch map? 3) Whether the plaintiff proves that defendants have illegally undertaken work of construct on over the portion of rasta which is shown in EFGH of handsketch map? 4) Whether the defendants proves that the suit is hit by the principles of res judicata ? 5) Whether the plaintiff is entitled the relief of Mandatory injunction? 6) Whether the plaintiff is entitled the relief of declaration? 7) What order or Decree ?" 6. The plaintiff examined himself as PW1 and exhibited 10 documents marked as Ex.P1 to Ex.P10 and examined 3 witnesses as PW2 to PW4. Defendant No.1 examined himself as DW1 and exhibited 15 documents marked as Ex.D1 to Ex.D15. 7. On appreciation of evidence, Trial Court has answered issues No.1, 2 and 6 in the Affirmative and issues No.3, 4 and 5 in the Negative and consequently passed the judgment and decree declaring that the portion of the land shown as 'ABCD' in the rough sketch, which is a 60 feet road and that the plaintiff having right to way over the said road. However, relief of mandatory injunction for removal of alleged construction of basement wall by the defendants on the portion shown as 'EFGH' was rejected. Being aggrieved by the same, defendants filed regular appeal in R.A.No.22/2006 before the First Appellate Court considering the grounds urged in the memorandum of appeal. The First Appellate Court framed the following points for its consideration and answered the same in the affirmative, allowed the appeal and set aside the judgment and decree passed by the Trial Court: 1) Whether the suit is hit by principles of Resjudicata? 2) Whether the impugned judgment and decree requires any interference by the Court? 3) What order? 8. The First Appellate Court framed the following points for its consideration and answered the same in the affirmative, allowed the appeal and set aside the judgment and decree passed by the Trial Court: 1) Whether the suit is hit by principles of Resjudicata? 2) Whether the impugned judgment and decree requires any interference by the Court? 3) What order? 8. Being aggrieved by the same, the plaintiff is before this Court. 9. This Court while admitting the appeal framed the following substantial questions of law: 1. Whether the First Appellate Court was right in reversing the decree of the Trial Court on the ground of resjudicata is a question of law? 2. Whether the principle of res-judicata applies to the parties in respect of the same parties with a different suit properties as considered by the First Appellate Court is a question of law? 3. Whether the First Appellate Court was justified in reversing the decree of the Trial Court on the principles of resjudicata applicability? 4. Whether a right of way as necessity can be claimed once a public road is a question of law? 10. Sri.Sanjay S Katageri, learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submitted that the First Appellate Court grossly erred in accepting the contention of defendants that all the issues have been answered in the previous suit and therefore the suit was barred by principles of res-judicata. The said finding without any elaboration cannot be sustained. That the said finding given by the First Appellate Court is contrary to material evidence produced on record. That the subject matter of the present suit out of the earlier suit was completely different and as the earlier suit pertains to plot Nos.98A and 98B, the pleadings and the evidence produced in the said suit are also completely different. In that view of the matter, learned counsel submits that the judgment and order passed by the First Appellate Court is erroneous. 11. Sri.S.N.Banakar, learned counsel for the respondents on the other hand submits that the issue involved in the earlier suit and the present suit is one and the same. The issue was one with respect of 60 feet wide road which was determined in the earlier suit as well. 11. Sri.S.N.Banakar, learned counsel for the respondents on the other hand submits that the issue involved in the earlier suit and the present suit is one and the same. The issue was one with respect of 60 feet wide road which was determined in the earlier suit as well. He submits that in that view of the matter, there is no illegality committed by the First Appellate Court in allowing the appeal and setting aside the judgment and decree passed by the Trial Court. Learned counsel also submits though the plaintiff has claimed right of way by way of easementary right but has not shown as to in respect of which property the right of way is claimed. 12. Heard the learned counsel appearing for both the parties and perused the records. 13. The First Appellate Court has taken into consideration the fact that defendant No.1 in the present suit had filed suit in O.S.No.65/2002 and defendant No.2 in the present suit had filed suit in O.S.No.66/2002 against the present plaintiff in respect of plots bearing No.98A and 98B respectively. It was the contention of the defendants who are the plaintiffs in the said suits that they are the owners and in possession of their respective plots, to which the plaintiff herein had contended that there are no such plots in existence but the same is 60 feet wide road, which is shown as letters 'ABCD' in hand sketch enclosed to the present suit. The said suits were decreed as per Exs.D12 and D15 holding the same to be plots bearing No.98A and 98B and there was no road as such. 14. Aggrieved by the said judgment and decree, the plaintiff herein had filed appeals which were also disposed of confirming the judgment and decree passed in the said suits. The plaintiff in the present suit had carried the same in the second appeal before this Court. Taking into consideration all these aspects, the First Appellate Court came to the conclusion that the issue already having been adjudicated and decided by a competent Court of law, the present suit on the same aspect of the matter in respect of the same subject matter and against the same parties was hit by principles of res-judicata. Taking into consideration all these aspects, the First Appellate Court came to the conclusion that the issue already having been adjudicated and decided by a competent Court of law, the present suit on the same aspect of the matter in respect of the same subject matter and against the same parties was hit by principles of res-judicata. Based on the aforesaid reasoning, the First Appellate Court came to the conclusion that the reasoning given by the Trial Court was unsustainable and the same was without reference to the earlier adjudication and conclusion of the matter arrived in O.S.Nos.65/2002 and 66/2002. 15. In view of the above reasoning the substantial questions of law framed as above are required to be answered in the affirmative. The First Appellate Court has appreciated the facts and legal aspects of the matter in right prospective warranting no interference. Appeal is therefore dismissed. 16. In view of the above, pending applications, if any, do not survive for consideration.