Arvind vs Dhondi

A.V. Chandrashekara, J.—Plaintiff of an original suit bearing O.S. No. 46/2003 which was pending on the file of the Court of Prl. Civil Judge, (Sr. Dn.), Gokak, is before this Court, challenging the divergent judgment passed by the learned Prl. District Judge, Belgaum, in R.A. No. 142/2008. The appellant is the plaintiff in the said suit and respondent is the defendant in the said suit. Parties will be referred to as plaintiff and defendant as per their ranking given in the trial Court.

Plaintiff is the absolute owner in possession of land bearing R.S. No. 41/3A and has been growing sugarcane crop in his land. The defendant has the land in Sy. No. 41/2 having purchased the same from Ramakrishna Keshav Kulkarni, plaintiffs cousin. The land in Sy. No. 41/3B which is to the south of land in Sy. No. 41/3A belongs to the brother of the plaintiff. Since the defendant who is the owner of land in R.S. No. 41/2 tried to interfere with his title and possession in respect of the land bearing Sy. No. 41/3A, plaintiff chose to file a suit for the reliefs of declaration of title and permanent injunction before the Court of Prl. Civil Judge (Sr. Dn.), Gokak.

The defendant resisted the said suit on the ground that the suit for declaration of title is not maintainable as the defendant has right of way through the land of the plaintiff and his brother to reach his land in Sy. No. 41/2. He has placed reliance upon the earlier suit filed by him in O.S. No. 329/1993 against the same plaintiff for the relief of permanent injunction and having obtained temporary injunction relating to the cart track stated to be in existence in the land of plaintiff as an access to his land in Sy. No. 41/2. He has easementary right of way through a cart track that passes through the land of the plaintiff in Sy. No. 41/3A and his brother in 41/3B, on the eastern side running West South from Malabad-Gugwad road. With these pleadings, he had prayed for dismissal of the suit.

On the basis of the above pleadings following issues came to be framed:

Whether the Plaintiff proves that, he is absolute owner of the suit property shown by letters "A B C D" in the plaint sketch as alleged?

Whether the plaintiff proves the alleged unlawful interference to his peaceful possession and enjoyment of the suit property by the defendants?

Whether the defendant proves the existence of the Cart-track along with the eastern boundary of the land of the plaintiff and Kalyanrao Kulkarni from South upto the land of the defendant?

Whether the valuation for the purpose of Court fee and jurisdiction is the proper?

Whether this court has no pecuniary jurisdiction to entertain and try the suit?

Whether the defendant is entitled for the compensatory cost?

Whether the plaintiff is entitled to the relief sought for?

What Decree or order?

Plaintiff is examined as PW 1 and two witnesses have been examined on his behalf. Record of Rights is marked as Ex. P1. Neither the defendant nor anybody has been examined on his behalf. During the pendency of the suit a Commissioner had been appointed to inspect the spot and submit a report. Accordingly, the Court Commissioner has submitted a detailed report along with a sketch after visiting the spot. On perusal of the entire evidence placed on record, the learned Civil Judge (Sr. Dn.), Gokak, chose to decree the suit as prayed for on 04.08.2007.

Against the said judgment and decree, an appeal came to be filed before the Prl. District Judge, Belgaum, in R.A. No. 142/2008 u/s 96 CPC raising several grounds. After hearing the arguments from the learned Counsel appearing for the parties and having perused the entire lower Court records, the learned Judge of the First Appellate Court has chosen to allow the appeal and thereby has dismissed the suit in its entirety. Hence, the plaintiff is before this Court by filing an appeal u/s 100 CPC. Several grounds have been urged in this appeal memo apart from proposing few substantial questions of law to be considered as substantial questions of law.

Learned Counsel for the appellant is present and has submitted her arguments at length. Perused the records and judgments of the trial Court as well as the First Appellate Court.

The plaintiff is the absolute owner of land in Sy. No. 41/3A and this aspect has not been seriously disputed by the defendant. Plaintiffs brother has land to the south of land in Sy. No. 41/3A. The land held by his brother bears Sy. No. 41/3B. To the south of the land in Sy. No. 41/3B is the Malabad Gugwad Road. To the west of the land in Sy. No. 41/2 and 41/3A is the land of Kutub-Shab Mulla in R.S. No. 41. To the north of land in Sy. No. 41/2 of the defendant is a canal which is about 8 ft. in depth. To the east of land in Sy. No. 41 is the land of Kamu S. Kot.

The defendant has not seriously disputed the title of the plaintiff in respect of the land in Sy. No. 41/3A. What is averred by the defendant is that on the eastern side of land in Sy. No. 41/3A and 41/3B is a cart track and that is the only access to his land in Sy. No. 41/2. It is his averment that the entire land in erstwhile Sy. No. 41 belonged to the family of plaintiff and his brother and one Keshav Kulkarni. Since Keshav Kulkarni was also the cousin of the plaintiff and his brother, he was making use of the land in Sy. No. 41/3A and 41/3B as access to his land. As the defendant having purchased the land in Sy. No. 41/2, it is his case that there is no other access except the cart track running south north on the eastern edge of the land in Sy. Nos. 41/3B and 41/3A.

The First Appellate Court has placed'' reliance upon the report of the Commissioner and few admissions elicited from the mouth of PW 1. What is argued before this Court by the learned Counsel for the plaintiff-appellant is that, the defendant has not chosen to enter into witness box to substantiate his defence and therefore, an adverse inference will have to be drawn against the defendant.

This Court is unable to accept the said argument for the reason that, if the plaintiff has not discharged the initial burden cast upon him effectively, the question of shifting the onus on the defendant does not arise. In the present case, PW 1 has admitted that land in Sy. No. 41/2 belonged to his cousin Keshav Kulkarni and that the defendant has purchased the said land. PW 1 has admitted that the land in Sy. No. 41/3B has fallen to Hanumanth Kulkarni, who is his brother. He has admitted that the land in Sy. No. 41/3B is adjacent to Malabad Gugawad Road.

He has admitted that Kutubsab Mulla and Kamu S. Khot will reach their respective land from this Malabad Gugawad Road which runs east west on the southern side and the land in Sy. No. 41. He has further admitted that even Hanumanth Kulkarni also owns his land from this main road. He has denied the suggestion put to him that there is a cart road in existence on the eastern side of land in Sy. No. 41/3A and Sy. No. 41/3B which is an access to the land in Sy. No. 41/2.

Though he has denied the said suggestion, PW 1 has admitted that at the time when land in Sy. No. 41 was put into partition during the lifetime of his grandfather, land in Sy. No. 41/2 fell to the share of Keshav Kulkarni and Sy. No. 41/3 fell to his grandfather. He has admitted that the land of Sy. No. 41/2 being sold by Ramakrishna Keshav Kulkarni to the defendant. One important admission elicited from his mouth is in regard to the existence of a cart track, the width of which is about 6 molas as found in diary No. 663 and Sy. No. 41/3B in order to go to Sy. No. 41/3A. If there is a cart road in existence as an access to the land in Sy. No. 41/3A through 41/3B the corollary is that the same must continue to reach Sy. No. 41/2 held by the defendant.

On reassessing the entire evidence, the learned Judge of the First Appellate Court has taken this material admission of PW 1 into consideration and has assessed the Commissioner''s report and the sketch in the light of his oral evidence. The approach adopted by the First Appellate Court is proper and is based on proper reappreciation of evidence done on the touchstone of intrinsic probabilities. Taking into consideration the totality of the case, the learned Judge of the First Appellate Court has chosen to dismiss the suit of the plaintiff, since the plaintiff has made an attempt to block the access i.e., cart road. In the light of the defendant having not seriously disputed the title of land in Sy. No. 41/3A, dismissal of the suit will not be of much consequence. The dismissal of the suit is mainly on the ground that the plaintiff has suppressed the material fact of the existence of a cart road running South North on the eastern edge of land in Sy. No. 41/3B and 41/3A. If really there was no cart road in existence in Sy. No. 41/3B, plaintiffs brother would have also objected to the same.

Taking into consideration the totality of the circumstances, the First Appellate Court has adopted a right approach to the real state of affairs. By no stretch of imagination, the approach adopted by the First Appellate Court could be considered as either perverse or illegal. Hence, no interference is called for by this Court.

The questions of law proposed in the appeal filed before this Court are not substantial questions of law in essence u/s 100 of CPC. Even otherwise, no question of law arises for consideration by this Court. Hence, the appeal is liable to be dismissed as unfit for admission.

ORDER

Appeal is dismissed as unfit for admission by upholding the judgment of the First Appellate Court. There is no order as to costs.