C.S. Krishna Shastry vs C.N. Ravindranath

A.V. Chandrashekara, J.—Heard the learned, counsel for the appellant.

Concurrent findings are called in question before this Court under Section 100 of CPC.

Plaintiff is the appellant before this Court. Respondents are the defendants in a suit bearing O.S. No. 217/1999 which was pending on the file of the Court of Addl. Civil Judge (Jr. Dn.) & JMFC, Anekal.

Suit filed for the reliefs of declaration and permanent injunction in respect of the agricultural land bearing Sy. No. 226 measuring 2.05 acres of Bhadrapura Village, Kasaba Hobli, Anekal Taluk, has been dismissed vide considered judgment dated 22.02.2005. Against the said judgment and decree, an appeal was filed under Section 96 of CPC before the Court of Senior Civil Judge, Rural District, Bangalore, in R.A. No. 97/2005. Consequent upon the establishment of the Court Civil Judge (Sr. Dn.) and JMFC at Anekal, it was transferred and renumbered as R.A. No. 230/2006. The said appeal has also been dismissed after contest. Hence, the concurrent findings are called in question before this Court.

The main case of the plaintiff is that suit ''A'' schedule property in question was allotted at a partition in his favour and that he has been in lawful possession and enjoyment of the suit schedule property. It is further averred that schedule ''B'' property is a road measuring 25 feet in width linking the property of the plaintiff and defendants. Since the defendants tried to interfere with ''B'' schedule property, the plaintiff had to file the suit against the defendants.

Defendants'' case, as emanated from the written statement filed by them before the Trial Court, is that no road is in existence and that no road has been earmarked to be used by the plaintiff and the defendants and that ''B'' schedule property is the exclusive property of the first defendant. With these pleadings, the defendants had requested 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 the absolute owner in possession and enjoyment of the ''A'' schedule property?

Whether plaintiff proves that easement of necessity in the ''B'' schedule property?

Whether defendant proves that there is no ''B'' schedule property as alleged by the plaintiff?

What Order or decree?

Plaintiff himself has been examined and as PW1 and has got marked 11 exhibits apart from examining PW2. Two witnesses have been examined on behalf of the defendants apart from getting 15 exhibits got marked. After analyzing the evidence placed on record and hearing the arguments, the learned Addl. Civil Judge (Jr. Dn.) & JMFC, Anekal, has answered issue No. 1 as does not arise for discussion, issues 2 and 3 in the negative. Consequently, suit is dismissed.

Appeal filed under Section 96 of CPC is also dismissed after contest by framing the following points for consideration as found in page No. 10 at paragraph-11 of the judgment:

Whether the plaintiff/appellant has proved that there is an existence of 25 ft. road as described in the schedule to reach his property i.e., A schedule property from Anekal, Hosur road and except the B schedule property there is no other alternative road or access or pathway to the plaintiff to reach his property i.e., A schedule property?

Whether the Judgment and Decree dated 22.02.05 passed by the learned Addl. Civil Judge (Jr. Dn.) & JMFC, Anekal, in O.S. No. 217/99 is illegal, erroneous, against to the facts established and capricious and thereby liable to be set aside by way of interference of this court?

3 What order?

Both the points have been answered in the negative.

It is argued before this Court that both the Courts have adopted wrong approach to the real state of affairs and that they have not assessed the evidence on the touchstone of intrinsic probabilities. It is further argued that when the plaintiff has claimed the easement of necessity in respect of a road measuring 25 ft. which is also beneficial to the defendants and hence, the Court could not have dismissed the suit and the Appellate Court could not have dismissed the appeal.

It is argued that even though no application was filed for appointment of a Commissioner, nothing came in the way of the Court to appoint a Commissioner on its own in the light of the facts and circumstances of the case. Hence, he has requested the Court to admit the appeal and by formulating the substantial questions of law:

"a) Whether the courts below were justified in passing the impugned judgments and decrees produced under Annexures-A and B contrary to the materials available on record coupled with documents produced by the parties?

b) Whether the courts below were justified in accepting the case of the 1st Respondent though the evidence on record contradicts the defence taken by the 1st respondent?

c) Whether the courts below were justified in refusing the relief though the appellant/plaintiff has established his easementary rights over ''B'' schedule property?

d) Whether the courts below were justified in refusing to accept the sketch in Exs. D. 14 & 15 which clearly demonstrates the case put forwarded by the appellant/plaintiff?

e) Whether the courts below are justified in passing the impugned judgments and decrees without properly tackling the issues regarding the easementary rights of the appellant/plaintiff over the suit ''B'' schedule properties?

f) Whether the courts below were justified in misleading the evidence of the parties while rejecting the claim of the appellant by dismissing the suit filed by him?

g) Whether the courts below are justified in giving a finding to the effect that there are several roads available for the appellant''s ingress and egress of the suit ''A'' schedule property when there are many contradictory evidence available on record and when there is no ample of evidence to establish that the suit ''B'' schedule property is the only road available for ingress and egress of the appellant to the ''A'' schedule property?"

There is no dispute about the partition that took place between the plaintiff and the father of the first defendant. The same is evidenced through a registered partition deed. In the very registered partition deed, there is a specific mention about the existence of Ashwatha Katte to be jointly enjoyed by the plaintiff as well as the first defendant. As rightly pointed out in the Trial Court as well as in the First Appellate Court, if the parties had intended to leave 25 ft. width in ''B'' schedule property to be enjoyed by both the plaintiff and first defendant, there would have been a mention to that effect in the same partition deed.

There is a lot of force made in the observation made by the Trial Court and the First Appellate Court, since the evidence is assessed on the touch stone of intrinsic probabilities.

If really there was an easement of necessity, the plaintiff would have really sought for appointment of a Commissioner to elucidate the matter in dispute. Having not done so, it is high time for the plaintiff to turn round and say that Court should have appointed a Commissioner.

Taking into consideration the facts and circumstances of the case, the Trial Court as well as the First Appellate Court have properly assessed the oral and documentary in right perspective. Both the Courts have adopted right approach to the real state of affairs. No illegality or perversity is committed. There is no scope for interfering with the factual findings. Appeal is liable to be dismissed.

ORDER

Appeal is dismissed as unfit for admission.