Fakkirappa vs Tippanna

B. Veerappa, J.—This is an unsuccessful plaintiffs Regular Second Appeal against the judgment and decree dated 5.8.2011 made in R.A. No. 169/2009 on the file of the District Judge (Fast Track Court), Haven, confirming the judgment and decree dated 17.3.2008 made in O.S. No. 43/2005 on the file of the Addl. Civil Judge (Jr.Dn) & JMFC, Haven, dismissing the suit for declaration.

It is the plaintiffs case that, the plaintiffs father Nagappa and defendant''s grandfather Hanumanthappa are the brothers and they partitioned their family properties and in the said partition ''A'' schedule property was allotted to the share of the plaintiffs father and ''B''-schedule property was allotted to the share of defendant''s grandfather. The claim of plaintiff is that towards the southern boundary of defendant''s property, there is a 4 feet width East-West passage from the plaintiffs property to reach the eastern government road, which is shown in letters ''YZ'' in the sketch annexed to the plaint and the plaintiff is using the said passage for the last 40 years and also claims that there is no other alternative road to the plaintiffs ingress and egress to his property, etc. and the defendant is obstructing the use of the suit passage. Therefore, he filed the suit.

The defendant filed written statement and denied the entire plaint averments and disputed the annexed sketch and specifically made out a case that there is no road as claimed by the plaintiff shown in letters "YZ" in the sketch annexed to the plaint. It is the specific case of the defendant that, there is Government road towards the west immediately after the plaint ''A'' schedule property of the plaintiff The plaintiff is using the said road for his ingress and egress to his property. The defendant further stated that he has already sold ''B''-schedule property to one Channaveeragouda Thirukanagoudar and he was in actual possession and enjoyment of the suit property and the said Channaveeragouda Thirukanagoudar was a necessary party to the suit. The plaintiff has deliberately not made the said Channaveeragouda Thirukanagoudar as a party to the suit. The defendant further claimed that there is a road in the plaintiffs property towards northern to reach plaint ''B''-schedule property. It is also stated that the plaintiff and defendant are using the road existed towards the west of plaintiffs property for their ingress and egress. The defendant categorically denied the existence of road towards the eastern side of his property and he never used the passage claimed in the suit. Therefore, he sought for dismissal of the suit.

Based on the pleadings the trial court framed the following issues:

"1. Whether plaintiff proves that there exists a suit passage as shown as ''YZ'' in the plaint annexed sketch?

Whether the plaintiff further proves that the suit passage is only passage available to him?

Whether the plaintiff is entitled to relief sought?

What order or decree?"

In support of his pleadings, the plaintiff examined himself as P.W. 1 and one witness as P.W. 2 and got marked documents as Ex. P.1 to P.3. The defendant examined himself as D.W. 1 and four witnesses as D.W. 2 to D.W. 5 and got marked document as Ex. P.1 in support of his case.

The trial court after considering the entire material on record, has recorded a finding that the plaintiff has proved that there exists a suit passage shown as ''YZ'' in the plaint sketch and failed to prove that the suit passage is the only passage available to him and the plaintiff is not entitled to relief sought for. Accordingly, the suit came to be dismissed.

Against the said judgment and decree, the plaintiff filed R.A. No. 169/2009 before the District Judge (Fast Track Court) at Haven, who after hearing both parties by his impugned judgment and decree dated 5.8.2011 dismissed the appeal and confirmed the judgment and decree of the trial court.

Against the concurrent findings of facts of the courts below, the present regular second appeal is filed.

I have heard the learned Counsel for the appellant.

Sri. Laxman T. Mantagani, learned Counsel for appellant has strenuously contended that both the courts below failed to notice that the case of the appellant is that there exists 4 feet width East-West passage on the southern boundary of defendant''s property to reach the Government road on the eastern side, shown as ''YZ'' in the plaint sketch. D.W. 1 has specifically admitted the there is passage towards the south of his property and the appellant is using the same. Therefore, the judgment and decree of the courts below is erroneous for non-consideration of the material facts and evidence on record. Therefore, he sought to set aside the judgment and decree of the courts below.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the appellant and perused the entire material on record.

It is the specific case of the plaintiff that the plaintiff and defendant are relatives and there is existence of 4 feet width East-West passage from the appellant''s property to reach the eastern road which is more fully described and marked as ''YZ'' in the plaint sketch and he is using the said road for more than 40 years. It is the specific case of the defendant that the plaintiff has suppressed the fact that there is government road towards the west of plaintiffs ''A'' schedule property and the plaintiff is using the said government road for ingress and egress to his property and there is no road existing as claimed by the plaintiff shown as ''YZ'' in the plaint sketch and the defendant has alienated his ''B'' schedule property to one Channaveeragouda Tirukanagoudar and he is in actual possession and enjoyment of the said property. The plaintiff has not impleaded the said Channaveeragouda Tirukanagoudar who is the owner of B-Schedule property and therefore, the suit is not maintainable.

Based on the pleadings and evidence the trial court though held that the defendant has admitted the existence of passage towards south of his property and held that the definite case of the plaintiff is that, there is no alternative passage available to him within the suit property but the material clearly indicates that there exists road towards western side of his property. The existence of road towards West of his property falsifies his claim. In fact, alternative way negates the easement of necessity. The plaintiff nowhere made out a case regarding existence of road towards western side of his property. It is also not the case of plaintiff that the passage available on the western side of the property is inconvenient and he cannot use it. The defendant categorically denied the existence of government road on the eastern side of his property and admittedly the plaintiff claimed a right of way in this suit property. It is pertinent to note that he has not shown the flow of way from his property to his house property. The plaintiff should have shown the said direction of passage to substantiate his claim. The plaintiff has also not produced photographs to show the existence of passage and also he has not applied for the issuance of commission to ascertain the suit way claimed in the suit. When the defendant specifically denied the existence of suit way claimed by the plaintiff, the plaintiff should have obtained permission to visit the suit property to demonstrate existence of suit way as claimed by him. When the plaintiff failed to make any efforts to show the existence of road as claimed by him, adverse inference has to be drawn against him and admittedly when the owner of ''B'' schedule property, viz., Channaveeragouda Tirukanagoudar is not impleaded as party to the suit. Therefore, the trial court dismissed the suit.

On re-appreciation of the entire material on record, the lower appellate court recorded a finding that, both plaintiff who is examined as P.W. 1 and his witness P.W. 2 have specifically admitted that, towards the West of plaintiffs property there is government tar road measuring 35 feet in width. Further the plaintiff in his objection to I.A. 4 filed in suit has specifically admitted that there is tar road on the western side of his property and the tar was made to the said road recently and further claims that it is not concerned to him. At this juncture, it is to be noted that the plaintiff has not at all revealed the existence of the said road abutting to his property and filed the suit as if he has no other alternative way to reach his property as shown in the suit sketch. Further, the plaintiff has not at all disclosed the western boundary of his property which shows malafide intention of the plaintiff it is also an admitted fact that the plaintiff and defendant hail from the same family and their ancestors divided the properties among themselves. It is also admitted fact that, the portion marked ''YZ'' is the part and parcel of the property bearing No. 162 belongs to the defendant and there is no agreement between the parties during partition to use the suit passage by the plaintiff or his ancestors. So the plaintiff cannot claim any right over the said portion of the property when he has got a clear access to his property from the public road. The lower appellate court has also observed that the B-schedule property was sold to Channaveeragouda Tirukanagoudar under a registered sale deed dated 6.6.1994 and inspite of the said specific contention taken by the defendant in the written statement plaintiff has not impleaded the said Channaveeragouda Tirukanagoudar who is the actual owner in possession of the property in dispute. Therefore, the plaintiff is not entitled to any relief against the defendant. Accordingly, the lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court.

The substance of entire case of plaintiff is that there is a 4 feet width passage running East-West shown as ''YZ'' in the plaint sketch and it is not in dispute the suit ''B'' property in which plaintiff is claiming passage belongs to the defendant and there is no recital at the time of partition as to whether the passage claimed by plaintiff existing in ''B'' schedule property can be used by both parties and it is not the case of the plaintiff that he has no other road except the disputed passage. The plaintiff who is examined as P.W. 1 and his witness P.W. 2 have categorically admitted in the cross examination that, towards the west of plaintiffs property there is a government tar road measuring 35 feet width and the said fact is also admitted by filing objection to I.A. 4 that there is tar road on the western side of his property. The said material fact has not been disclosed in the plaint sketch annexed to the plaint. Therefore, the plaintiff has not come to the court with clean hands and he has suppressed the material fact of existence of government road towards west of his property and he has no right to claim easementary right in ''B'' schedule property which belong to defendant, and the defendant had already alienated the said property in favour of one Channaveeragouda Tirukanagoudar on 6.6.1994 and the suit is filed on 3.3.2005 without making the said Channaveeragouda Tirukanagoudar as party to the suit as he was the owner in possession of the plaint ''B'' schedule property and not the defendant. Therefore, the plaintiff cannot claim any relief against the present defendant, in as much as, the suit is bad for non-joinder of necessary party.

Both the courts below have concurrently held that the plaintiff has failed to prove that he is entitled to any declaration of right of way on suit passage and injunction against the defendant, which is based on cogent legal evidence on record. Such a finding of fact cannot be interfered with by this Court in exercise of power under Section 100 of Code of Civil Procedure. No substantial question of law arise for consideration in this appeal.

Accordingly, the regular second appeal is dismissed at the stage of admission itself.