Lakshmamma and Others vs Gangappa and Others

K.N. Phaneendra, J.—This regular second appeal is preferred challenging the concurrent findings recorded by the Principal Civil Judge & JMFC, Gauribidanur, in O.S. No. 9/2007, vide judgment dated 22.11.2011 and the Principal Senior Civil Judge & CJM, Chickballapur, in R.A. No. 7/2012, vide judgment dated 22.7.2014.

For the purpose of convenience and easy understanding and to avoid confusions, ranks of the parties are retained as per their rankings before the trial Court.

The plaintiffs (respondents herein) have filed a suit against the defendants (appellants herein) for the relief of declaration that they have acquired prescriptive right of easement of way over the suit property and for the relief of permanent injunction retraining defendant, his men, legal heirs, servants or anybody claiming through him from interfering with the use and enjoyment of the pathway which is running on the portion of suit schedule property i.e. survey No. 62/1, belonging to the defendants. It is the contention of the plaintiffs that the first plaintiff is having agricultural land in survey No. 60 measuring 2 acres 34 guntas, survey No. 61 measuring 1 acre 8 guntas and they also have residential/farm house in Nushkunte village, Gouribidanur Taluk. The second plaintiff is also having agricultural land in survey No. 62/2, measuring 1 acre 1 gunta, in survey No. 73/1 measuring 33 1/2 guntas and also a residential/farm house in Nushkunte village. To the east of their properties, at a distance of 180 fts., there is a public road formed by P.W. D. running from Gouribidanur to Myalya and other places. To reach the said road, the plaintiffs are having a path way of 15 ft. width which is passing through north-eastern extreme portion of land of defendant in survey No. 62/1 of Konapura village. The defendant is claiming his right in survey No. 62/1 of Konapura village. The said pathway passes through the defendants'' property which connects the land in survey No. 62/2 as well as main road between Gauribidanur and Myalya. The plaintiffs have been making use of said pathway since more than 50 years for the ingress and aggress of their movement and transportation of men and materials to reach the main road. It is also contended that at the request of plaintiffs, the Local Panchayath has developed the same as metallic road. The defendants claiming right over survey No. 62/1 of Konapura village, started interfering with the plaintiffs'' ingress and egress though the said pathway and therefore, it was forced the said plaintiffs to file a suit before the trial Court. It is also admitted that the defendants have also filed a suit in O.S. No. 191/2004 and on the basis of the said suit, they attempted to block the road by putting some thorn plants on the road. In fact, the plaintiffs have removed those plants and prevented the defendants from further blocking the road etc. Therefore, they claimed relief as noted above before the trial court. Defendants appeared through their counsel and filed a written statement. It is their specific contention that the said pathway is available in survey No. 62/2, belonging to the plaintiffs, it is further contended that the plaintiffs are making arrangements to encroach upon the property in survey No. 62/1 under the guise of the pathway. After the death of defendant, defendant Nos. 1(a) to (c) have been brought on record and they also contested the suit. It is contended that in O.S. No. 191/2004, the plaintiffs have admitted that the defendant is the owner of property i.e. survey No. 62/1, measuring 36 guntas. It is further contended that on 15.1.1995 there was a division among the members of family of the plaintiffs under a registered partition deed and in the registered partition deed, there was an averment that some space was left out in their property for formation of the road. Therefore, the defence taken by the defendants is that they claim that there is no road in their land in survey No. 62/1 and on the other hand, they submitted that the plaintiffs have got a separate road through their land to reach Myalya-Bychapura village.

On the basis of the above rival contentions, the trial Court has framed the following issues:

"1. Whether the plaintiffs prove the existence of suit pathway/road as on the date of suit and they are making use of the same for their ingress and egress for over 50 years?

Whether the plaintiffs prove the alleged interference caused by the defendants?

Whether the defendant proves that the plaintiffs are trying to form a new road on his property?

Whether the plaintiffs are entitled to the relief of declaration?

Whether the plaintiffs are entitled to the relief of injunction?

What order or decree?"

Plaintiffs in order to prove their case, examined as P.Ws. 1 to 3 and Exs. P1 to P20 were marked. Defendant No. 1(b) examined himself as D.W. 1 and also examined a witness by name Ramachandra as D.W. 2 and Exs. D1 to D16 were marked. The trial Court after going through the entire oral and documentary evidence on record has come to the conclusion that the PWD has formulated a road between Bychapura and Myala at a distance of 180 ft. from landed properties of plaintiffs and defendants. There is a pathway of 15ft. which passes through survey No. 62/2 and a portion in 62/1 of Konapura village and this 15ft. pathway connects the lands of survey Nos. 62/1, 62/2 and the village nushkunte to the main road i.e. Bychapur-Myalya road and also the fact that plaintiffs and others have been using above said road without any interruption for more than 15 years. The defendant who is claiming right over survey No. 62/1 of Konapura village have made an attempt to block the road but it was specifically refuted by the plaintiffs. The trial Court has relied on the oral and documentary evidence produced by respective parties. Though the trial Court on the request of plaintiffs ordered for appointment of the Commissioner, but the said order was challenged by the defendants and they took up the matter before the High Court and the said order was quashed by the High Court and therefore, the Court could not appoint the Commissioner. The trial Court has considered this aspect and drew an inference that because the road passes through survey No. 62/1 also, the defendants did not allow the Court to appoint the Commissioner. Of course, the trial Court could not have been drawn inference in such a manner, nevertheless as could be seen from the judgment of the trial court, it is not only stated so with regard to the appointment of Commissioner, but it has drawn its interference on the basis of oral and documentary evidence produced by the parties. It is there in the judgment of the trial Court that the Taluka Surveyor as per Ex. P18 has much prior to the filing of the suit has issued a sketch which shows that the pathway runs through survey Nos. 62/1 and 62/2. The trial Court has also made an observation that defendant No. 1(b) examined before the trial court has also admitted that there is a pathway in survey number of the plaintiffs and also a portion of the land in survey No. 62/1, but his contention is that the said road is not available to the plaintiffs, but for the defendants only. Ex. D12 and 15-photographs are also relied upon which are admitted by defendant No. 1 who has produced two colour photographs pertaining to the disputed pathway road and the Court observed from these photographs produced by the defendants regarding existence pathway in the disputed landed property. Further added to that, the trial Court discussed with regard to the suit filed by the defendants against the plaintiffs in O.S. No. 191/2004 and in that, it is observed that there is no any road in the property of the defendants, the entire extent of 36 guntas in survey No. 62/1 is made use of by the defendants for agricultural operations. The Court has observed that, the said case is only a case of injunction and the Court has not gone through with regard to the existence of any road or other thing but it only concentrated with regard to ownership and interference by the defendants in the said case. Therefore, the Court has observed that the present suit is a comprehensive suit, the court can go in detail with regard to existence of road or not which was not a subject matter in the earlier suit. Therefore, considering the entire oral and documentary evidence, the Court has come to the conclusion that the said pathway runs through survey No. 62/1 and also survey No. 62/2 belonging to the plaintiffs and defendants respectively and therefore, the Court has come to the conclusion that the metallic road was formed by the Grama Panchayath and it was well known to the plaintiffs and defendants. Therefore, the Court has declared that the plaintiffs have acquired prescriptive right over the said portion of land and granted injunction to the defendants. Being aggrieved, the defendant approached the first appellate Court in R.A. No. 7/2012.

The first appellate Court also formulated two points for consideration in the following manner:

"1. Whether the trial Court has properly appreciated the oral and documentary evidence?

Whether the judgment and decree of the trial Court calls for interference?"

Answering these points in the negative, the Court has observed with regard to the existence Bychapura-Myalya road and also reassessed the evidence of plaintiffs and defendants and also the documents produced before the Court and observed that defendant No. 1(b) has admitted passing of the pathway road in their survey No. 62/1. Ex. P15 is also considered which is the certified copy of the declaration issued by the Executive Officer, Taluka Panchayath, stating that a sum of Rs. 9,963/- was paid to Y.G. Narasimhan, Junior Engineer, towards development of said pathway leading to Bychapura-Myalya road and it also discussed about the photographs produced by the plaintiffs and defendants and relied upon Ex. P18 which is the certified copy of Mahazar dated 14.7.2005 which was much prior to the suit filed by the plaintiffs, drawn by Taluka Surveyor which depicts existence of road in survey Nos. 62/1 and 62/2. On reappreciating the oral and documentary evidence, the appellate Court also with all definiteness has come to the conclusion with regard to existence of the pathway running to the land of the plaintiffs and defendants. Therefore, the appellate Court did not interfere with the judgment of the trial Court and consequently dismissed the appeal filed by the defendants.

Learned Counsel for the appellant before this Court strenuously contended that the second suit filed by the plaintiffs is hit by the principles of res-judicata as the defendants have filed a suit in O.S. No. 191/2004 and there was an injunction order running against them with reference to suit property in survey No. 62/1. He further contends that the trial Court based its finding on the ground that the plaintiffs have approached the High Court on the order passed by the trial Court under Order 26 Rule 9 of CPC. Therefore, the trial Court has taken the view that the defendants are making obstructions to the Court in appointing the Commissioner, because of the reason that the pathway passes through their survey number. Therefore, the approach of the trial Court is virtually to take vengeance against the defendants. Therefore, such exercise made by the trial Court is not proper which requires to be reconsidered by this Court. Further, it is contended that the trial Court and the first appellate Court have not at all properly appreciated the oral and documentary evidence on record. Hence, with all the above reasons, he prays for admitting the appeal and to frame substantial question of law.

On perusal of the entire materials placed before this Court, the issues framed by the trial Court as well as the points for consideration framed by the first appellate Court, it does not disclose that there was any point of law raised by the defendants before the trial Court or the first appellate Court including the issue of res judicata. There is no question of law involved in this case. The only question raised is the trial Court and first appellate Court have not properly appreciated the oral and documentary evidence on record.

It is a well recognised principle that while exercising power under Section 100 of CPC, the second appellate Court has to see whether the appreciation of evidence by the trial Court is proper and correct but it does not mean to say that second appellate court has to re-appreciate the evidence on record. The Court has to see only to the extent that whether the trial Court without there being any evidence imagined something and granted relief in favour of the parties, or whether the trial Court though there is sufficient evidence before the Court, ignored the said evidence for the purpose of granting any relief in favour of the parties. Learned Counsel has not brought to my notice that without any evidence the trial Court has granted the relief or there is evidence which has not at all considered by the trial Court or first appellate Court. As I have narrated above, both the trial court and first appellate court have in detail discussed the oral and documentary evidence on record and there is an admission on the part of the defendants with regard to existence of pathway in both survey numbers 62/1 and 62/2. Therefore, looking to the judgment of both the Courts, the Courts have drawn inference on the basis of the facts on record. Appreciation of factual aspects in a proper manner, in my opinion, cannot be interfered with in the absence of any substantial question of law being raised. Even in so many decisions of the Apex Court, it is also held that even mere question of law is not sufficient but it should be a substantial question of law that should be raised before the second appellate Court in order to entertain the second appeal. It is further to be noted that even an erroneous finding given by the trial Court and the first appellate Court while appreciating the facts of the case, but that itself is not sufficient to come to a conclusion that there lies a substantial question of law to be decided by the second appellate Court. Looking from any angle, I am of the opinion that there is no substantial question of law involved for consideration and there is no merit to admit the appeal.

Hence, the appeal deserves to be dismissed at the stage of admission itself and it is accordingly dismissed at the admission stage itself.