Rajashekhar vs Hanamanthreddy

A.V. Chandrashekara, J.—First defendant of an original suit-bearing O.S. No. 353/2001 is before this Court challenging the judgment and decree passed in O.S. No. 353/2001 against him and the affirmation of the same in Regular Appeal bearing No. 104/2004. Respondent No. 1 is the plaintiff in the said suit and respondent No. 2 is the second defendant in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court.

Plaintiff chose to file a suit for the relief of mandatory injunction requesting the Court to direct defendants to remove the illegal construction of permanent road made over northern boundary of the suit schedule property and for compensation of Rs. 15,000/- as damages. The said suit was contested by the defendants and ultimately suit came to be decreed directing the defendants to remove the pucca road formed towards the northern portion of the suit property. The relief for awarding damages has been rejected vide considered judgment dated 01.06.2004. The said judgment and decree came to be challenged by filing an appeal u/s 96 in R.A. No. 104/2004 before the Court of II Addl. Civil Judge (Sr. Dn.), Dharwad. The said appeal has been dismissed by confirming the judgment passed by III Addl. Civil Judge (Jr. Dn.), Dharwad, on 09.04.2008. These concurrent findings are called in question.

Learned Counsel for the appellant has submitted his arguments in regard to admission. Perused the judgments of both the Courts.

Plaintiff is the owner of land bearing No. 72/1 measuring 1.0 acre which is situated in Navalur Village, Dharwad Taluk. The said suit property has been specifically described with reference to the boundaries in the schedule appended to the plaint. It is the case of the plaintiff that the defendants have illegally formed a pucca road measuring more than 12 ft. in width on the northern side of the suit schedule property and that such formation of the road is illegal and they have no right whatsoever to form such a road. The fact that defendants are the adjacent land owners is not in dispute. The evidence placed or, record before the trial Court would disclose the existence of a pathway on the northern side of the suit schedule property belonging to the plaintiff. The trial Court as well as the First Appellate Court have specifically held that there existed a pathway on the northern edge of the suit schedule property and it was not pucca road. It is in this regard, a direction has been given by way of a mandatory injunction to remove the said pucca road so formed by defendant Nos. 1 and 2 on the northern side of the road.

What exactly is the pathway is found in Chapter V of The Karnataka Revenue Survey Manual in Rule 5.05 at page No. 134 of Karnataka Revenue Survey Manual authored by Prof. V. Narayana Swamy, a book published by MJS Publications. Rule 5.05 (a) states that footpath is indicated by single dotted line and the width allowed in 1/4 of a chain or 2.5 meters (8 ft. and 3 inches). The width of 2.5 meters and the total length multiplied together will give the area for which Phut Kharab is to be given. Therefore, there cannot be any access on the northern side of the suit schedule property beyond 2.5 meters.

Learned Counsel for the appellant has vehemently argued that the appellant has a water purifier unit in his land and therefore, the pucca road so existing in the suit schedule property is absolutely required for taking his vehicles to and from the unit. This Court is unable to accept the said contention. Just because it is convenient for the appellant to ply his vehicles through the land of the plaintiff, there cannot exist a road beyond 8.3 ft. If a cart track were to be allowed in the said land it would be more than 20 ft.

Rule 5.05(b) defines Cart Track and the width of the cart track would be 6.25 meters which is equivalent to 20 ft. Though the plaintiff has specifically denied the existence of any access in his land, the evidence on record discloses that there existed a pathway and the said pathway, has had been used by the adjoining land owners and the defendants can also make use of the said pathway which is restricted to an extent of 8.3 ft. only.

Suffice to state that both the trial Court and the First Appellate Court have properly analysed the oral evidence and documentary evidence on the touchstone of intrinsic probabilities and the plaintiff has not chosen to file an appeal about the finding given in trial Court that there exists a pathway.

In this view, of the matter, there are no good grounds to interfere with the factual finding given by the trial Court about the existence of pathway. The width of which would be 8.3 ft. and in regard to the use of the same by the land owners adjoining the suit schedule property, the appellant cannot have any grievance in this regard. He is entitled to use as an access on the northern edge of the suit schedule property to an extent of 8.3 ft. in width only and not beyond that. Both the Courts have adopted right approach to the real state of affairs. The First Appellate Court, being the final Court of facts has clearly reassessed the evidence, more particularly, keeping in mind the report of the Commissioner appointed by the Court.

In this view of the matter, the oral and documentary evidence have been assessed in the backdrop of the report of the Commissioner also. The questions of law proposed in this appeal are not substantial questions of law in essence u/s 100 CPC. Even otherwise, no substantial question of law arises in the present case and the appeal is to be dismissed as unfit for admission. Hence, the appeal is liable to be dismissed as unfit for admission.

ORDER

Appeal is dismissed as unfit for admission by upholding the judgments of the trial Court and the First Appellate Court. No order as to costs.

In view of the disposal of the appeal on admission, all pending applications do not survive for consideration.

It is made clear that the mandatory injunction so granted by the Court will be restricted to the extent of not more than 8.3 ft. Consequently, the defendants are liable to remove the road beyond the width of 8.3 ft.