Ravindra Bhandary vs Surendra N. Gadiyar and Others

Aravind Kumar, J.—Heard Sri. V.R. Prasanna, learned counsel appearing for petitioner and Sri. K.N. Mahabaleshwara Rao, learned counsel appearing for respondent No. 1. Petition stands dismissed against respondent No. 2. By consent of learned advocates petition is taken up for final hearing.

Short point involved in this case is whether order of rejection of application filed by plaintiff for appointment of court commissioner to visit suit schedule and to ascertain as to whether there exists road or not in O.S. No. 123/2012 is to be sustained or set aside.

Perusal of the records would indicate that plaintiff in O.S. 123/2012 has sought for declaration that he and other occupants of plaint `A'' schedule property have a right of road of 15 feet in width passing through the plaint `B'' and `C'' schedule properties, commencing from Sri. Durga Parameshwari Temple road to the plaint `A'' schedule property and vice versa for use of men, vehicles and cattles, course as depicted in the sketch annexed to the plaint and marked as A-A-A and for consequential relief of perpetual injunction against defendants.

It is contended by learned counsel appearing for petitioner that schedule `C'' property is held by 1st defendant and is a vacant land and mother of the plaintiff had leasehold rights over schedule `C'' property as also schedule `A'' and `B'' property having obtained the lease from 1st defendant. It is contended Land Tribunal by its order dated 18.08.1980 granted entire extent of land comprised in Sy. No. 227/1E measuring 4.58 acres which was challenged by 1st defendant and matter was remitted back to the Land Tribunal and Land Tribunal was directed to survey, measure and prepare a sketch relating to said survey number and accordingly surveyor demarcated 3 acres of land in Sy. No. 227/1E separately and rest of the property measuring 1.58 acres separately and on the basis of said survey report Tribunal passed fresh order on 28.05.1992, whereunder the right of road was reserved in favour of plaintiff in Schedule `C'' property. It is further contended that plaintiff and other occupants of Schedule `A'' property have been using the said road as of right even prior to the first order of the Tribunal and such right of road is not only an easement by grant but also easement by necessity. Plaintiff further contended that schedule `A'' property is landlocked and is surrounded by properties of others and have no other approach road than the said road. Hence, to ascertain this factual aspect appointment of commissioner was sought for and submits that it has been erroneously rejected.

Per contra Sri. K.N. Mahabaleswara Rao, learned counsel appearing for respondent No. 1 would support the impugned order and contends that plaintiff having sought for declaration of right to a road measuring 15 feet in width passing through schedule `B'' and `C'' properties has to prove his right to said road or pathway and what is admitted by 1st respondent relates to an alternate pathway and not the one which is now claimed by the plaintiff. To support his contention he draws the attention of the court to Annexure-R-1-Map annexed to statement of objections to the writ petition.

Sri. V.R. Prasanna, learned counsel appearing for petitioner has also produced copy of sketch produced before trial court which came to be marked as Exhibit-P-7. As could be seen from the pleadings, as well as sketch or Map relied upon by respective parties which is at Exhibit-P-7 and Annexure-R-1 it would indicate that dispute relates to a road, which plaintiff claims to be in existence having width of about 15 feet and same is indicated in the plaint sketch as A-A-A and also in the sketch marked as Exhibit - P-7 and same is seriously disputed by 1st defendant. Thus, on comparing Exhibit P-7 with Annexure-R-1 it would indicate a road has been depicted running from East to West and thereafterwards North to South. It is stated by Sri. K.N. Mahabaleswara Rao, learned counsel appearing for respondent No. 1 that road which is claimed by plaintiff is disputed road and same is indicated in orange colour and it runs North to South on Eastern side as reflected in Annexure-R-1 has been recently formed by plaintiff with use and force. Thus it would be necessary to ascertain as to whether this disputed road which is claimed by plaintiff is a road which is in existence from time immemorial or it has been recently formed from out of pathway since documents produced by both parties would not throw direct light on the same. Hence, it would be just and necessary to appoint surveyor of Karkala Taluk to inspect the suit schedule property and report to the trial court after conducting local inspection. Hence, impugned order rejecting the application cannot be sustained. It is also made clear that prayer sought by the petitioner in toto cannot be granted and partially the prayer sought by petitioner deserves to be granted for reasons aforestated.

Hence, the following:

Writ petition is hereby allowed in part.

Order dated 22.08.2015 passed on I.A. 16 in O.S. 123/2012, Annexure-A is hereby quashed.

I.A. No. 16 filed by plaintiff, Annexure-G is hereby allowed in part and jurisdictional surveyor (Karkala Sub-Division) is hereby appointed to carry out local investigation and he shall carry out the following work only;

(i) Court Commissioner shall inspect the property bearing Sy. No. 227 of Belman Village, Karkala Taluk and report as to whether there is any existence of pathway or road running from North to South on the Eastern side of Sy. No. 227/23 and whether there is a road/pathway connecting road running from East to West on the Northern side of Sy. No. 227/23 (indicated in Green in Annexure-R-1) and he shall further ascertain as to whether there is any road/pathway or link road running North to South on Western side of Sy. No. 227/23 as indicated in Green in Annexure-R-1 and trial court along with commission warrant shall forward Annexure-R-1 and Exhibit-P-7 to the Court Commissioner.

(ii) Court Commissioner after issuing notices to parties and without receiving any further memo of instructions from parties or advocates shall execute the warrant as indicated hereinabove and he shall also ascertain the approximate date of formation of road or period in which it has been formed or from what period it may be in existence.

Ordered accordingly.