Sri. K.P. Ramachandra Reddy vs Smt. Kuriyallamma, Since Dead by His Legal Representatives (Smt. Sarojamma)

B. Manohar

Appellant who is the plaintiff before the court below has filed this second appeal, being aggrieved by the judgment and degree dated 11-7-2006 made in R.A.No. 18/2003 passed by the Civil Judge (Sr.Dn.), Challakere confirming the judgment and decree dated 3-2-2003 made in O.S.No. 192/1999 passed by the Additional Civil Judge (Jr.Dn.). Challakere, wherein the suit filed by the plaintiff was dismissed.

The plaintiff filed a suit seeking for declaration declaring that he has got easementary right over the ''AB'' Cart Track in the suit schedule property by way of easement of prescription and necessity to reach his land bearing Sy.No.60/1 situated at Ramajogihalli village. Challakere Taluk and also to restrain the defendant from interfering with his enjoyment of ''AB'' Cart Track.

In the plaint, the plaintiff has contended that Sy.No.60/1 measuring 10 acres 11 guntas of land belonged to the plaintiff. It is an ancestral property and his father died about 10 years back. The defendant is the owner of Sy.No.44/1 measuring 16 acres 05 guntas of land situated towards eastern side of Ramajogihalli and adjacent to the property of the plaintiff towards East the land of the plaintiff situates. In the land belonging to the defendants, the road from Kurudihalli to Ranajogihalli situates, which passes north to south. To enter the land of the plaintiff, he has to go from ''AB'' cart track from Ramajogihalli to Kurudihalli road. He has been using the said road from time immemorial, which passes West to East through the land of the defendants. The plaintiff and others are using the said ''AB'' cart track from the time immemorial The plaintiff has been using the said cart track as easement of necessity to reach his land. Towards East, West and South, there is a 5 feet height katte to the land of the plaintiff and he cannot enter his land. Except towards south, there is no entry to the land of the plaintiff. It was further averred that about 6 months back, the defendant asked the plaintiff to sell his land to him. However, the plaintiff refused for the same. In view of that, the defendant started interfering with the enjoyment of the suit schedule property for the last 15 days and not allowing to pass-through ''AB'' cart track. However, the defendant has given permission to Pallaraiah and Obaiah to go to their lands through the land belonging to him. In view of that, the plaintiff has tiled a suit for the above reliefs.

In pursuance to the notice issued by the court below, the defendant entered appearance and filed written statement denying the averments made in the plaint. However, she admitted that she is the owner of the land bearing Sy.No.44/1 and the Ramajogihaili - Kurudihalli Cart track is located in her land. She has contended that Ramajogihalli-Kurudinalli cart track passes North - South through her land and the land of Kote Viswanatha Reddy through which the plaintiff was going to his land likewise the defendant and Viswanatha were going to their lands through the said road. There is no existence of AB'' Cart track as shown in the rough sketch produced by the plaintiff except Ramajogihaili-Kurudihalli road. It was further alleged that at no point of time, the plaintiff entered his land through the property belonging to the defendant nor existence alleged ''AB'' cart trade as shown in the sketch. The said road passes very close to the property of the plaintiff. The plaintiff has been using the said road to enter his property. The rough sketch produced by the plaintiff is not correct. In the village map, no such mentioning of the existence of cart track or pathway as alleged by the plaintiff. She further alleges that there is dispute between the plaintiff and defendant and the defendant has filed O.S.No.210/1994. In view of that the plaintiff has filed a false suit in order to trouble the defendant and there is no cause of action to file the suit and sought for dismissal of the suit.

On the basis of the pleadings of the parties, the Trial Court framed the following issues for its consideration:

Whether the plaintiff proves that there is existence of deviating cart track ''AB'' as per rough sketch from the road passing through land of the defendant?

Whether the plaintiff proves that, the plaintiff and his ancestors are enjoying the ''AB'' cart track from the time immemorial as casement of necessary?

Whether the plaintiff proves the alleged interference and obstructing to enjoy ''AB'' cart track by the defendant?

For what relief plaintiff is entitle for?

What Order or Decree?

The plaintiff in order to prove his case examined himself as P.W. 1 and also examined two more witnesses as P.W.2 and P.W.3 and got marked the documents as Ex.P1 to Ex.P.12. On the other hand, the Power of Attorney Holder of the defendant was examined as D.W. 1 and also examined one more witness as D.W.2 and marked the documents Ex.D1 to Ex.D3.

The Trial Court after considering the arguments addressed by the parties and examining the oral and documentary evidence let in by the parties, held issue Nos. 1 to 3 in the negative and issue No.4 - the plaintiff is not entitled for any relief. Accordingly, by its judgment and decree dated 3-2-2003 dismissed the suit holding that the plaintiff has failed to prove his right over the ''AB'' cart track and there is no existence of ''AB'' cart track in the property of the defendant.

Being aggrieved by the same, the plaintiff preferred R.A.No. 18/2003 on the file of the Civil Judge (Sr.Dn.), Challakere contending that the judgment and decree passed by the court below is contrary to law and the Trial Court has failed to appreciate the oral and documentary evidence let in by the parties. Further contended that the Trial Court has not applied its mind to the admission made by the defendant in paragraphs 4 and 5 of the written statement and also not taken into consideration the Commissioner Report and the finding arrived at by the court below on issue No.4 is erroneous in law and sought for setting aside the judgment and decree passed by the court below.

The Lower Appellate Court after considering the arguments addressed by the parties framed the following points for its consideration:

(i) Whether appellant has prove existence of AB cart track?

(ii) Whether appellant has proves that a AB Cart track has been used for time immemorial?

(iii) Whether appellant has prove that AB Cart track is only the cart track to reach his land in Sy.No. 66/1?

(iv) Whether Judgment and decree of the learned trial Judge calls for interference?

(v) What order?

The Lower Appellate Court after considering the arguments advanced by the learned counsel for the parties and on reappreciating the oral and documentary evidence let in by the parties held points 1 to 4 in the negative and consequently, by its judgment and decree dated 11-7-2006 dismissed the appeal confirming the judgment and decree made in O.S.No. 192/1999. Being aggrieved by the same, the plaintiff has preferred this second appeal.

Sri Balakrishna Shastry, learned counsel appearing for the appellant inter alia contended that the judgment and decree passed by the courts below are opposed to law, facts of the case and evidence on record. The appreciation of evidence adduced by the plaintiff by the court below is erroneous in law. The court below misunderstood and misread the case pleaded by the plaintiff. Further the predecessors of plaintiffs and defendant are the members of the same family. Originally Kuri Hanumanthappa had four sons and defendant is the daughter of Kurithippaiah son of Kuri Hanumanthappa. In the family partition Sy.No.44/1 allotted to the share of Kuri Thippaiah. The plaintiff is the grand son of Kuri Hanumanthappa. Sy.No.60/1 was allotted to his father. He has no other way to approach his land in Sy.No.60/1 except the cart track passes through Sy.No.44/1. It is the specific case of the plaintiff that the cart track runs between Kurudihalli to Ramajogihalli village and to enter the land of the plaintiff, he has to pass-through the ''AB'' cart track and except that cart track, there is no other road. The reasoning of the court below to dismiss the suit that the plaintiff can enter his land/property through Ramajogihalli - Kurudihalli road and the plaintiff has tailed to prove the existence of ''AB'' cart track is erroneous in law. He has further contended that on all the three sides, i.e. East, West and South there is a 5 feet height katte and he cannot enter his property. Hence, the entire approach made by both the courts is contrary to law. Further, the defendant permitted Pallaraiah and Obaiah to pass-through her land. This itself shows that there is existence of cart track and sought for setting aside the judgment and decree passed by the courts below.

On the other hand, Sri. B.M. Siddappa, learned counsel appearing for the respondent argued in support of the judgment and decree passed by the courts below and contended that both the courts after appreciating the oral and documentary evidence let in by the parties came to the conclusion that there is no existence of ''AB'' cart track as alleged by the appellant and the appellant has got another alternative way to enter his properly through south end of Ramajogihalli and Kurudihalli road. Further, in the village sketch, the existence cart track has not been mentioned and no document has been produced to show that the existence of the cart track. The finding recorded by the court below is purely a question of fact and both the courts below have concurrently held that the plaintiff has failed to establish the case. The appellant has not made out any case to interfere with the well considered judgment and decree passed by the courts below and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel appearing for the parties and perused the judgment and decree passed by the courts below.

Having heard the learned counsel for the parties, the only point that arise for whether the appellant has not made out a case to interfere with the judgment and decree passed by both the courts below?

It is the case of the appellant: that he is the owner of 10.11 guntas of land in Sy.No.60/1 whereas the defendant is the owner of 16 acres 05 guntas of land in Sy.No.44/1 which is adjacent to his property. Further. Kurudihalli-Ramajoginalli road passes through the property of the respondent as well as the property of Kote Vishwanath Reddy. From the said road to enter the property of the appellant, there is ''AB'' cart track as shown in the rough sketch and except that cart track, there is no other entry to the property of the appellant. Further, from the time immemorial they are using the said cart track as prescriptive right. On the other hand, the respondent denied the same and contended that the property of the appellant situates towards southern side of Ramajogihalli and Kurudihalli road and he can enter his property through southern side of the property. The Ramajogihalli - Kurudihalli road is very close to the property of the appellant and there is no ''AB'' cart track as shown in the rough sketch. Further, no material has been produced to show the existence of the alleged cart track.

The appellant/plaintiff in order to prove his case, examined himself as P.W.1 and reiterated the plaint, averments. In the cross-examination he has admitted that the Ramjogihalli and Kurudihalli road passes through very close to his property. The defendant, Kote Vishwanatha Reddy and the plaintiff are using the said road to go to their property. He has admitted that to remove the crops, Pallaraiah and Obaiah are using the tractor. As per the village sketch, there is no existence of cart track as shown by the plaintiff and he has admitted that he has to pass through his property through Ramajogihalli-Kurudihalli road. He has further admitted that except the said Ramajogihalli-Kurudihalli road, there is no existence of any cart track, The P.W. 1 in order to prove his case has produced Ex.P.5 to Ex.P.10 photographs of the said property, but the photographs do not chow the existence of ''AB'' car track as alleged by the plaintiff. Further, at the instance of the appellant, the Court Commissioner has been appointed and the Commissioner visited the spot and given his report stating that there is no existence of ''AB'' cart track in the property of the defendants.

P.W.2-M.G. Thippeswamy in his evidence has deposed that his property is situated towards south of the property and he has admitted that the plaintiff has to enter his property through southern side on Ramajogihalli-Kurudihalli road and the said road passes through the properties of defendant and Kote Vishwanatha Reddy. P.W.3 has also deposed in similar lines.

The Power of attorney holder of the defendant was examined as D.W.1. In his evidence he has reiterated the stand taken in the written statement and denied the existence of the ''AB'' cart track in the rough sketch shown by the plaintiff. In support of his contention, he examined one Nagendra Reddy who is the owner of the adjacent land.

The Trial Court on appreciating the oral and documentary evidence let in by the parties held that the ''AB'' cart track in the property of the defendant does not exists and the plaintiff has also failed to prove the existence of the cart track. Accordingly, dismissed the suit. The Lower Appellate Court on reappreciating the oral and documentary evidence adduced by the parties and considering the report: submitted by the Court Commissioner who was appointed at the instance of the plaintiff, held that the plaintiff has failed to prove the existence of ''AB'' cart track touching the Ramajogihalli-Kurudihalli road.

P.W.2 in his cross-examination has admitted that towards south of Ramajogihalli-Kurudihalli road, the plaintiff has an entrance to his property. Further, the plaintiff has not produced any documents to show the existence of 5 feet height katte to the East, West and Southern side of the property of the plaintiff. The witnesses who have been examined by the plaintiff did not speak about the existence of 5 feet height katte. Both the courts on appreciating and reappreciating the oral and documentary evidence let in by the parties held that. ''AB'' cart track as shown in the rough sketch does not exist and the plaintiff has not proved the existence of the same. The finding recorded by the courts below are purely question of facts and the appellant has not made out a case to interfere with the same. Hence, the point framed in this appeal is held against the appellant. Accordingly, the appeal is dismissed.

In view of dismissal of the main appeal, I.A.No.2/2006 seeking for stay is also dismissed.