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2022 Supreme(Online)(Kar) 38860
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2022
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5038/2012 (DEC/INJ)
BETWEEN
1.
GUDUSAB JHANSAB GUDDAD,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O MANJALAPUR, TQ: SHIRAHATTI,
DIST: GADAG.
2.
DASTHGIRISAB KHANSAB GUDDAD,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O MANJALAPUR, TQ: SHIRAHATTI,
DIST: GADAG.
...APPELLANTS
(BY SRI ASHOK T.KATTIMANI, ADV.)
AND
1.
SRI NAGAPPA HANAMANTAPPA BAJANTRI
SINCE DECEASED REPRESENTED BY HIS LRS.
1(A) SOMAPPA S/O NAGAPPA BHAJANTRI @ KSHTRIYA,
AGE : 40 YEARS, OCC: TEACHER,
R/O BASTI BAN, LAXMESHWAR-582116.
TQ: SHIRAHATTI, DIST: GADAG.
1(B) ANAND S/O NAGAPPA BHAJANTRI @ KSHTRIYA,
AGE : 36 YEARS, OCC: BUSINESS,
R/O BASTI BAN, LAXMESHWAR-582116.
TQ: SHIRAHATTI, DIST: GADAG.
1(C) NEELAVVA D/O NAGAPPA BHAJANTRI @ KSHTRIYA,
AGE : 32 YEARS, OCC: HOUSEHOLD WORK,
R/O BASTI BAN, LAXMESHWAR-582116.
TQ: SHIRAHATTI, DIST: GADAG.
2
1(D) HEMAVVA D/O NAGAPPA BHAJANTRI @ KSHTRIYA,
AGE : 36 YEARS, OCC: HOUSEHOLD WORK,
R/O BASTI BAN, LAXMESHWAR-582116.
TQ: SHIRAHATTI, DIST: GADAG.
2.
IMMAMHUSENSAB JANGLISAB JAMAKHANDI
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O LAXMESHWAR-582116,
TQ: SHIRAHATTI, DIST: GADAG.
3.
GOUSUSAB KARIMSAB MUNDAS,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. LAXMESHWAR-582116,
TQ: SHIRAHATTI, DIST: GADAG.
4.
MOHAMMADHANIF MOHAMMADHUSEN SIDDI
AGE : 48 YEARS, OCC: AGRICULTURE,
R/O LAXMESHWAR-582116,
TQ: SHIRAHATTI, DIST: GADAG.
5.
MAQUBALSAB MOHAMMADHUSEN SIDDI
AGE : 46 YEARS, OCC: AGRICULTURE,
R/O. LAXMESHWAR-582116,
TQ: SHIRAHATTI, DIST: GADAG.
…. RESPONDENTS
(BY
SRI V.R.PATIL, ADV. FOR APPELLANT NO.1
NOTICE TO RESPONDENT NO.2 : HELD SUFFICIENT
SRI LAXMAN T.MANTAGNI ADV. FOR R1(A) TO R1(D)
AND C/R2 TO C/R5)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 05.12.2011 PASSED
IN R.A.NO.20/2010 BY THE ADDL. SENIOR CIVIL JUDGE,
GADAG
SITTING
AT
LAXMESHWAR
BY
REVERSING
THE
JUDGMENT AND DECREE DATED 18.02.2010 PASSED IN
O.S.NO.382/1995 BY CIVIL JUDGE (JR.DN.) LAXMESHWAR BY
ALLOWING THIS APPEAL WITH COST IN THE INTEREST OF
JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
The captioned regular second appeal is filed by
defendants questioning the judgment and decree
passed
by
the
First
Appellate
Court
in
R.A.No.20/2010.
Facts leading to the above said case are as
under:
Respondents-plaintiffs filed a suit for declaration
and
for
consequential
relief
of
injunction.
Respondents-plaintiffs claim that they have got
easementary right by way of prescription in the cart
road which is shown as ‘ABCDE’ in the hand sketch
annexed along with plaint. Respondents-plaintiffs
claim that they are the owners of Sy.No.60, which has
undergone
sub-divisions.
Respondents-plaintiffs
specifically pleaded that the entire extent was
originally owned by plaintiff No.1’s ancestor and they
have been using suit cart road. Respondent No.1-
plaintiff No.1 further contended that portion of lands
4
were sold to respondent Nos.2 to 5 and pursuant to
alienation Sy.No.60 has undergone sub-divisions and
therefore they are assigned with Sy.Nos.60/1+2/E,
60/1+2/C, 60/1+2/B and 60/1+2/8.
Respondents-plaintiffs claim that they have
been using the cart road which is situated on the
western
side
of
appellants-defendants’
property
bearing Sy.No.41/4 and Sy.No.42/4. It is specifically
pleaded that to reach the main road, which is also
called Laxmeshwar-Battur Road, the suit cart road is
the only access and plaintiff No.1 since the time of his
ancestors has been using this cart road so as to reach
the main road. Respondent No.1-plaintiff No.1 has
specifically pleaded that this cart road is being
enjoyed by respondent No.1-plaintiff No.1 and his
ancestor for last 100 years and said cart road is used
to carry the bullock cart and as well as agriculture
equipments as well as vehicles namely tractor for
agricultural
work.
It
is
in
this
background,
5
respondents-plaintiffs
contended
that
they
have
acquired easementary right by way of prescription and
account of alienation by respondent No.1-plaintiff No.1
in favour of respondent Nos.2 to 5, who have
purchased the portion of the land and they have also
acquired
similar
easementary
right
by
way
of
prescription.
On
these
set
of
grounds,
the
respondents-plaintiffs sought for relief of declaration
to declare that they have got easementary right by
way of prescription.
Appellants-defendants
appeared
and
contested the proceedings. The appellants-defendants
filed written statement and stoutly denied the entire
averments made in the plaint. The present appellants-
defendants seriously disputed the description of the
suit property and the hand sketch produced along with
the plaint. The present appellants-defendants have
specifically denied the use of alleged cart road by
respondents-plaintiffs. The appellants-defendants also
6
contended that lands owned by respondents-plaintiffs
fall within the village of Hulageriban and though the
appellants-defendants lands are adjoining lands, they
are situated in the adjoining village Bastibana. A
specific contention was also taken by the appellants-
defendants to the effect that the respondents-plaintiffs
have an alternate road and they have to travel around
two kilometers on Laxmeshwar-Gadag Road and
thereafter they have to take a turn at point ‘P’ to the
East, therefore they have an access through footpath
(Kaludari) and to reach point ‘Q’ and thereafter they
can proceed to point ‘R’.
Respondents-plaintiffs in support of their
claim led in ocular evidence by examining PWs.1 to 3
and produced documentary evidence vide Exs.P.1 to
P.26. The present appellants-by way of rebuttal
evidence examined three witnesses and produced
documentary evidence vide Exs.D.1 to D.6.
7
6.
The Trial Court having assessed the oral
and documentary evidence has proceeded to dismiss
the suit by recording a categorical finding that the
respondents-plaintiffs have an alternate road and
therefore has refused to grant relief of declaration in
favour of respondents-plaintiffs in regard to their
easementary rights by way of prescription in the suit
cart road.
7.
Feeling
aggrieved,
the
respondents-
pl
