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Karnataka High Court
Vijaya Kumar Bedi vs New Taj Mahal Cafe (P) Ltd on 16 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.842/2007 (DEC/INJ)
BETWEEN:
1. VIJAYA KUMAR BEDI
SINCE DECEASED BY HIS LRS
1(a) MRS.SHOBHA BEDI
AGED ABOUT 60 YEARS
W/O LATE VIJAY KUMAR BEDI
1(b) SRI DILIP KUMAR BEDI
AGED ABOUT 36 YEARS
1(c) SRI MANOJ KUMAR BEDI
AGED ABOUT 35 YEARS
1(d) SRI SUNIL KUMAR BEDI
AGED ABOUT 31 YEARS
1(e) SRI HARISH KUMAR BEDI
AGED ABOUT 28 YEARS
SONS OF LATE VIJAY KUMAR BEDI
ALL ARE RESIDENTS OF VIJAY NIVAS
NO.1145, 10TH CROSS, ADARSHA LAYOUT
NEAR OLD SUB-REGISTRAR OFFICE
BASAVESHWARNAGAR
BANGALORE-560 079. ... APPELLANTS
(BY SRI CHOWDA REDDY C., ADVOCATE FOR
SRI N.DINESH RAO, ADVOCATE FOR M/S. RAO ASSOCIATES)
2
AND:
1. NEW TAJ MAHAL CAFE (P) LTD.,
A COMPANY CONSTITUTED UNDER
THE COMPANIES ACT,
HAVING ITS OFFICE AT
CAR STREEET, MANGALORE-1
REPRESENTED BY ITS EXECUTIVE DIRECTOR
KUDPI JAGADISH SHENOY
S/O LATE K.S SHENOY
AGED ABOUT 57 YEARS
MANGALORE -01. ... RESPONDENT
(BY SRI M.VIJAYA KRISHNA BHAT, ADVOCATE)
THIS R.S.A. IS FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 20.12.2006 PASSED IN
R.A.NO.8/2004 ON THE FILE OF THE II ADDL.CIVIL JUDGE
(SR.DN.), MANGALORE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DATED 20.12.2003
PASSED IN O.S.NO.482/2000 ON THE FILE OF THE IV
ADDL.CIVIL JUDGE (JR.DN.), MANGALORE.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the
respondent.
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2. The factual matrix of the case of the plaintiff
before the Trial Court while seeking the relief of injunction,
is that he is the absolute owner of the plaint schedule
property having acquired the right as per the registered
sale deed dated 30.06.1996 and ever since the acquisition
of the schedule property, the plaintiff has been in actual
possession and enjoyment of the entire schedule property.
The schedule property consists of a non-residential building
and the said building is kept closed since some time. In
order to gain access to the schedule property there exist a
motorable approach road from the Maidan North road and
the said motorable approach road is abutting the plaint
schedule property on its eastern side. The property of the
defendant is situated by the eastern side of the plaint
schedule property and the above said motorable approach
road. Ever since the date of acquisition of the schedule
property, the plaintiff and prior to him his predecessor in
title have been using the said road as common road along
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with the defendant. The plaintiff in order to reach the
schedule property has to pass through the said road and
there is no other approach at all for men or vehicles to
reach the plaint schedule property. The plaintiff’s right of
use of the said approach road is by express grant as
evidenced in the earlier title deeds of the plaintiff’s
predecessors in title and the said road has been asphalted.
The defendant during third week of July 2000 all of a
sudden put up 2 laterite stone pillars at the point “B” and
“C” shown in the sketch attached to the plaint and put up
an iron gate in between the common approach road in
between the points B and C. So also the defendant has put
up a compound wall in between the points A and B shown in
the sketch attached to the plaint. Thus, the defendant has
by such illegal act, totally blocked the road.
3. On 08.09.2000, the defendant has removed the
laterite stone compound wall between A and B shown in the
plaint sketch and the defendant has also removed the big
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gate and the 2 pillars, on which the said gates rests, at the
point where the suit road joins the Maidan North road and
in its place the defendant has put up 3 pillars, out of which
one is on the western edge of the suit road, the second one
in the suit road at a distance of about 2 ½ feet from the
first one and the third one at the eastern edge of the suit
road and has put up 2 gates one small and another big gate
at that point. The big gate is kept always locked and the
said act of the defendant is illegal and the said lock is liable
to be removed and the defendant has no right to keep the
said gate locked. In view of the locking of the gate, the
plaintiff’s right to use the approach road has been violated
and the plaintiff is unable to use the suit road. Inspite of
repeated requests by the plaintiff for removal of the
obstruction caused to the common approach and to remove
the compound wall put across the plaint A schedule
property in between A and B points, the defendant has not
complied the same. Except the said common approach,
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motorable road is the only access to the plaint schedule
property and the plaintiff is deprived of the very access to
his property. Hence, the plaintiff has filed the present suit.
4. In pursuance of the suit summons, the
defendant has filed the written statement denying the plaint
averment and also stated that he is not aware that the
plaintiff is either the owner of the suit schedule property or
that he is in possession of the said property and that the
plaintiff does not come to or use the schedule property.
Therefore, the defendant does not admit that the plaintiff is
in actual possession and enjoyment of the schedule
property. The claim of the plaintiff that he acquired the
Muli right of the schedule property as per sale deed dated
30.05.1996 is not admitted by the defendant and there is
no motorable approach in existence as stated by the
plaintiff in the plaint and there is no common approach road
and also denied the allegation that the defendant has put
up the laterite stone pillars as contended by the plaintiff
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and also fixing the iron gate in between the points B and C
and construction of the compound wall. The defendant has
stated that there is no wall in between what is marked as A
and B in the plaint sketch and though the plaintiff has no
right of way of whatsoever nature across the property of
the defendant, even so, the defendant would not deny the
permission to walk through the property of the plaintiff to
reach the premises of the plaintiff if it is so required. It is
contended that plaintiff has no absolute legal right as such,
to use any potion of the property of the defendant.
5. It is contended by the defendant that the large
extent of the property with buildings existing in between
maidan 1st Cross and lady Goschen Hosptial Road towards
north of the main Maidan Road belonged to the members of
an Aliya Santhana Family who brought about division of
property by filing suit in O.S.No.76/41 on the file of sub
court of South Kanara and a preliminary decree was passed
on 06.02.1943 and subsequently, final decree was passed
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on 07.01.1946 in R.I.A.No.742/43 in O.S.No.76/41. The
said property was bearing T.S.No.185/1 and R.S.No.603 of
Kasaba Bazar village measuring 2.53 acres and out of that
a small extent of 0.5 cents having been acquired by the
Government, finally possessed 2.48 acres of land with
building as mentioned in the preliminary decree. The final
decree indicates that the division reported submitted by the
Court Commissioner was accepted by the court and
accordingly, partition was brought amongst the various
sharers.
6. The Commissioner’s report dated 21.04.1944
indicates that the property of 65 cents containing Central
Talkies as plot D and after excluding the property, which
had earlier been leased out. 1.83 acres of land was
available to be divided and in the middle portion of that
property, the defendant was running a coffee hotel as per
lease deed of 1939. 1.49 acres of land was covered by
lease deed in favour of the defendant. The Court
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Commissioner provided frontage to Taj Mahal building made
it plot C measuring 60 cents. The remaining area of 1.23
acres was divided into A and B and B shares. The
commissioner also observed that it is difficult to give 41
cents to each of the 48 sharers without breaking the
buildings then existing on the property. The
commissioner’s report shows that the north-western portion
of the divisible property containing shops could be allotted
to ‘A’ share the extent of the land was 40 cents. Another
share made was referred as ‘B’ share measuring 42 cents.
It is northern portion lying to the east of share A and one
more division was south-western portion referred to E share
and it faced the Lady Goschen Hospital road on the west
and Maidan road on the south and the extent of the share
was 41 cents.
7. The Commissioner also stated that the property
shown as ‘C’ share was the property of the other sharers in
the front and there was no frontage towards maidan road
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for that ‘C’ share except the little frontage, which could not
be used as shop site. In other words, what is referred as
the approach road in the plaint is actually the little frontage
of the ‘C’ schedule property mentioned in the
Commissioner’s report. The final decree indicates that ‘C’
share was allotted to the 1st defendant viz., Venkatappa
and 26th defendant as legal heir of 2nd defendant. 26th
defendant has purchased it. The property which the plaintiff
claims in the plaint schedule is part of what was described
as ‘E’ schedule in the Commissioner’s report and it was
allotted to the 8th defendant viz., Nagamma. It was given to
her exclusive share as clearly mentioned in the final decree.
The ‘E’ schedule was abutting Maidan road as well as Lady
Goschen Hospital Road and hence, there was no need for
any road approach for that property from any other portion
of that divided property. In fact, no right of road or other
easement has been reserved in between the various
sharers as per Commissioner’s report and final decree. The
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successors of ‘E’ schedule sharers cannot impose any
easement on other properties after the division. The said
Nagamma to whom ‘E’ schedule was exclusively allotted
had earlier executed a settlement deed dated 05.10.1942 in
favour of her sons viz., Ananda Talwar and Raghuveer
Karkada and the heirs of both Ananda Talwar and
Raghuveer Karkada entered into partition as per deed dated
16.06.1961. The ‘E’ schedule property has been sub-divided
into ‘A’ and ‘B’ schedule of the said deed. In the ‘A’
schedule portion of 15.25 cents with buildings was shown
as ‘E2’ property. It is the south western portion of
T.S.No.185/1. Even when this sub division took place, the
property abutted public road on the west and south and as
such, no separate easement right was reserved and none
could be reserved by law. The plaint schedule property is a
tiny portion out of said ‘E2’ schedule and if at all, the
plaintiff claims any easement right, it can be from the
remaining portion of ‘E2’ schedule and not from what was
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allotted in the ‘C’ schedule by the Court Commissioner. By
the partition deed dated 21.11.1968, the ‘E2’ schedule was
further sub-divided. The road side shops facing Lady
Goschen Hospital was allotted in the ‘A’ Schedule to Kalyani
Talwar. It was marked as ‘E2A’ in the plan and Mr.Sumitra
Talwar got the ‘B’ schedule property measuring 8.75 cents,
with building which was marked as ‘E2C’. This property
abutted the Maidan road and the south western portion also
abutted Lady Goschen Hospital road. Another portion is
marked as ‘E2B’ and it was allotted in ‘C’ schedule to
Smt.Kesari Sushil Chander. Mr.Sumitra Talwar had leased
out a portion of 7 1/2 cents with building to the defendant
as possession and enjoyment indenture of lease deed dated
23.04.1979. In fact, the defendant was in possession even
earlier as lessee. Subsequently, by the deed dated
31.08.1994, the tenancy was surrendered by the defendant
to Sumitra Talwar. On 31.08.1994, a portion of the building
and land in the actual occupation of the defendant was
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made over to the defendant by perpetual lease deed
followed up by sale of Mulgar’s right by deed dated
04.11.1999 so that out of ‘E’ schedule property, the
defendant is the owner of the building area actually in the
possession of the defendant. By virtue of the surrender
deed dated 31.08.1994, the Power of Attorney holder of
Sumitra Talwar viz., K.Ajith Kumar Rai could get possession
of some potion of the building covered by the ‘E’ schedule.
The plaintiff cannot have easement right whatsoever on the
alleged approach road which is part of the ‘C’ schedule
property. It is the exclusive property of the defendant and
the approach is meant only for the defendant and their
customers and the main Taj Mahal hotel building is in the
‘C’ schedule property and therefore the alleged approach is
part of the property enjoyed by the defendant and the
defendant has got another access in front of the main hotel
building and that is kept open. This additional approach to
the property of the defendant is kept closed at the point
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marked ‘E’ and ‘C’ in the plaint plan so that unauthorized
entry of strangers is prevented. There has been a gate at
the point of entrance from Maidan road and there is also a
wicket gate at that point which has been kept because the
Advocates have been occupying upstairs portion of the road
side building and to go to the upstairs portion of the road
building and the plaintiff is not entitled for the relief as
prayed and prayed the court to dismiss the suit.
8. The defendant also filed additional written
statement after amending the plaint by the plaintiff stating
that the main gate and wicket gate at the point of the
property touching the Maidan north road existed since ages
and there was no stone compound wall between points A
and B in the plan. Hence, its removal did not take place.
The pillars and gate at the point of entry from Maidan North
Road was not put up on 08.09.2000 as falsely alleged. The
big gate as mentioned in the amended plaint is the gate for
the private property of the defendant and there is no space
15
through the defendant’s compound and it is kept locked and
the question of violating the alleged rights by the defendant
does not arise and the plaintiff is not entitled for the
mandatory injunction as prayed.
9. The Trial Court on the basis of the pleadings of
the parties framed the following issues:
(i) Whether the plaintiff proves that in order to
gain access to the schedule property there
exists a motorable approach road from the
Maidan North Road?
(ii) Whether the plaintiff proves that he has got
right in the schedule road?
(iii) Whether the plaintiff proves that around
the third week of July 2000 all of a sudden
put up two laterite stone pillars at the point
B and C shown in the sketch attached to
this plaint and put up an iron gate in
between the common approach road in
between the point B and C?
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(iv) Whether the plaintiff is entitled for
mandatory injunction and permanent
injunction?
(v) What order or decree?
10. The plaintiff in support of her case examined her
son as PW1 and got marked documents Ex.P1 to Ex.P20.
On behalf of the defendant one witness is examined as DW1
and got marked documents Ex.D1 to Ex.D4.
11. The Trial Court having considered both oral and
documentary evidence answered all the issues as
affirmative and decreed the suit. Being aggrieved by the
judgment and decree of the Trial Court, an appeal is filed in
R.A.No.8/2004. The First Appellate Court after considering
the grounds urged in the first appeal formulated the
following points:
(i) Whether the appellant has made out
grounds to allow the appeal as prayed?
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(ii) Whether the appellant proves that the
findings of the lower court need
interference?
(iii) What order?
12. The First Appellate Court reversed the finding of
the Trial Court by answering both the points in the
affirmative and hence, this second appeal is filed before this
court.
13. This court having considered the grounds urged
in the appeal memo, admitted the appeal and framed the
following substantial question of law:
(i) Whether the judgment and decree of the First
Appellate Court is perverse in misreading the
evidence of PW1 and Commissioner’s report
with regard to the status and nature of the
property?
14. The learned counsel appearing for the appellant
vehemently contends that this second appeal is against the
18
divergent finding. He would contend that the Trial Court
while considering the documents, which have been marked
on behalf of the plaintiff, the documents, which have been
marked on behalf of the defendant and also the admission
on the part of DW1 with regard to blocking of the approach
road has rightly come to the conclusion that the defendant
has caused obstruction to the free access of the plaintiff.
The First Appellate Court reversed the said finding by
considering the documents viz., Ex.P2 and P3 and failed to
consider the document of earlier partition deed where
provision is made for access and the same has not been
discussed. The Trial Court discussed the same and comes to
the conclusion that plaintiff has made out an easementary
right and granted the relief. The First Appellate Court also
failed to consider the documents, which have been filed by
the plaintiff and also the admission on the part of DW1 and
the same was considered by the Trial Court while answering
19
issue No.3 and the very approach of the appellate court is
erroneous and the same is not based on material.
15. Per contra, the learned counsel appearing for the
respondent in his argument would vehemently contend that
earlier a suit was filed and a partition was effected through
the court. He would also submit that schedule ‘E’ property,
which was allotted in favour of Nagamma is the property
allotted to the original owners of the plaintiff. The ‘C’
schedule property was allotted in favour of the defendant
and having independent access to the respective properties.
The defendant was tenant and he had purchased a portion
of ‘E’ schedule and also further division was made in
respect of ‘E’ schedule property. He would also submit that
the plaintiff is a purchaser and the prayer is made only for
mandatory injunction and no prayer is sought in the plaint
for declaration of easementary right. He would further
submit that there is no servient right and no document is
produced to claim the easementary right and the son has
20
been examined as Power Of Attorney holder. He would
vehemently contend that the appellate court has discussed
the same in detail and has taken note of the fact that the
title deed is not produced with regard to the claim of the
plaintiff and when no relief of declaration is sought, the
question of granting easementary right does not arise. He
would contend that in the written statement, a specific case
was put forth by the defendant particularly in page No.7
and the same has been considered by the appellate court.
16. In reply to the arguments of the learned counsel
for the respondent, learned counsel for the appellant
submits that there is a clear admission by D.W.1 and also
there is a recital in the document viz., Ex.D4 and also
Ex.D20 discloses that there is an easementary right. The
Trial Court rightly discussed the same in para 10 of the
judgment and a detailed order has been passed, whereas,
the First Appellate Court has committed an error in not
discussing or considering the above said documents.
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17. In reply to the reply of the learned counsel for
the appellant, counsel for the respondent would submit that
there is no motorable road and easementary right within
their respective properties and not in the property of
defendant. It is not in dispute that the property is abutting
the road and no provision is made for parking and the small
gate is not closed and when the relief is not sought for
declaration, question of granting the relief does not arise.
18. Having heard the arguments of learned counsel
appearing for the appellant and learned counsel appearing
for the respondent and also taking into note the substantial
question of law and this court while admitting the second
appeal has formulated the substantial question of law,
whether the judgment and decree of the First Appellate
Court is perverse in misreading the evidence of PW1 and
Commissioner’s report with regard to the status and nature
of the property? and while considering this substantial
22
question of law, the question is whether the Assistant
Commissioner has misread the evidence of PW1 and
commissioner’s report, the evidence of PW1 has to be
considered in view of substantial question of law framed by
this court. The plaintiff is not examined but the Power Of
Attorney holder who is the son of the plaintiff has been
examined as PW1. PW1 reiterated the averments of the
plaint and also deposed that after filing of this suit on
08.09.2000, the defendant has removed the wall, which is
shown as A and B and they have put a new gate and the
same is kept under lock. It is also his case that near the big
gate they put small wicket gate. Earlier they have not put
any lock to the Iron Gate, but after installation of new gate,
they locked it and hence, the same is causing obstruction to
the plaintiff. In order to prove the factum of the obstruction
of demolition of earlier gate and installation of new gate,
they have produced photographs, which are marked at
23
Ex.P11 to Ex.P15 and negatives are marked at Ex.P16 to
Ex.P17.
19. It is also his evidence that he gave the complaint
and police gave an endorsement in terms of Ex.P19 and the
Commissioner has also visited the spot and has submitted
his report. This witness was cross-examined and in the
cross-examination, he admits that prior to 09.02.2002, his
father was conducting this case. When a suggestion was
put to him that his father did not come forward to give
evidence and if he comes, truth will come out, the said
suggestion was denied. It is elicited that prior to purchasing
of the said property, the same was in the possession of one
Rajesh Nagappa and he was running a lottery shop.
20. This court also perused the commissioner’s
report, which is marked at Ex.C1. Since, this court has
framed the substantial question of law in respect of
evidence of PW1 as well as the Commissioner’s report, on
24
perusal of Commissioner’s report, the evidence of the
Commissioner who has been examined as CW1, and his
report is marked at Ex.C1 and also the sketch, which is
marked as Ex.C1A. He was also subjected to cross-
examination, in which he admits that he has not taken the
assistance of the Surveyor and he prepared the sketch at
the spot. He admits in the cross-examination that the said
sketch indicates that there is a small gate to take their
access from Maidan North road to go inside and also there
is a bigger gate next to the same. He admits that through
this small gate, to reach the disputed property there is no
difficulty. He also noticed cement plastering when he had
visited the spot. The evidence of PW1 and also the
Commissioner’s evidence and also the evidence of DW1,
which is also material has to be considered since, the
counsel appearing for the appellant brought to the notice of
this court certain admissions on the part of DW1 and the
25
same is considered by the Trial Court while answering issue
No.3.
21. Having considered the evidence of DW1 in which
he speaks about the property originally belongs to Talwar
family and also there is a decree in terms of Ex.D1 and also
the Commissioner’s report in terms of Ex.D2 in respect of
earlier suit and also the sketch prepared, which is marked
at Ex.D3. D.W.1 has spoken about the earmarking of the
property earlier in terms of Ex.D3 A2E properties. He also
relies upon document Ex.D4 i.e., deed of partition in the
family of Anand Talwar. He categorically says that in the
said Ex.D4 E2B, property belongs to the plaintiff and he
says that there is no access from the property of the
defendant and also no wall or compound is put up or
removed any gate. He was subjected to cross-examination,
in which he admits that originally the property belongs to
Talwar family and also admits that the building attached to
Maidan Road and his hotel is also located in the said place.
26
He also admits that he had purchased the property from
Sunitha Talwar through Power Of Attorney holder K.Ajith
Kumar Rai. In the cross-examination also, he admits that in
Ex.D3 E portion, which is on the southern side, which is
marked in green color, they have purchased the same and
on the north, the plaintiff schedule property is located. He
admits that both the gates Ex.D3A and Ex.D3B are main
gates. He also admits that in terms of Ex.D3A gate to
Ex.D3C, there is a dammar road, but he claims that they
formed the said road, but he cannot tell when it was
asphalted. He also admits that plaintiffs are also claiming
right in the said dammar road. He admits that in terms of
Ex.D3A and Ex.D3B except these two points, in Ex.D3A,
Ex.D3E and Ex.D3C property, there is no other road. He
admits that there is one road in Ex.D3A to go to the suit
schedule property. He also admits in the cross-examination
that Ex.D3A and Ex.D3B gates are in existence from prior to
1939. When the photographs are confronted to him i.e.,
27
Ex.P7, he denies he cannot tell to whom it belongs to. The
plaint sketch was also confronted to him and a suggestion
was made that the wall was put up on A and B and also a
gate was put on point B and C, he admits that the same
was put in 2003 in the third week of July, but he disputes
the sketch. He admits the photographs Ex.P4 stating that
the said building belonged to Sunita Talwar from whom
they have purchased, but he says that they have not put
any cement plaster wall as shown in Ex.P4, but he cannot
tell who have put the same and he says, now the same is
not in existence and also says earlier also it was not in
existence. He also admits Ex.D3 that A, B, D and except the
plaint property, remaining properties belongs to them and
he admits the same. It is also his claim that ‘C’ schedule in
terms of Ex.D3 belongs to them. In the cross-examination,
he admits that they put unlawfully the gate, but claims that
the same is put in their land. It is suggested that they are
not having any right to put up the said gate and the same
28
was denied but he volunteers that they have not put up any
wall.
22. Having considered both oral and documentary
evidence available on record and also considering the
evidence of PW1 and DW1, it is the specific case of the
plaintiff that they have blocked the road by putting the gate
and constructing the wall. Ex.P4, the photograph also
clearly discloses that a new wall is erected. In one breath,
DW1 says that the same is put up unlawfully, but he
contends that the same is put up in their property. Once
again, he says that the same is not there and earlier also it
was not in existence, but the very photograph Ex.P4
discloses the construction of the wall and closing of the gate
and also Ex.P5 discloses a new wall put up and closed and
also in Ex.C6, Ex.P7 and photographs are also produced for
having taken up the work and also erecting of small gate
and also the new gate. It is also important to note that the
Commissioner’s report is very clear that he found recent
29
cement plastering when he visited the spot. Apart from the
document of partition, Ex.D4 is very clear that a
easementary right is given in respect of ‘A’ to ‘C’ schedule
properties and this partition has taken place in the year
1968 amongst the members of the Talwar family and the
same is shown in the schedule ‘A’, ‘B’ and ‘C’ wherein, it is
specifically mentioned that in respect of shops bearing Door
Nos.13, 592, 593, 594, 595 in all, 5 shops building with
easementary rights appurtenant thereto boundaries and so
also in ‘B’ Schedule property mentioned easementary rights
and so also, in respect of ‘C’ schedule property and sketch
is also annexed to Ex.D4, which is Ex.D4A and also when
the DW1 categorically admits in the cross-examination that
is the only way available to the plaint schedule property
i.e., from Ex.D3A and no other road in existence in order to
reach the property of the plaintiff and that is the only road
having access in terms of Ex.D3A road is shown in
document Ex.D3 and when such admission is given and also
30
the material clearly discloses that a wall was constructed
and a gate was put and it is also the specific case of the
plaintiff that they caused obstruction by erecting a wall and
a gate and the same has been considered by the Trial Court
in para 13 of the judgment in detail discussed the same,
the appellate court committed an error in reversing the
finding of the Trial Court in coming to the conclusion in para
17 that evidence of PW1 is not supported by the
documentary evidence. The appellate court only considered
the documents Ex.P2 and Ex.P3 and has failed to consider
the documents viz., Ex.D4 and Ex.P20. The observation
made by the First Appellate Court that the plaintiff also
failed to prove the interference by the defendant and also
failed to prove that defendant has put up construction in
the space belonging to the plaintiff is erroneous. It is not
the case of the plaintiff that construction has been put up in
the space belonging to the plaintiff but the place in which
access is provided to the plaintiff is obstructed is the case of
31
the plaintiff. The First Appellate Court has failed to take
note of the fact that there are two roads, one is small road
and another is a big road as per the sketch and DW1 in his
evidence has admitted in the cross-examination that there
is only one road in terms of Ex.D3A to reach the disputed
popert. The appellate court on perusal of para 6 of the
Commissioner’s report, wherein it is stated that since, the
pillars and compound wall was cement plastered and white
washed but, the Commissioner is not in a position to note
the freshness of the said stone pillars and laterite stone
compound wall, but the evidence of CW1 Commissioner is
very clear that he noticed recent cement plastering. Apart
from that the photographs which have been produced
before the court also are very clear with regard to erection
of wall and also the gate, and failed to take note of these
factors and the finding given by the First Appellate Court is
perverse as contended and the material evidence has been
ignored by the First Appellate Court. The Trial Court having
32
considered both the evidence of PW1 and also the evidence
of DW1 and apart from the documents, which have been
relied upon by the plaintiff as well as the defendant rightly
comes to the conclusion that the defendant caused
obstruction and answered issued No.3 in the affirmative.
The finding of the First Appellate Court is perverse since,
the material evidence both oral and documentary evidence
has not been considered in its proper perspective and when
the appellate court ignored the documentary evidence at
Ex.D4 and Ex.P20 and only considered Ex.P2 and Ex.P3 and
comes to the conclusion that Ex.P2 and Ex.P3 does not
provide any road in favour of the plaintiff and the fact that
the property originally belongs to the Talwar family and also
there was a partition between the Talwar family in the year
1968 and in the said partition in respect of A, B and C
schedule properties, easementary right is also provided,
which has not been considered by the First Appellate Court.
Hence, I answer the substantial question of law as
33
affirmative in coming to the conclusion that the finding of
the First Appellate Court is perverse and the same is
against the material available on record. In view of the
discussions made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree of the First
Appellate Court passed in R.A.No.8/2004 on the file of II
Additional Civil Judge (Sr.Dn.), Mangalore is set aside and
the judgment and decree in O.S.No.482/2000 on the file of
the Additional Civil Judge (Jr.Dn.), Mangalore is restored.
Sd/-
JUDGE
ss/-
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