Vijaya Kumar Bedi vs New Taj Mahal Cafe (P) Ltd on 16 February, 2024

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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.

3

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
4

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
5

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,
6

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
7

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
8

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
9

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
10

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
11

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
12

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
13

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
14

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?

16

     (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?
                                    17



           (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.
21

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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VISHAL SAINI ADVOCATE