- 1 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 292 OF 2013 (DEC/INJ) BETWEEN: 1. G. CHANNABASAPPA NOW DEAD BY LEGAL REPRESENTATIVES 1(A) NARESHWARAPPA G.C. S/O LATE G. CHANNABASAPPA AGED ABOUT 49 YEARS 1(B) SMT. H.C. BASAMMA W/O K.H. BARAMAPPA & D/O LATE G. CHANNABASAPPA AGED 56 YEARS BOTH ARE R/O HULIKATTE VILLAGE AT POST DAVANAGERE TALUK & DISTRICT – 577 512 …APPELLANTS (BY SRI. T C SATHISHKUMAR, ADVOCATE) AND: 1. M.B. CHANDRAPPA NOW DEAD BY LEGAL REPRESENTATIVE’S 1(A) SMT. LAKSHMAMMA M.B. W/O LATE M.B. CHANDRAPPA AGED ABOUT 68 YEARS 1(B) MANJUNATHA Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 S/O LATE M.B. CHANDRAPPA AGED ABOUT 49 YEARS BOTH ARE R/O HULIKUNTE VILLAGE AT POST DAVANAGERE TALUK AND DISTRICT – 577 512 2. SMT MANJULAMMA W/O K.R. REVANNASIDDAPPA, AGED 45 YEARS, R/O HULIKATTE VILLAGE AT POST, DAVANAGERE TALUK & DISTRICT – 577 512 …RESPONDENTS (R2 SERVED PROPOSED R1(A) & R1(B) ARE SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 5.11.2012 PASSED IN R.A.NO.7/2009 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE, DAVANAGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 3.12.2008 PASSED IN OS.NO.222/1998 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.), DAVANAGERE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the judgment and decree passed in R.A.No. 7/2009 dated 05.11.2012, passed by the learned I Additional Senior Civil Judge, Davanagere. - 3 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for a declaration and a permanent injunction. It is the case of the plaintiff that there exists a road way in the property bearing No.318 situated at Hulikatte village, Davanagere Taluk and this property, along with the open space, the plaintiff is said to be the owner and in possession of the same and in front of his house there is a road measuring 10’ width leading from Bevinakatte –Gudalu village commencing from Bevinakatte village till the open space in front of his house. The plaintiff and his family members use the said road to take their vehicles etc., and another road is said to lead towards his house. It is a public road, as shown in the plaint schedule. - 4 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 4. It is contended that the defendants are illegally making construction over the suit road without obtaining necessary permission from the concerned authorities, and obstructing the plaintiffs in using the same. Hence, a cause of action arose for the plaintiff to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit. 5. The summons was served on defendant No.2, despite service of summons, defendant No.2 remained absent and was placed ex-parte before the trial Court. Defendant No.1 filed a written statement. The defendant No.1 denied the entire claim of the plaintiff and contended that defendant No.1 has never encroached upon the alleged disputed road and it is contended that the road in front of the plaintiff’s house is a village road connecting to Alekal road as stated in the written statement and the road connecting Bevinakatte-Gudalu road is not running in front of the plaintiff’s house. It is contended that the defendant is the owner of the property No.15 and the - 5 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 property No.315 situated at Hulikatte wherein, he constructed a house and extended the building attached to the old building having obtained the necessary permission from the competent authority and hence, prays to dismiss the suit. 6. The trial Court, based on the pleadings of the parties, framed the relevant issues. 7. The plaintiff examined himself as PW-1, and examined 3 witnesses as PW-2 to PW-4 and marked 14 documents as Ex.P.1 to ExP.14. In rebuttal, defendant No.1 was examined as DW-1 and marked 3 documents as Ex.D.1 to Ex.D.3. 8. The trial Court, after recording the evidence, hearing on both sides and on assessing the verbal and documentary evidence, decreed the suit of the plaintiff vide judgment dated 03.12.2008. Defendant No.1 aggrieved by the judgment and decree dated 03.12.2008, preferred an appeal in R.A.No.7/2009 on the file of I - 6 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 Additional Senior Civil Judge, Davanagere. The said appeal was allowed vide judgment dated 05.09.2009 and set aside the judgment and decree passed by the trial Court and consequentially dismissed the plaintiff’s suit. The plaintiff, aggrieved by the judgment in R.A.No.7/2009, preferred the regular second appeal in RSA No. 1628/2009. This Court, vide judgment dated 15.02.2012, allowed the second appeal and remanded the matter to the first appellate Court for disposal of the first appeal in accordance with law and the liberty was granted to lead additional evidence to stand by their contention. Pursuant to the judgment, an appeal in R.A.No.7/2009 was tried afresh by the I Additional Senior Civil Judge and the additional evidence was recorded. The plaintiff/respondent No.1 therein was examined as RW-1 and examined three witnesses as RWs-2 to 4 and marked one document as Ex.R.1 before the first appellate Court. 9. The first appellate Court, on reassessing the verbal and documentary evidence, allowed the appeal vide - 7 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 judgment dated 05.11.2012 and set aside the judgment and decree passed in O.S.No.222/1998 and consequently, dismissed the suit of the plaintiff for declaration mandatory and permanent injunction. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.7/2019 dated 05.11.2012, filed this Regular Second Appeal. 10. Heard the arguments of the learned counsel for the plaintiff. 11. Learned counsel for the plaintiff submits that there exists a certain road in the property bearing No.318. The plaintiff has no other road except the suit road. He submits that the plaintiff produced a bunch of documents to establish the existence of such a road. The first appellate Court did not correctly consider the said aspect. He also submits that though, this Court in RSA No.1628/2009 remitted the matter to the first appellate Court, appraising the substantial question of law as to - 8 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 “whether there is non consideration of the Commissioner’s report by the first appellate Court”, even after remanding has not considered the Commissioner report. Hence, on this ground, he prays to allow the appeal. He submits that to substantiate the existence of the road, the plaintiff marked Ex.R.1 before the first appellate Court. The first appellate Court has not considered Ex.R.1. Hence, on these grounds he prays to allow the appeal. 12. Perused the records and considered the submissions of the learned counsel for the plaintiff. 13. The plaintiff has filed a suit for a declaration that there exists a road in Sy.No.318. The said road is the only road to approach the plaintiff’s property. The defendants are trying to encroach upon said road. The plaintiff, to substantiate the case, has not produced any records to show the existence of the road. The defendants denied the existence of said road. The plaintiff filed a suit for a declaration that he has an easementary right to use - 9 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 and enjoy the road. To establish the existence of a suit road, the plaintiff has not produced any survey records. The plaintiff claims that the alleged suit road is a public road the said alleged public road is not shown in the village map. The plaintiff at one stretch claims that the suit road is a public road and at another stretch, claims the right of easement to use and enjoy the same. 14. Further, the sketch of the suit schedule property submitted by the Court Commissioner does not tally with the plaint sketch. However, a Commissioner was appointed, submitted a report and the Court Commissioner was examined as PW-2. Though, PW-2, in examination-in- chief has deposed that the defendants encroached upon the alleged suit road way to the extent of 6’ during the course of cross-examination, it was elicited that he had no documents to affirm the fact that there exists a 10’ width road on the spot, but on the measurement on the spot he has affirmed. The said deposition once again rises a dispute regarding the suit road. - 10 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 15. The plaintiff, except oral evidence, has not produced any records to show the existence of the public road. The suit is one for declaration. The burden is on the plaintiff to establish the existence of said road and substantiate that the plaintiff has been using the said road for more than 10 years over the suit schedule property, under the Easement Act. The plaintiff has not led evidence to show that the plaintiff was using the said public road as the right of prescription. The first appellate Court, considering the entire evidence on record, has rightly held that the plaintiff’s has failed to establish the existence of a suit road and has rightly dismissed the suit of the plaintiffs. 16. Hence, I do not find any error in the impugned judgment or any substantial question of law that arises for consideration in this appeal. 17. Accordingly, I proceed to pass the following: - 11 - HC-KAR NC: 2025:KHC:19462 RSA No. 292 of 2013 ORDER The Appeal is dismissed. The judgment and decree passed in R.A.No.7/2009 is hereby confirmed. No order as to the costs. In view of the dismissal of the appeal, pending I.A.s, if any, do not survive for consideration and accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BVK