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2025 DAILYLAW 19884 (KAR)

SRI U RAMADAS ACHAR v. M/S KIOCL LTD

RP/110/2024 · 2025-03-19

H P Sandesh

Review Petitionbody2025

Judgment text

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- 1 - NC: 2025:KHC:11389 RP No. 110 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REVIEW PETITION NO.110 OF 2024 IN R.S.A.No.2603/2017 BETWEEN: 1. SRI. U. RAMADAS ACHAR, AGED ABOUT 72 YEARS, S/O LATE U.S. ACHAR, R/AT NEAR K.I.O.C.L. COLONY, KAVOOR, KAVOOR-BONDEL CHURCH ROAD, MANGALURU – 575 015. …PETITIONER (BY SRI. NATARAJA BALLAL, ADVOCATE) AND: 1. M/S. KIOCL LTD., II BLOCK, KORAMANGALA, BENGALURU – 560034, REP BY ITS CHAIRMAN. 2. THE ESTATE OFFICER KIOCL LTD., KAVOOR, MANGALURU – 575 015. …RESPONDENTS (BY SRI. Y.K.NARAYANA SHARMA, ADVOCATE) THIS REVIEW PETITION IS FILED UNDER ORDER XLVII R/W SECTION 114 OF THE CPC, PRAYING TO REVIEW THE ORDER DATED 24.08.2023 IN R.S.A.NO.2603/2017. THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11389 RP No. 110 of 2024 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard the learned counsel for the review petitioner and the learned counsel for the respondents. 2. This review petition is filed praying this Court to review the order dated 24.08.2023 passed by this Court in R.S.A.No.2603/2017 urging the ground that in the plaint the boundaries are demarcated showing the survey line as on the date of the suit and on the road widening, the petitioner/plaintiff had access to the said road from his property and therefore the finding of fact of the Courts below was to be accepted and the respondent/defendant could not have found fault with. The other ground urged in the petition is that the plaintiff had also specifically contended in the appeal that after the suit was decreed and the appeal filed by the respondent/defendant had been rejected, it had forcefully erected the barbed fence blocking the access to the road from the suit schedule property. Now the removal of the finding of fact of the Courts below has denied the access to the petitioner/plaintiff despite there being no encroachment of the land of the respondent/defendant. Merely because the petitioner/plaintiff showed that the survey line was the northern side boundary, did not prove that there - 3 - NC: 2025:KHC:11389 RP No. 110 of 2024 was land in between the defendant’s land and of the suit schedule property, more so when the Commissioner report was unchallenged or denied and also when the petitioner/plaintiff had clearly pleaded in the plaint that beyond the survey line there was Kavoor-Bondel road as culled out supra. Hence, the learned counsel contend that in view of this observation with regard to paragraph No.19 of the appeal, the review petitioner cannot enforce the decree and hence it requires interference of this Court. 3. The learned counsel for the review petitioner during the course of argument submits that the observation made by this Court that ‘now the plaintiff cannot contend that there is a road’ has to be removed from the order and it goes against the review petitioner and hence this Court has to review the order regarding the said observation. The learned counsel in support of his argument brought to the notice of this Court the pleading made in the plaint in page No.2 paragraph No.2 that towards the northern side of the schedule property, the Government PWD land is in existence and Kavoor-Bondel road runs therein. In between the said PWD land and the schedule property, there is a compound wall so as to bifurcate the said property. When such pleading is made in paragraph No.2, though boundary on - 4 - NC: 2025:KHC:11389 RP No. 110 of 2024 the northern side shown as survey line, ought not to have made such an observation. 4. Per contra, the learned counsel for the respondents filed the statement of objections to the review petition and contend that there is no dispute between the petitioner and the respondent No.1 that they are owning lands adjoining to each other. There is also no dispute that the northern boundary of the land of the respondent is the Kavoor-Bondel road. It is also not in dispute that the petitioner has got entry to his land from the road on the south and there is a compound wall and gate on the southern side of his property. The land in Sy.No.83/P belongs to respondent No.1 and the same touches the road on the north and the petitioner has no claim over the said land. The land claimed by the petitioner is to the south of the respondent’s land. The petitioner has no entry to the road on the north from his property and he has entry only from the road on the south and he is in fact using the said entry on the south keeping a gate also facing the said road on the south. An attempt was made by the petitioner to have an entry to the road on the north by making untenable claims. The learned counsel contend that an attempt is made to mislead the Court bringing to the Court notice paragraph No.2 of the plaint. The learned - 5 - NC: 2025:KHC:11389 RP No. 110 of 2024 counsel contend that this Court has given the reasoning taking note of the boundary description given on the northern side that there is a survey line and hence comes to the conclusion that the plaintiff cannot contend that there exists road on the north side. The learned counsel contend that there is no error apparent on the face of the record or mistake in the judgment dated 24.08.2023 or any other reasons for reviewing the judgment dated 24.08.2023 and in the absence of any error on the face of the record, the question of reviewing the order does not arise exercising the review jurisdiction. Hence, prayed this Court to dismiss the petition. 5. Having heard the learned counsel for the petitioner and the learned counsel for the respondents, this Court while considering the matter only made an observation with regard to the observation made by the Appellate Court in paragraph No.19 and this Court in paragraph No.8 held that the fact is that he has purchased the property in the year 1987 but though he relies upon the document of the year 1989 there is an encroachment, he has not sought any relief of possession contending that there is an encroachment but the counsel submits that in view of the formation of the road, now the encroached portion has become road and when the defendants - 6 - NC: 2025:KHC:11389 RP No. 110 of 2024 denied the very contention that the same became as road on the northern side, defendants’ claimed that the said property belongs to them on the northern side of the property of the plaintiff Sy.No.83 is in existence. When such being the case, in view of the pleadings and description shown in the plaint are concerned, northern side boundary is survey line and now the plaintiff cannot contend that there is a road. The learned counsel for the petitioner contend that the said observation has to be removed. 6. This Court while considering the R.S.A., particularly taken note of paragraph No.14 of the judgment of the Appellate Court, wherein observation is made that it is clear that Bondel- Kavoor road touches to the plaint schedule property and in between the appellant/defendant have not owned any property and the said observation is erroneous and comes to the conclusion that both the Courts considered the point with regard to cut and removal of the compound and comes to the conclusion that both the parties have proved their possession over their respective properties and granted an order of permanent injunction and perpetual injunction and declined to grant the relief of mandatory injunction and hence this Court comes to the conclusion that I do not find any error in the order - 7 - NC: 2025:KHC:11389 RP No. 110 of 2024 except the observation made by the First Appellate Court in the appeal in paragraph No.19 regarding claim of the road in view of the northern boundary mentioned as survey line. No doubt, the learned counsel for the petitioner brought to the notice of this Court the averment made in paragraph No.2 of the plaint, wherein also it is not specifically pleaded that on the northern side there is a road and even in the boundary description also, it is mentioned on the northern side as survey line and not as road. When such pleading was taken note of by this Court and when there is no error apparent on the face of the record and considered the material on record, the question of exercising the review jurisdiction does not arise and the grounds which have been urged also are not that of error apparent on the record while making such observation and the same has been considered taking note of the pleading as well as the boundary description given by the plaintiff himself as northern side as survey line. Hence, did not accept the contention of the respondent in the R.S.A. that there exists a road and there was no any amendment to that effect also that after the formation of the road on the northern side of the suit schedule property, there was a road. When such being the case, I do not find any - 8 - NC: 2025:KHC:11389 RP No. 110 of 2024 error apparent on record and hence the question of exercising review jurisdiction does not arise. 7. In view of the discussions made above, I pass the following: ORDER The review petition is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 54