- 1 - NC: 2025:KHC-D:4945 RSA No. 2921 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 2921 OF 2007 (-) BETWEEN: 1. SRI. NARASIMHA GOPAL BHAT, S/O. LATE SRI. GOPAL NARASIMHA BHAT, AGED ABOUT 44 YEARS, R/O. ARASAPUR, SIRSI TALUKA-581 402. 2. SRI. SRIDHAR GOPAL BHAT, S/O. LATE SRI. GOPAL NARASIMHA BHAT, AGED ABOUT 42 YEARS, R/O. ARASAPUR, SIRSI TALUKA-581 402. BY ITS G.P.A. HOLDER, SIR. NARASIMHA GOPAL BHAT, S/O. LATE GOPAL NARSIMHA BHAT. …APPELLANTS (BY SRI. C.S. SHETTAR, ADVOCATE FOR SRI. HARSH DESAI, ADVOCATE) AND: 1. THE SECRETARY, BAIRUMBE GRAM PANCHAYAT, SIRSI TALUK-581405. 2. DEPUTY COMMISSIONER, UTTAR KANNADA, KARWAR-581301. 3. ASSISTANT EXECUTIVE ENGINEER, ZILLA PANCHAYAT, SIRSI DIVISION, SIRSI-581401. 4. JUNIOR ENGINEER, ZILLA PANCHAYATH, SIRSI DIVISION, SIRSI-581401. …RESPONDENTS (BY SRI. VIJAY MALALI, ADVOCATE FOR R1; SRI. JAIRAM SIDDI, HCGP FOR R2-R4) Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 15:55:20 +0530 - 2 - NC: 2025:KHC-D:4945 RSA No. 2921 of 2007 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.09.2007 PASSED BY THE COURT OF CIVIL JUDGE (SR.DN.) SIRSI IN R.A.NO.79/2001 AND ALLOW THE ABOVE APPEAL WITH COSTS CONFIRMING THE JUDGMENT AND DECREE DATED 29.09.2001 IN O.S.NO.47/95 ON THE COURT OF THE PRL. CIVIL JUDGE (JR.DN.) SIRSI, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the plaintiff assailing the Judgment and decree dated 29.09.2007 in R.A.No.79/2001, on the file of Civil Judge (Sr.Dn.), Sirsi, allowing the appeal and setting aside the Judgment and decree dated 29.09.2001 in O.S.No.47/1995, on the file of Civil Judge (Jr.Dn.), Sirsi, decreeing the suit of the plaintiff. 2. For the sake of convenience, parties are referred with reference to their rank before the Trial Court. 3. It is the case of the plaintiff that plaintiff is the owner of the suit schedule property and there is no public road situate in - 3 - NC: 2025:KHC-D:4945 RSA No. 2921 of 2007 the suit schedule property. Hence, the case of the plaintiff in O.S.No.47/1995 is that the defendants without initiating acquisition proceedings in respect of suit schedule property, are trying to form road from Arasapur to Belale Harijana Colony and therefore, plaintiff has filed suit seeking relief of declaration with consequential relief of permanent injunction. 4. Upon service of notice, defendants entered appearance and denied the averments made in the plaint. Defendant No.4 has filed separate written statement admitting the ownership of the suit schedule property with the plaintiff, however, stated that there is a road being utilized by the public from time immemorial to reach Belale Harijana Colony from Arasapur village and therefore sought for dismissal of the suit. 5. The trial court based on the pleadings on record, formulated issues for its consideration. In order to establish his case, plaintiff examined two witnesses as P.W.1 and P.W.2 and produced nine documents which were marked as Exs.P1 to P9. Defendants examined two witnesses as D.W.1 and D.W.2 and produced four documents which were got marked as Exs.D1 to D4(a). The trial court after considering the material on record, - 4 - NC: 2025:KHC-D:4945 RSA No. 2921 of 2007 by its Judgment and decree dated 29.09.2001, decreed the suit and being aggrieved by the same, the defendant No.4 has preferred R.A.No.79/2001 before the First Appellate Court. The said appeal was resisted by the plaintiff and the Government. The First Appellate Court after considering the material on record, by its Judgment and decree dated 29.09.2007, allowed the appeal and set aside the Judgment and decree in O.S.No.47/1995. Being aggrieved by the same, the plaintiff has preferred this appeal. 6. This Court, vide order dated 29.11.2007, formulated the following substantial questions of law: “ 1. Whether the learned appellate Judge was justified in reversing the judgment and decree of the learned trial Judge without considering the evidence on record? 2. Whether the judgment and decree of the learned appellate Judge is vitiated for non-suiting the plaintiff on the ground that the property of the plaintiff can be made use of for formation of road without having recourse to acquisition proceedings?” - 5 - NC: 2025:KHC-D:4945 RSA No. 2921 of 2007 7. I have heard Sri. C.S. Shettar, learned counsel on behalf of Sri. Harsh Desai, learned counsel for the appellants and Sri. Vijay Malali, learned counsel for respondent No.1, so also Sri. Jairam Siddi, learned High Court Government Pleader appearing for respondent Nos.2 to 4. 8. It is contended by the learned counsel for the appellants that the First Appellate Court committed an error in interfering with the finding recorded by the trial court and allowing defendant No.4 to form road in the suit land without initiating acquisition proceedings and accordingly sought for interference of this Court. 9. Per contra, learned counsel appearing for the respondents sought to justify the impugned Judgment and decree passed by the Courts below. 10. In the light of the submissions made by the learned counsel for the parties, I have carefully examined the finding recorded by both the Courts below and perused the records. It is also forthcoming from the record that, this Court vide order dated 16.02.2024, while considering the application under - 6 - NC: 2025:KHC-D:4945 RSA No. 2921 of 2007 Order 41 Rule 27 of CPC, remitted the matter to the trial court to record further evidence on the following aspects: “ (i) Whether there is any kharab land existing in Sy.No.32/1 which is classified as a pathway? If yes, what is the extent of such kharab? (ii) Whether there is any pathway running through Sy.No.55/1? If yes, what is the extent?” 11. Pursuant to the order passed by this Court, report is also filed before this Court, wherein it is stated that there is no road lying in the suit schedule property. In that view of the matter, taking into consideration the Judgment of the Hon’ble Apex Court in the case of VIDYA DEVI Vs. THE STATE OF HIMACHAL PRADESH AND ORS. reported in AIR 2020 SC 4709, I am of the view that statutory bodies in order to acquire the land for the purpose of public road, have to initiate acquisition proceedings in a manner known to law. The trial court has rightly dealt with the suit, however, the First Appellate Court has committed an error in interfering with the finding recorded by the trial court erroneously and therefore, I - 7 - NC: 2025:KHC-D:4945 RSA No. 2921 of 2007 find force in the submission made by the learned counsel for the appellant. 12. Accordingly the substantial questions of law referred to above, favours the plaintiff and therefore, I pass the following: ORDER (i) The Regular Second Appeal is allowed. (ii) The Judgment and decree dated 29.09.2007 in R.A.No.79/2001, on the file of Civil Judge (Sr.Dn.), Sirsi, is hereby set aside. (iii) The Judgment and decree dated 29.09.2001 in O.S.No.47/1995, on the file of Civil Judge (Jr.Dn.), Sirsi, is hereby confirmed. (iv) The suit of the plaintiff is decreed. Sd/- (E.S.INDIRESH) JUDGE sac CT-MCK List No.: 1 Sl No.: 31