- 1 - HC-KAR NC: 2025:KHC:40838 RSA No. 1447 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1447 OF 2024 (DEC/INJ) BETWEEN: 1. SRI. NANJEGOWDA, S/O. THIMMARAYAGOWDA, AGED ABOUT 80 YEARS, R/AT DABBEGHATTA VILLAGE, DABBEGHATTA HOBLI, TURUVEKERE TALUK, TUMAKURU DISTRICT-572 227. …APPELLANT (BY SRI. RAMESH K.R., ADVOCATE) AND: 1. SRI. T.B. LAKSHMANAGOWDA, S/O. LATE BOREGOWDA, AGED ABOUT 75 YEARS, R/AT NO.1268/1, 2ND MAIN ROAD, KHB COLONY, TIPTUR TOWN, TIPTUR, TUMAKURU DISTRICT-572 201. …RESPONDENT (BY SRI. N. JAGADISH, ADVOCATE FOR C/R) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.06.2024 PASSED IN R.A.NO.31/2022 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT TURUVEKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40838 RSA No. 1447 of 2024 20.01.2020 PASSED IN O.S.NO.349/2018 ON THE FILE OF CIVIL JUDGE AND JMFC AT TURUVEKERE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellant. 2. This second appeal is filed against the judgment of the Trial Court granting easementary right in favour of the plaintiff and the same is confirmed by the First Appellate Court. 3. The factual matrix of the case of the plaintiff in O.S.No.349/2018 while seeking the relief of easementary right, it is specifically pleaded that in between the house and coconut shed, 40 feet vacant space and after the shed upto the property of the plaintiff, the defendant is having cultivable land. Since, from the time of his father, the plaintiff is passing through the property of the defendant in the northern side to reach his land and the same has been used as pathway which runs east to west, which is the suit schedule property. There is a PWD road towards west of the defendant property which runs - 3 - HC-KAR NC: 2025:KHC:40838 RSA No. 1447 of 2024 north-south from Dabbeghatt to Kadaballi. The said ABCD pathway is shown in the plaint rough sketch. Since from the time of the plaintiff’s and the defendant’s father, the same has been used by the plaintiff without any interruption, openly hostilely, feasibly more than 25 years to the knowledge of the defendant and other adjacent owners of the lands. The plaintiff gain access to his property which is situated towards east of the defendant property from the said PWD road through the property of the defendant ABCD pathway as shown in the plaint rough sketch. Except the said pathway, there is no other alternative road to reach his property. The said road is absolute necessity for the plaintiff for enjoyment of his property. The plaintiff has acquired ABCD pathway by way of prescriptive right and also by way of easement of necessity. Now the defendant is trying to obstruct the using of said pathway and hence filed the suit. 4. In the suit, summons was issued to the defendant and the defendant appeared through his counsel, but did not file any written statement to contest the case. Hence, the plaintiff examined himself as P.W.1 and got marked the documents at Exs.P.1 to 4 and also examined one witness as - 4 - HC-KAR NC: 2025:KHC:40838 RSA No. 1447 of 2024 P.W.2. The Trial Court having considered the pleadings of the plaintiff, formulated the points whether the plaintiff proves that there is existence of ABCD pathway as per plaint rough sketch and the same is used by the plaintiff to reach his property and whether the defendant is interfering. Having considered both oral and documentary evidence placed on record, particularly RTC extracts as well as oral evidence of P.W.1 and P.W.2, the Trial Court comes to the conclusion that there is no any other alternative way to reach the property of the plaintiff. In paragraph No.10 in detail discussed the same and also taken note of the plaint rough sketch, which clearly mentioned that towards northern side of the defendant property he has shown the road to his property. On the other hand, though the defendant appeared through his counsel, but he did not file any written statement to contest the matter. Hence, it is clear that the defendant had the knowledge of filing of the suit and did not object for the pathway of ABCD, which is shown in the rough sketch and hence the Trial Court granted the relief. 5. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed in 2022, though the judgment - 5 - HC-KAR NC: 2025:KHC:40838 RSA No. 1447 of 2024 of the Trial Court was passed in 2020 itself. Though there was a delay, the First Appellate Court taken note of the delay aspect as well as merits of the case by framing points for consideration in respect of delay i.e., point No.1 and with regard to the sketch and reasoning of the Trial Court, point No.2 and point No.3 whether it requires interference of the Court. The First Appellate Court having considered the delay aspect is concerned, in paragraph No.18, taken note of that the judgment of the Trial Court was passed on 20.01.2020 and also taken note of that though it is pleaded that immediately after the judgment of the Trial Court was passed, Covid period was prevailing, but Covid lockdown was lifted in the year 2021 and appeal is filed in 2022 and hence comes to the conclusion while answering point No.1 that delay has not been properly explained. Though the document was placed before the Court with regard to the health condition is concerned i.e., Ex.A.2, the same is of the year 2023, but the appeal was instituted in the year 2022 and hence did not accept the same. The First Appellate Court also taken note of the pleadings of the plaintiff with regard to existence of ABCD pathway, which is shown in the rough sketch and also taken note of when the defendant - 6 - HC-KAR NC: 2025:KHC:40838 RSA No. 1447 of 2024 has not contested the suit by filing his written statement and the fact that suit was filed in 2018 and the same was disposed of in 2020, the same is not resisted. 6. The learned counsel for the appellant would vehemently contend that an opportunity may be given. The question of giving of an opportunity on the whims and fancies of the appellant does not arise. When he was having sufficient time and when the summons was served and when he was represented through counsel, he did not file any written statement and not contested the matter and even the appeal was filed in 2022 after the institution of suit in the year 2018 after 4 years. The pleadings of the plaintiff remained unchallenged and the same is considered by the First Appellate Court when the argument was addressed with regard to point Nos.2 and 3 in paragraph No.35 of the First Appellate Court judgment. The appellant did not challenge the pleadings of the plaintiff with regard to the existence of pathway i.e., ABCD road, which leads to the property of the plaintiff and the rough sketch clearly discloses that the property of the defendant is abutting the property of PWD road. In order to access the - 7 - HC-KAR NC: 2025:KHC:40838 RSA No. 1447 of 2024 property of the plaintiff, only the pathway ABCD is the easementary right to go to the property of the plaintiff. When such being the case, I do not find any force in the contention of the learned counsel for the appellant and nothing is placed on record before this Court as well as the First Appellate Court to substantiate the contention of the appellant that the plaintiff is having an alternative access to ingress and egress the property of the plaintiff. When such being the case, I do not find any ground to admit the second appeal and frame any substantial question of law. 7. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 39