G BASAVARAJU vs KATHYAYINI

Court
Karnataka High Court

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 30 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

REGULAR SECOND APPEAL NO. 1033 OF 2014 (INJ)

BETWEEN:


G BASAVARAJU
S/O GANDAPPA
AGED ABOUT 57 YEARS
SHANTHANAHALLI
KASABA HOBLI, TIPTUR TQ
TUMKUR DISTRICT – 577 002.
…APPELLANT
(BY SRI. VINAYA KEERTHY M, ADVOCATE)

AND:

1. KATHYAYINI
W/O SHADAKSHARI
AGED ABOUT 52 YEARS

2. VIJAYA KUMAR
S/O SHADAKSHARI
AGED ABOUT 34 YEARS

3. ASHOK KUMAR
S/O SHADAKSHARI
AGED ABOUT 32 YEARS

ALL ARE R/O SHANTHANAHALLI
KASABA HOBLI, TIPTUR TALUK
TUMAKUR DISTRICT.
…RESPONDENTS
(BY SRI. VIJAYKUMAR, FOR
SRI. B.R. RAGHAVENDRA, ADVOCATES FOR R-3
R-1 & R-2 SERVED)

THIS RSA IS FILED U/S. 100 R/W ORDER 42 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 21.06.2014 PASSED IN R.A.NO.15/2009 ON
THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., TIPTUR, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE











Digitally
signed by
VANDANA S
Location:
High Court
of
Karnataka

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DTD 13.02.2009 PASSED IN OS.NO.93/2007 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE (JR.DN.) & JMFC., TIPTUR.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT
This appeal by the respondent in R.A.No.15/2009 (defendant
in O.S.No.93/2007) filed before the Senior Civil Judge and JMFC,
Tiptur (for short “the First Appellate Court”), whereby the said
appeal filed by the respondent herein (plaintiff) was allowed by the
First Appellate Court vide judgment and decree dated 21.06.2014
by setting aside the judgment and decree dated 13.02.2009 passed
in O.S.No.93/2007 by the Civil Judge (Jr.Dn.) and JMFC, Tiptur (for
short “the Trial Court”), wherein the said suit filed by respondent
herein (plaintiff) was dismissed by the Trial Court.

2. The appellant was the defendant in O.S.No.93/2007
filed by the original plaintiff, viz., Shadakshari, for permanent
injunction and other reliefs in respect of the suit schedule property.
The respondents herein are the wife and children of the original
plaintiff, Shadakshari. The suit schedule property was described as

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land bearing Sy.No.29/5 measuring 2 acres 18 guntas of dry land
situated at Shathanahalli, Kasaba Holbi, Tiptur Taluk, bounded on
the east by the land of Shivaiah, now Kumaraswamy, west by the
land of Siddalingappa and Hulliyappa, north by Land of Basavaraju
(appellant herein) and Thammaiah and south by main road.
According to the plaintiff, he was absolute owner in lawful and
peaceful possession and enjoyment of the suit schedule
immovable property, which was bounded on the south by a
government road which runs between Aralaguppe and
Kondalighatta. It was also contended that to the north of the suit
schedule property, the property of the defendant was situated, who
was using the western portion on the western side of the suit
schedule property to access the main road situated to the south of
the suit schedule property. It was contended that despite using the
road situated to the west of the suit schedule property for the
purpose of access to the main road situated to the south of the suit
schedule property, the appellant-defendant attempted to interfere
with the plaintiff's possession and enjoyment and tried to form a
road in the middle in the middle/centre of the suit schedule
property, as a result of which the respondent-plaintiff instituted the

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aforesaid suit before the Trial Court for permanent injunction and
other reliefs against the appellant-defendant in respect of the suit
schedule property.

3. The appellant-defendant filed his written statement
disputing and denying the various allegations and claim made by
the plaintiff inter alia contending that there was no road situated to
the west of the suit schedule property and instead, there was a
road in existence on the eastern side of the suit schedule property
which was being made use of by the appellant-defendant to access
the main road situated to the south of the suit schedule property. It
was further contended that since the said road situated on the
eastern side of the suit schedule property was a kharab land which
was being used by the appellant-defendant as Right of Way to
access the main road situated to the south of the suit schedule
property and since the plaintiff obstructed the same, the defendant
started using the road situated to the east of the suit schedule
property. The appellant-defendant produced a sketch along with
the written statement depicting the topography of the suit schedule

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property and the disputed pathway and sought for dismissal of the
suit.
4. Based on the aforesaid pleadings following issues
were framed by the Trial Court:
“1. Whether the plaintiff proves that plaintiff is in actual
exclusive possession and enjoyment of the suit schedule
property as on date of filing of the suit?
2. Whether the plaintiff proves that defendant herein is
interfering with the plaintiff’s peaceful and enjoyment of
the suit schedule property as contended in the plaint?
3. Whether the plaintiff is entitled for the relief claimed?
4. What order or decree?”

5. The plaintiff examined himself as PW-1 and got
examined four witnesses as PWs.2 to 5 and got marked
documentary evidence at Exs.P-1 to 9 on his behalf. On the other
hand, the defendant examined himself as DW-1 and got examined
three witnesses as DWs.2 to 4 and got marked documentary
evidence at Exs.D-1 to 19 on his behalf.

6. After hearing the parties, the Trial Court came to the
conclusion that the plaintiff had failed to establish he was entitled to
a decree for permanent injunction by holding as under:

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“
17. As a rebuttal evidence, the defendant and the
witnesses examined on his behalf deposed that since, long
time pathway is situated in the suit land which leads from
Shanthanahalli to Peddehalli. The defendant in support of
oral evidence placed reliance upon Ex.D.1 kharabu nakalu,
Ex.D.11 sketch of Sy. No. 29/5, I have perused the same
which dearly reveals that two cart roads are in existence in
LJNO.29/5 which leads from Shanthanahalli and Eachanuru
village. At this stage, I have gone through the Ex.P.7 which
is the certified copy of village map produced by the plaintiff.
On perusal of the same, it indicates that two cart roads are
in existence in the land Sv. No. 29 of Shanthanahalli vilage.
The Ex. P.6 produced by the plaintiff which indicates that
out of 2 acres and 18 quntas of land 0-04 quntas of land
has been treated as kharab for the purpose of pathway. The
Ex.P.6 and P.7 produced by the plaintiff from his custody,
clearly reveals that the pathway is in existence in land Sy.
No. 29/5. is an admitted fact that at the southern side of the
suit property, the Government property is situated and at
the northern side of suit land, the defendant's land is
situated. From the evidence produced by the parties, the
pathway situated in land Sy. No.29 connects the
Government road situated at the southern side of suit
schedule property.

18. From the perusal of materials produced by the
plaintiff, reveals that prior to filing the instant suit the plaintiff
had filed suit for permanent injunction bearing O.S.No.40/07
against this defendant in the Hon'ble Vacation Court,

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Tumkur, on 02.05.2007 which is evident from Ex.D.13
certified copy of order sheet in said original suit and Ex.D.14
certified copy of plaint in the said suit. The said suit has
been sent to the Regular court and that has been re-
numbered as O.S.No.82/07. The Ex.D.15 produced by the
defendant which is the certified copy of memo filed by the
plaintiff of that suit and prayed for dismissal of said suit as
settled out of court. Accordingly, that suit was dismissed as
settled out of court. Further, it reveals that the present
plaintiff filed this suit in this court on 18.06.2007. The Ex.D.2
notice dated 06.02.2007 issued by Village Accountant,
Kotanayakanahally, Ex.D.12 panchanama prepared by the
surveyor sur who was examined in this case as Dw.4 and
the oral evidence produced by the parties clearly spokes
that prior to filing of this suit by the plaintiff, the defendant
had approached to the revenue authorities and set out his
grievance in respect of road situated in land Sy. No.29 of
Shanthanahalli village. The materials further discloses that
the revenue authorities have been taken their steps to
resolve the disputes among the parties to the suit. It is clear
from the evidence produced by the parties that, the present
plaintiff has filed this suit subsequent to the revenue
proceedings. This shows the intention of the plaintiff that he
has filed the instant suit in order to restrain indirectly the
revenue authorities from exercising their powers. The
photographs produced by the plaintiff and the defendant
which were marked at Ex. P.9 to P.17 and Ex.D.6 to D.10,
apparently they shows that the plaintiff might have got
fenced his land recently in order to grab the pathway

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situated in land Sy. No.29. But, it is surprise to note that the
witnesses examined on behalf of the plaintiff were deposed
that about 20 years back the land of the plaintiff gotq
fenced. The said piece of evidence is unreliable because, I
have already stated that bare perusal of photographs by
necked eyes one can come to conclusion that the suit
property has been recently fenced by erecting stone poles
and with a new barbed wire. Thus, the evidence produced
by the parties to the suit clearly spokes that the plaintiff has
approached to this court by suppressing the material facts.
Therefore, in my opinion the plaintiff is not fair and honest.
The relief sought by him is not based on principle of equity. I
am of the view that law does not protect the property
grabbers. The village map Ex.P.7 produced by the plaintiff
itself shows that the pathways are situated in the land
Sy.No.29. Under the circumstances, plaintiff is not entitled
for the discretionary relief of injunction which is absolutely
meant for administration of justice. The plaintiff has not
made out probable and fit case to grant the relief as he
sought for. The dictum laid down in the top-noted decision is
not applicable to the case on hand as in the present case
on hand, the plaintiff not at all produced any evidence to
show that the Tahsildar, Tiptur has already passed any
order in respect of alleged pathway. I am of the firm opinion
that the plaintiff is not entitled for the discretionary relief of
permanent injunction as I have already held that the plaintiff
has filed this suit by suppressing the facts actually prevail. I
have rejected the entire evidence produced by the plaintiff.

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Accordingly, I proceed to answer issues No.1 to 3 in
Negative.
19. Issue No.4: - For the foregoing findings on issues
No.1 to 3, I proceed to pass the following:
ORDER
The suit filed by the plaintiff is hereby dismissed. No
order as to costs.”

7. Aggrieved by the judgment and decree of the Trial
Court, the respondent-plaintiff preferred an appeal before the First
Appellate Court, which framed the following points for consideration
and set aside the judgment and decree of the Trial Court and
allowed the appeal filed by the respondent-plaintiff and decreed the
suit filed by the respondent-plaintiff by holding as under:

“ 12. Now the following points will arise for my
consideration and determination:-
POINTS
1) Whether the trial Court judgment is not
based on evidence, facts and law?
2) Whether the appellant prove that the
judgment and decree passed by the Trial Court is
capricious?
3) Whether the judgment and decree of the
trial Court requires for interference?
4) What order?

13. My findings on the above said points are as under:-

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Point No.1 - In the Affirmative
Point No.2 - In the Affirmative
Point No.3 - In the Affirmative
Point No.4 - As per final order, for the following:

: REASONS:
14. Point No.1 to 3 :- These points are inter-linked with
each other, hence, I have taken these points together for
discussion to avoid repetition of facts and evidence.
The plaintiff filed the suit in O.S. 93/07 before the trial
court for the relief of permanent injunction to restrain the
defendant or any person on behalf of him from making any
type of loss and damages to the suit property illegally by
removing the fence, forming the road and any other means
which is in exclusive possession of plaintiff. Perused the
pleadings of the both parties and oral and documentary
evidence and also judgment of the trial court. The specific
case of the plaintiff is that, the land bearing Sy.No.29/5
measuring 2-18 guntas dry land situated at shantanahalli,
Kasaba hobli, Tiptur taluk belongs to plaintiff who possessed
the same by virtue of partition had in his family. That the
property has fence and that of bunds. That towards the
southern portion of property there is road which touches
Aralaguppe and that of Kondlighatta i.e. Government road.
Abutting to this main road the suit schedule property is in
existence. The plaintiff had availed several loans and also
making attempt to plant coconut sapless and it is very fertile
land and very near to the village. Further plaintiff taken the
specific contention that, towards northern portion of the

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property stated to be belongs to defendant. The defendant is
making use of path way which is existing western portion of
suit property. That the said access is in existence since
several decades. That from the main road to the defendant
land, the defendant and other persons are making use of the
same. Further plaintiff contended that, the defendant tried to
making road in the suit schedule property towards eastern
side by forcefully.
15. The defendant specifically denying the fact that, the
defendant admitted the ownership of the plaintiff over the suit
schedule property. In the suit schedule property measuring 2-
18 guntas, 0-04 guntas of kharab exclusively for the purpose
of path way in the middle portion of the suit land. The
defendant and others owned the properties towards north of
the suit land. From the beginning defendant and other
persons uses the said path way. The plaintiff had requested
the defendant and others to gain access in the suit schedule
property. In the eastern side in order to avoid the division of
suit property into the portion by the kharab used in the middle
of the suit property for which the defendant an others have
consulted for the plaintiffs request. The plaintiff himself in the
moth of January 2007 had attempted to obstruct the
defendant from passing in the schedule property in eastern
side path way and also defendant furnished the rough sketch
along with his written statement.
16. The pw1 plaintiff denying the fact that, existence of
path way in his land as stated by the defendant, but he
admitted as per his pleadings there is a pathway is existed in

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the western portion of his land which runs south to north.
There is no path way existed in the eastern portion of the suit
land as stated by the defendant and he admitted the fact that,
he obstructed to made road or path way towards the eastern
side of his land. In support of his evidence he also examined
the pw2 to 5 witnesses, they are also deposed that in their
evidence there is no path way exist towards the eastern side
of the suit property as stated by the defendant Dw1.
17. On perusing the Ex.pl RTC. As per the said RTC
the land in Sy.No.29/5 measuring 5-00 acre in total. In the
said 5-00 acre 0-04 guntas shown as kharab and also as per
the column No.9 of the said RTC one the plaintiff having 2-18
guntas land and H. Siddalingaiah and Huliyappa having 2-18
guntas. The plaintiff himself admitted that out of 2-18 guntas
which belongs to him the 0-04 guntas left for kharab. In
respect of the ownership, there is no dispute between the
parties.
18. As per the Ex.p5 the sketch issued by the village
accountant regarding the boundary of the suit schedule
'property: As per the said sketch towards the eastern side, the
land of one Kumaraswamy is there, towards the west, land of
Siddalingaiah and towards the north, the land of defendant
i.e. Basavaraju, towards the south, a public road is there. As
per the Dagpleadings of the plaintiff there is a pathway is exist
in the western portion of the suit land to reach the defendant
land which is situated in the northern side of the suit land. But,
defendant claiming that, the said pathway is run in the middle
of the suit land, for the convenience the plaintiff himself left

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the said pathway towards the eastern side. But, now he
resisted the defendant to make use of the said pathway,
which is existed towards the eastern side. As per the Ex.p6
the revenue document issued by the Tahsildar regarding the
kharab land in Sy.No.29/5, 0-04 guntas land left for the cart
way and footpath in the said Sy.No. But in the said document
not clearly discloses whether the said phot kharab include the
land belongs to the plaintiff or Siddalingaiah one who having
the land in the same Sy.No. towards the western side of the
plaintiff land. The plaintiff also produced the Ex.p7 the village
map of Shanthanahalli, Tiptur taluk. As per the said village
map the land in Sy.No.29, the two cart way passed. One
towards the Peddihalli, another road commence from the
Eachanur and join the said Peddihalli road. The said road
passed in the western portion of the said entire land in
Sy.No.29 and run towards the northern eastern side. As per
the said map there is no pathway existed in the said Sy.No.
and also there is no footpath existed towards the eastern side
of the said Sy.No. The plaintiff also produced photographs
Ex.p9 to 17. The said photographs shows that, there is a tar
road existed towards southern side of the suit land and also
installing the stone pillar around the plaintiff land. And one
Kumaraswamy who having the land towards the eastern side
of the plaintiff land fixing the barbed fence for his land. The
plaintiff admitted in his pleading itself he has not restrain the
defendant to make use of the footpath which is existed
towards the western portion of his land to reach the defendant
land from south to north.

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19. The defendants also examined themselves as Dwl
and other witnesses examined as Dw2 to 4. They have also
deposed in their evidence that, they claim the road towards
the eastern side of the suit land, but regarding the existence
of the footpath towards the eastern side of the plaintiff land
there is no documents. As per their evidence even Tahsildar
and Surveyor not attend to clear the road as shown in the
revenue sketch issued by them, which is existed towards the
western side and run towards the northern side. The claim of
the plaintiff is also clear that, he prayed for restrain the
defendant, his men and his representatives not to form the
road illegally and forcefully by damaging the property of the
plaintiff and by making loss to the plaintiff. Plaintiff not filed
the suit to restrain the defendant, his men and representatives
to make use of the footpath to reach their land through the
footpath existed in the western portion of the suit land is runs
south to north and admittedly the land of defendant is existed
in the northern side of the plaintiff land. The Dw4 the Taluk
ė
Surveyor also depos d in his evidence that there is a foot
path existed in the land in Sy No.29/5 runs from south to east
and one cart way is ako existed which runs from western side
to northern side. Further, he deposed that, there is a cart way
run in the said Sy.No. north to south. Further he deposed in
his cross-examination that, towards the southern side of the
suit land there is a main road is existed and also he admitted
the fact that, there is a kharab left for the footpath in the suit
schedule property which runs from western side to the
northern side. And also he says that at the time of he visiting

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the spot he has not issued the notice to the adjacent land
owner and also plaintiff and also not measured the property.
20. The defendant produced Ex.D1 the document
issued by the Tahsildar regarding the existence of kharab
land, left for footpath in the Sy.No.29/5. As per the said
document land in Sy.No.29/5 there is a 0-04 guntas kharab is
left for cart track and footpath. Moreover, in the land in
Sy.No.29/4, A1 and B1 0-01 gunta each left for footpath.
Ex.D2 is notice issued by the village accountant to the
defendant regarding enquiry of the footpath. Ex.D3 is the RTC
of land in Sy.No.29/5 .i.e. not disputed by the plaintiff and
Ex.D4 is the RTC in respect of Sy.No.29/4B1, Ex.D5 RTC in
respect of 29/4A1, which are not disputed by the plaintiff
Defendant produced the photographs Ex.D6 to D10. The said
photographs also not disclose the existence of footpath
towards the eastern side of the plaintiff land, as stated by the
defendant. The land of the plaintiff is uncultivated land. The
defendant also produced Ex.D11 the atlas copy in respect of
the Sy.No.29/5. As per the said sketch issued by the
Tahsildar, Tiptur, the cart track runs in the land in Sy.No.29/5
towards the western side. They admittedly the said land in
Sy.No.29/5 divided as two portion i.e. 2-18 guntas belongs to
the plantiff and 2-18 guntas belongs to the Siddalingappa and
Huliyappa. As per the said sketch the said cart track runs
from Shanthanahalli to Peddihalli and Eachanur. Said road
not run or pass through the land of plaintiff. As per the said
sketch the footpath run from Eachanur to Kodlighatta, which
runs towards the western portion of the suit land from south

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west corner to north side. As per the said document also
there is no footpath existed towards the eastern side of the
plantiff land, as stated by the defendant. Ex.D18 the atlas
sketch also discloses the same thing. Even though that the
defendant claiming the road towards the eastern side of the
plaintiff land. Hence, it is clear that, the defendants interfere
with the peaceful possession and enjoyment of the plaintiff
property and tried to make use of the road illegally in the
eastern portion of the suit land. Even though there is a
footpath existed towards the western side of the plantiff land
as admitted by him and plaintiff himself pleaded that, he has
not made any obstruction to the defendant to make use of the
said road. Also the Tahsildar is below the rank of Deputy
Commissioner, not having the right to ordered to form the new
road in the eastern side of the plaintiff land, as per the
provision stated by the plaintiff side ie. Sec. 67 of the Land
Revenue Act and also the plaintiff stated the citations
reported in 1978 of KLJ page 434 of Hon'ble High Court of
Karnataka held that.
“Held the Tahsildar or the Taluka Magistrate
has no jurisdiction and power to pass the order.
Sub-sec(2) of Sec.67 of the 1964 Act, in express
terms, confers the power only on the Deputy Commr
or a Survey Officer not lower in rank than a Deputy
Commissioner. Further the Tahsildar/Taluka
Magistrate should ;not have passed any order so as
to affect the rights of the parties that are being
agitated in the civil suit”
In another decision reported in 2002 (2) KLJ Page 241 which
reads as under:

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“Tahsildar, not accepting claim, passing
eviction order for removal of obstruction to cart-
track passing through disputed land and used by
public-Where person in possession of land has
admitted existence of cart-track and its use by
public, he is liable to be evicted-However, it would
be appropriate that fresh order of eviction is passed
by Competent authority after surveying disputed
land and fixing its boundaries".

Hence in this case the Tahsildar not having right to order to
form the road in the eastern side of the plaintiff property. Only
order to clear the obstruction to make use of the road or
footpath existed as per the atlas sketch copy produced by the
defendant. But plaintiff himself admitted that, there is a
footpath existed in the western portion of his land for the
movement of the defendant and others to reach their land and
also he has not made any interference or disturb to defendant
or any others regarding use of said footpath. These are all
facts not considered by the lower court at the time of giving
findings and also giving answers to issue framed by the trial
court. The trial court without perusing the pleadings of the
plaintiff and defendant and the material document, only
considering the behaviors of the plaintiff and his attitude i.e.
immaterial. The defendant also failed to existence of the
footpath towards the eastern side of the plaintiff land to reach
his land. As per records available before this court and trial
court, there is a footpath existed which runs in the western
portion of the plaintiff land towards the northern side from
south. Hence, the evidence of the defendant and his written
statement itself shows that, he interfere with. the possession

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of the plaintiff over the suit schedule property and trying to
make the road by damaging and cause loss to the plaintiff
property in the eastern portion of the plaintiff land. Hence it is
just and proper to restrain the defendant, his men and any
persons on behalf of him from making any type of loss and
damage to the suit property legally by putting the fence,
forming road and any other means which is exclusively
possession of he plaintiff. It is not the case of the plaintiff that,
restrain the defendant and any persons on behalf of him to
form the road and any other means legally. He only prayed for
restraining the defendant from doing the illegal act by causing
damage to the plaintiff property and also there is no prayer to
restrain the movement of the defendant to reach the land of
the defendant by passing over the plaintiff land. Plaintiff
clearly stated in its pleading itself the defendant is making use
of the pathway which is existing in western portion of the suit
property that the said access in existence since several
decades that from the main road to the defendant land the
same pathway is existing and defendant and other persons
are use the same. These are all not observed by the trial
court. Hence, this court just and proper to interfere with the
judgment and decree passed by the trial court. If the suit is
not decreed in favour of the plaintiff the legal injury cause to
the plaintiff. Thereby the plaintiff made out the ground to allow
the appeal. Hence, I answered point No.1 to 3 in the
affirmative.
21. Point No. 4 :- In view of the findings given on point
No.1 to 3 above, I proceed to pass the following:-


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ORDER
The regular appeal filed by the appellant is allowed.
The Judgment and decree passed by the Trial Court in
O.S.93/2007 dated:13-2-2009 is set aside and suit of the
plaintiff is decreed and thereby restrain the defendant or
any persons on behalf of him from making any type of
loss and damage to the suit property illegally by
removing the fence, forming the road and any other
means which is exclusive possession of the plaintiff.
Under the circumstances of the case there is no
order as to cost.
Draw decree accordingly.”


8. This Court admitted the appeal on 13.08.2014 to
consider the following substantial question of law:
“In a suit instituted by the respondent for injunction, when the
Trial Court dismissed the suit on appreciation of the evidence
on record, whether the First Appellate Court was justified in
reversing the judgment and decree and in doing so, did not
assign appropriate reasons to overcome the findings of Trial
Court and thereby committed an illegality in passing the
impugned judgment and decree?”

9. Heard learned counsel for the appellant and learned
counsel for respondent No.3 and perused the material on record.
Though respondent Nos.1 and 2 were served, they remained
absent and did not chose to contest the appeal before this Court.

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Re. Substantial Question of Law:

10. A perusal of the impugned judgment and decree of the
First Appellate Court will indicate that the First Appellate Court Has
recorded a finding that there was no dispute regarding ownership
of the plaintiff over 2 acres 18 guntas of land in the suit schedule
property. The First Appellate Court also took into account the
sketch at Ex.P-5, revenue documents at Exs.P-5, 6 and 7 and the
photographs at Exs.P-9 to 17 in order to come to the conclusion
that there was a pathway on the western side of the suit schedule
property, which would connect the property of the defendant on the
northern side to the main road on the southern side.

11. The First Appellate Court also came to the conclusion
that the evidence on record disclosed that there was a pathway on
the western side of the suit schedule property and that the
appellant had not produced any legal or acceptable evidence to
establish that there was a pathway on the eastern side of the suit
schedule property. The First Appellate Court also adopted an
equitable approach by coming to the conclusion that even
according to the plaintiff himself, the defendant's property was

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situated to the north of the suit schedule property and that the
defendant was entitled to use the pathway situated on the western
side of the suit schedule property for the purpose of access to his
property from the main road situated to the south of the suit
schedule property.

12. A perusal of the impugned judgment and decree
passed by the Trial Court will clearly indicate that the trial Court
had not properly considered and appreciated the pleadings and
evidence of the parties and failed to notice that the pathway on the
western side of the suit schedule property was in existence from
several decades and the same would be used by the appellant-
defendant to access his property to the north of the suit schedule
property and no prejudice would be caused to the appellant-
defendant if he is permitted to use the said pathway situated to the
west of the suit schedule property.

13. The substantial question of law formulated above is
accordingly answered by holding that the First Appellate Court was
fully justified in setting aside the judgment and decree passed by
the Trial Court, which had overlooked material evidence and failed

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to consider the evidence on record, which clearly established that
there existed a pathway situated to the west of the suit schedule
property and consequently, since no prejudice would be caused to
the appellant-plaintiff by decreeing the suit and by permitting the
appellant to use the pathway on the western side of the suit
schedule property.

14. Under these circumstances, I answer the substantial
question of law against the appellant and consequently, I do not
find any merit in the appeal and the same is hereby dismissed .

Sd/-
(S.R.KRISHNA KUMAR)
JUDGE


BMC
List No.: 1 Sl No.: 46