Judgment:
(Prayer: This Rsa Is Filed U/S 100 Of Cpc, Against The Judgement and Decree Dtd:21.8.2009 Passed In R.A.No.61/2009 On The File The Iii Addl. Civil Judge (Sr.Dn) Kolar, Dismissing The Appeal Filed Against The Judgement And Decree Dtd:20.2.2009 Passed In O.S.No.365/2004 On The File Of The Prl. Civil Judge (Jr.Dn) Kolar.)
1. This appeal is by the plaintiffs against the concurrent findings of fact dismissing the suit for injunction by the trial Court and the Lower Appellate Court.
2. Appellants instituted O.S.365/2004 before the Prl.Civil Judge (Jr.Dn), Kolar on 23.9.2004 to restrain respondents arraigned as defendants 1 and 2, respectively, from interfering with the enjoyment of 'A' and 'B' schedule property viz., right of way over the road demarcated with alphabets ABCD in the Sketch appended. The plaint averments are that the plaintiffs are the absolute owners, in possession and enjoyment of the house property described in 'A' schedule, engaged in agriculture and vending flowers to eke out their livelihood and that their house is situated on the northern end of the road leading to Padiganahalli road which passes between the house of defendants and the open site of one Pangappa. According to the plaintiffs the width of the road is 7 feet and is in existence from time immemorial, recognized by the panchayat and mentioned in the Assessment Demand Register. But for that road, it is claimed, there is no other road for ingress and egress to and from the plaintiffs' house to reach the main road. It is the allegation of the plaintiff that during March 1993 trouble having arisen between the late husband of the 1st plaintiff and defendant and his brother viz,, regarding use of the road for movement, of bullock carts and cattle, which was sought to be prohibited by erecting a building, a panchayat was held and settlement arrived at, which was reduced into writing on 26.3.1993, though captioned as "sale agreement" while it was a settlement. The width of the road, it was asserted is 7 to 3 feet and its length 78' while on the western side of the road is the house and site property of the defendant as well as that of one Pangappa of Kyalanoor. The road described in 'B' schedule property, it is said, is used by the public of the village. The cause of action for the Suit is said to have arisen when the defendants tried to put up construction thereon.
3. The suit was resisted by filing written statement of the defendants denying the plaint assertions and contended that there exist no road while 'B' schedule property described as road and demarcated with the alphabets 'ABCD' in the rough sketch, in fact, is the property belonging to the defendants bearing old No.638/61-62 measuring East to West 25 yards and North to South 21 yards. 1st defendant asserted that in a partition dated 24.1.1971 the eastern portion measuring 6x21 yards fell to his share on which he put up a construction apart from a old house, by leaving 7 feet front yard. It is the allegation of the defendant that the front open yard is sought to be termed as road by the plaintiff.
4. The trial court having regard to the pleadings of the parties, framed the following issues:
" 1. Whether the plaintiffs prove that there exists the 'B' schedule property and the same is a road as contended by them ?
2. whether the plaintiffs prove the alleged interference of the defendants ?
3. Whether the plaintiffs are entitled for relief as prayed for ?
4. What decree or order ?"
5. The 1st plaintiff was examined as PW-1 and two other witnesses as PWs 2 and 3 and marked Exs.Pl to 12, while the 1st defendant was examined as DW-1 and another witness as DW-2 and marked one document as Ex.D1.
6. The trial Court considered the material on record, the pleadings and the evidence, both oral and documentary and observed that Ex.P1 and P3 being Assessment Demand Register extracts for the years 1989 through to 2003-04, is in respect of plaintiffs' house property wherein the northern boundary is mentioned as Batheppa, while in the 'A' schedule property the northern boundary is mentioned as 'B' schedule property i.e. road. Though Exs.Pl and P3 mention that there is 7 feet 'daari', nevertheless this entry in the panchayat record is not established by examining the author of Ex.P1 and P3 and the person who effected the said entry.
If the plaintiffs placed before court the Assessment Demand Register extract of the defendants' property disclosing that on the southern boundary of the defendants' property there was a road of 7 feet width, perhaps plaintiff could have made out a case. The trial Court further noticed that Ex.P12 the "sale agreement" though pressed into service by the plaintiffs to establish a "settlement" before the panchayat, between the parties over the existence of a 'daari',. neverthless was not confronted to either DW-1 or DW-2. In addition, the trial Court noticed that since Ex.P12 seeks to create and declare right, title and interest in the road, regard being had to Section 17(1-(5) r/w 49 of the Registration Act, 1908 was compulscrily registerable. In the cross- examination of PW-1 it was elicited that the road which the plaintiffs claim is situated in the defendants property, while PW-3 in cross-examination admits that in front if the house of the defendant there exists a vacant plot measuring 78 x 7 feet. In the oral testimony of DW-1 nothing incriminating is established in the cross-examination over the existence of 7 feet 'daari' in front of his house. In the cross-examination of DW-2, it is suggested that the plaint schedule 'B' property is in the land belonging to the defendants.
7. In the circumstances, the trial court answered the issues in the negative and dismissed the suit with costs by Judgment and decree dated 20.2.2009.
8. The Lower Appellate Court dismissed RA 61/2009 by Judgment and decree dt. 21.8.2009 having re-appreciated the material on record to concur with the reasons, findings and conclusions arrived at by the trial Court.
9. This appeal when admitted on 11.2.2010, the following substantial question of law was framed:
" Whether the Courts below were justified in negating the settlement arrived, at the behest of pancbayathdars, if an agreement to refer disputes to an independent person for adjudication, could be construed as an arbitration clause, without reference to the Arbitration Act cannot the settlement be accepted in law ?"
10. Learned counsel for the appellants submits that defendants having failed to place relevant material constituting substantial legal evidence of the fact that they were the owners of the 'B' schedule immovable property, the Courts below recorded perverse findings that there was no road in existence.
11. Per contra, learned counsel for the respondents reiterates the reasons, findings and conclusions recorded by the courts below and seeks to sustain the same as being well merited, fully justified and not calling for interference.
12. Plaintiffs having sought to make out a case of existence of 7 feet width 'daari' in front of the defendants property, however, in their oral testimony admitted that the 7 feet width vacant land was a part and parcel of the defendants' property, as extracted in paragraph 17 of the Judgment of the trial Court. Plaintiff also sought to prove the existence of the road on the basis of Ex.P12, which as rightly pointed out in paragraph 16 of the Judgment of the trial Court, was not confronted to the defendants witnesses though it was asserted that it contained the signatures of the defendants. In addition Ex.P12 having created right, title and interest over the existence of a road in favour of the plaintiffs, required compulsory registration in the light of Sec. 17(1) (5) r/w Sec.49 of the Registration Act, 1908 which, when not done was inadmissible in evidence. So also the entries in Exs.Pl and P3 Assessment Demand Register extract that there exists a 'daari7 was not established by examining the author of Exs.Pl and P3 muchless officers of the village panchayat.
13. In the circumstances, the substantial question of law is answered in the negative. The appeal devoid of merit is dismissed.