Karnataka High Court
Mr Albert Rodrigues vs Mr Valerian Rodrigues on 1 March, 2024
-1-
NC: 2024:KHC:8835
RSA No. 279 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.279 OF 2013 (DEC/INJ)
BETWEEN:
1. MR. ALBERT RODRIGUES,
S/O P.F. RODRIGUES,
AGED ABOUT 43 YEARS,
2. MR. GETRUE RODRIGUES,
SINCE DEAD BY LRS,
2(A). JOHN RODRIGUES,
S/O P.F. RODRIGUES,
AGED ABOUT 47 YEARS,
R/AT: 2-6-1395, DR. C. MATHIAS ROAD,
R/A DR. C. MATHIAS ROAD,
BEJAI, MANGALORE - 575 004
...APPELLANTS
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)
Digitally signed AND:
by R DEEPA
Location: HIGH 1. MR. VALERIAN RODRIGUES,
COURT OF SINCE DEAD BY LRS,
KARNATAKA
1(A) STELLA RODRIGUES,
W/O LATE VALERIAN RODRIGUES,
AGED ABOUT 74 YEARS,
RESIDING AT KAWDOOR HOUSE,
KINNIKOMBALA POST, MANGALURU - 574 151.
1(B). GRETTA FERNANDIES,
D/O LATE VALERIAN RODRIGUES,
AGED ABOUT 51 YEARS,
RESIDING AT ODDUR HOUSE, SHIBIRIKERE POST,
-2-
NC: 2024:KHC:8835
RSA No. 279 of 2013
THENKA, YEDAPADAV RURAL,
MANGALURU TALUK, D.K.- 574 164.
1(C). LEENA REBELLO,
D/O LATE VALERIAN RODRIGUES,
AGED ABOUT 49 YEARS,
RESIDING AT MERLA PADAVU HOUSE,
VOLACHIL POST,
MANGALURU TALUK, D.K.- 574 143.
1(D). IVAN RODRIGUES,
S/O LATE VALERIAN RODRIGUES,
AGED ABOUT 47 YEARS,
R/AT KAWDOOR HOUSE,
KINNIKOMBALA POST, MANGALURU - 574 151.
1(E). RICHARD RODRIGUES,
S/O LATE VALERIAN RODRIGUES,
AGED ABOUT 45 YEARS,
RESIDING AT "VELANKANNI VILLA",
BHAJANA MANDIRA ROAD, PEDAMALE POST,
MANGALURU D.K. - 575 029.
2. THE SECRETARY,
PADUPERAR GRAMA PANCHAYATH,
PADUPERAR, MANGALORE - 570 001.
...RESPONDENTS
(BY MR. SANATH KUMAR SHETTY K, ADVOCATE FOR R1(A-E);
R2 - SERVED)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DATED 3.11.2012 PASSED IN
R.A.NO.179/2000 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE & JMFC., MANGALORE, D.K, PARTLY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DATED 4.9.2000 PASSED IN OS.NO.530/1996 ON THE FILE OF
THE V ADDL. CIVIL JUDGE (JR.DN) MANGALORE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC:8835
RSA No. 279 of 2013
JUDGMENT
This second appeal is filed by the appellants challenging the judgment and decree dated 03.11.2012 passed in R.A.No.179/2000 by the III Addl. Senior Civil Judge, Managlore, D.K., confirming the judgment and decree dated 04.09.2000 passed in O.S.No.530/1996 by the V Addl. Civil Judge(Jr.Dn) Managalore.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the defendants and respondent No.1 is the plaintiff, respondent No.2 is the defendant No.3.
3. The brief facts leading rise to filing of this appeal are as under:
Plaintiff filed suit for declaration of relief of Easement right by prescription and for permanent injunction. It is case of the plaintiff that item No.1 of the suit schedule property originally belonged to the father of plaintiff and the said land was granted to him under the Dharkasth -4- NC: 2024:KHC:8835 RSA No. 279 of 2013 rules and he was put in possession and he was enjoying the suit schedule property during his life time and on his death the said property was devolved upon the plaintiff and his brothers. The plaintiff is co-owner, he is in possession of suit item No.1 of suit schedule property.
The plaintiff was the agricultural tenant in respect of item No.2 of the suit schedule property under the grandfather of the defendants. Plaintiff filed a declaration in form No.7 after coming into force of the Karnataka Land Reforms Amendment Act and after enquiry, the Land Tribunal of Mangalore granted occupancy right in favour of the plaintiff in respect of item No.2 of the suit schedule property. The plaintiff has been cultivating the suit schedule properties and also growing vegetables in the suit schedule properties. The plaintiff submits that the main public road that is the road from Kaikamba to Bajpe is situated at about 350 feet away from the plaint schedule on its western side and it is running from South to North direction near the schedule property and the same is also running from Kolambe village. To reach the said public -5- NC: 2024:KHC:8835 RSA No. 279 of 2013 road, there has been road of about 20 feet link width roadway which is firstly running from South to North direction near the public road on the road margin thereafter, running in Sy. Nos.186/3A, 186/1B in Kolambe village joins the Sy. No.203/6 of Muduperar village and thereafter, it takes turn towards East and runs in East to West direction and it is shown as PPP in the annexed sketch. The plaintiff and his predecessor has been enjoying the said roadway to reach the property as of right openly, peaceable, without interruption to the knowledge of the all concerned land owners including the defendants.
The said roadway is inexistence since time immemorial.
The plaintiff has no absolutely no other alternative roadway to reach his property except the PPP roadway.
Hence, the same is easement of necessity also. It is contended that the defendants are owning the properties on Southern side bearing Sy. No.203/7 and on the Northern side bearing No.203/3 of the Sy. No.203/6. The defendants are also using the said PPP roadway to reach their property. The plaintiff is using the said roadway for -6- NC: 2024:KHC:8835 RSA No. 279 of 2013 cultivation and for reaching the schedule property, since from last two months the defendants started constructing piggery farm in Sy. No.203/3 and Sy. No.203/7 and started constructing the piggery shed in the plaint schedule property and denied that the plaintiff has been cultivating the suit schedule property. The defendants tried to close the said PPP roadway, the plaintiff requested the defendants not to close the PPP road. The defendants never gave any heed to the request made by the plaintiff.
Hence, cause of action arose for the plaintiff to file the suit.
4. Defendant Nos.1 and 2 filed their written statement and contended that the suit is false, frivolous, vexatious and non-maintainable and denying the plaint averments. It is further contended that there is no road as alleged by the plaintiff in the plaint. The plaintiff has got another alternative way to approach his land. It is contended that the defendants are owning the properties on the Southern side bearing SY. No.203/7 and on the -7- NC: 2024:KHC:8835 RSA No. 279 of 2013 Northern side bearing Sy.No.203/3. It is contended that the suit is not maintainable for non joinder of necessary parties. Hence, on these grounds prays to dismiss the suit.
5. The trial Court, on the basis of the above said pleadings, framed the following issues:
1) "Whether the plaintiff proves that, there exist 'PPP' 20 link width roadway as shown in plaint sketch which branch off from Kaikamba Bajpe Public road on western side on road margin running from South- North, thereafter running in S.No.186/3A, 186/1B in Kolambe Village joins S.No.203/6 Muduperar Village and thereafter it taken a turn towards east and runs in east to West direction since time immemorial?
2) Whether the plaintiff proves that, plaintiff enjoyed about referred suit roadway as of right and perfected their right by easement of prescription and necessity as there was no other alternative way?
3) Whether plaintiff proves that, defendants illegally interfered with user of suit roadway by the plaintiff?
4) Whether suit of the plaintiff is bad for inclusion of Mandal Panchayath, legal heirs of late P.A.Rodrigues as necessary party?-8-
NC: 2024:KHC:8835 RSA No. 279 of 2013
5) Whether the plaintiff is entitle for reliefs of declaration and prohibitory permanent injunction as sought in the plaint?
6) To what reliefs plaintiff is entitled for?
7) What Order or Decree?"
6. In order to prove the case of the plaintiff, the plaintiff examined herself as PW-1 and got examined one witness as PW-2 and got marked 8 documents as Exs.P1 to P8. In rebuttal, defendant No.1 examined himself as DW-1 and got marked 45 documents as Exs.D1 to D45. The Court Commissioner was appointed and he has submitted the report and he was examined as CW1 and got marked one document as Ex.C1. The trial Court on assessment of oral and documentary evidence of the parties, answered issue Nos.1 to 3 in the negative, issue No.4 in does not arise for consideration, issue Nos.5 and 6 in not entitled for the reliefs and issue No.7 as per the final order. The suit of the plaintiff was dismissed.
7. The plaintiff aggrieved by the judgment and decree passed in the O.S No.530/1996 dated 04.09.2000 -9- NC: 2024:KHC:8835 RSA No. 279 of 2013 preferred appeal in R.A.No.179/2000 on the file of III Addl. Senior Civil Judge, Managlore, D.K.
8. The appellate Court, after hearing the parties, has framed the following points for consideration:
1) "Whether the plaintiff proves that Sy. No.203/6 is a strip of land used as road belonging Mooduperar Village?
2) Whether the plaintiff proves that except 'PPP' roadway shown in the plaint sketch there are no other access to the plaint schedule property?
3) Whether the plaintiff is entitled to claim declaratory relief against the defendants when the alleged PPP roadway is a strip of Government land in Sy. No.203/6 of Mooduperar Village?
4) Whether the plaintiff proves the alleged interference by the defendant in obstructing the use of roadway by the plaintiff?
5) Whether the Judgment and decree of the trial court needs interference?
6) What order?"
9. The appellate Court, on re-assessment of oral and documentary evidence, answered issue Nos.1, 2 and 4 in the affirmative, issue No.3 in the negative, issue No.5
- 10 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 partly in the affirmative and issue No.6 as per the final order. The appeal was partly allowed and judgment and decree passed by the trial Court was set aside and suit of the plaintiff was partly decreed and granted permanent injunction restrained the defendants from interfering with the user of PPP roadway shown in the plaint sketch by the plaintiff.
10. The defendants aggrieved by the judgment of the appellate Court in decreeing the suit for permanent injunction has filed second appeal.
11. Heard the learned counsel the defendants and plaintiff.
12. Learned counsel for the defendants submits that the appellate Court has committed an error in decreeing the suit for permanent injunction, when the appellate Court has confirmed the dismissal of suit for declaration and he also submits that when the plaintiff is not entitled for the main relief. The appellate Court could
- 11 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 not have granted consequential relief of permanent injunction. In order to buttress his argument, he has placed reliance on the judgment of Hon'ble Apex Court in the case of Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai (Deceased) Through LR's and others (Padhiyar Prahladji Chenaji) reported in (2022) 2 SCR 3465 in Civil Appeal No.1382/2022, disposed of on 03.03.2022. Hence, on these grounds submits that the appellate Court has committed an error in decreeing the suit of the plaintiff for permanent injunction. Hence, on these grounds he prays to allow the appeal.
13. Learned counsel for the defendants submits that, the plaintiff has not challenge the dismissal of suit for relief for declaration and submits that the findings recorded by the Courts below in regard to the relief for declaration title is concerned, have attained finality.
14. Per contra, learned counsel for the plaintiff submits that the impugned judgment passed by the appellate Court is just and proper. He further submits that
- 12 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 without filing cross objection the plaintiff can challenge the dismissal of the suit and Order 41 Rule 22 of C.P.C. Further learned counsel for the plaintiff reliance on the judgment of the Hon'ble Apex Court in the case of Superintending Engineer and others Vs B. Subba Reddy (Superintending Engineer) reported in AIR 1999 SCC 1747 and judgment of this Court in the case of Puttegowda @ Ajjegowda Vs Ramegowda (Puttegowda @ Ajjegowda) reported in ILR 1996 KAR 465 and AIR 1999 SCC 3571. Hence, he submits that the plaintiff even without filing a suit for declaration of Easementary right can maintain a suit for bare injunction. Hence, he also submits that the existence of the PPP roadway is concerned the plaintiff has established the existence of the said road by leading the evidence and producing the documents and further contended that the plaintiff has no other alternative way except the suit way. Hence, he submits that on these grounds, he prays to dismiss the appeal.
- 13 -
NC: 2024:KHC:8835 RSA No. 279 of 2013
15. This Court admitted the appeal to consider following substantial questions of law:
(i) "Whether the appellate Court is justified in granting a decree for perpetual injunction particularly when there is no finding by first appellate Court relating to easement of necessity or easement by prescription?
(ii) Whether the first appellate Court is justified in granting a decree for injunction when there is no finding to the effect that PPP roadway is not the freshly or forcibly laid roadway laid by the plaintiff?"
Substantial question of law No.1:-
16. It is the case of the plaintiff that, there exists a PPP road 20 feet link with road as shown in the plaint sketch and the said road is the only road to approach the property of the plaintiff and defendants are obstructing the said road.
17. Hence, the plaintiff in order to prove the case examined himself as PW1 and he has reiterated the plaint averments in the examination in chief. In order to prove the case on hand the plaintiff has marked documents
- 14 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 Ex.P1 is the copy of the Land Tribunal order wherein the said land was granted in favour of plaintiff, Ex.P2 is the form No.10, Ex.P3 is the Krishi pass book, Ex.P4 to P7 are the photos and Ex.P8 is the negative.
18. Further in order to establish that there exists a suit road, plaintiff has examined one witness as PW2, who has deposed in the same line of PW1. In order to establish that there exists a suit road the plaintiff has not produced any other public documents. On the contrary defendants have confronted the photographs marked as Exs.D1 to D5 to the PW1, during the course of the cross- examination and PW1 admitted in the course of cross- examination that the property of the defendants are surrounded by compound wall and further PW2 also has deposed that the he is a driver and he use to carry his tempo on PPP road i.e., measure 4 to 5 times in a month and he has deposed that the plaintiff has no other alternative way to except the suit way. PW2 is related to plaintiff and he is the son-in-law of the plaintiff.
- 15 -
NC: 2024:KHC:8835 RSA No. 279 of 2013
19. In rebutted, the defendant No.1 was examined as DW1 and he has reiterated the written statement averments in the examination in chief and got marked documents Ex.D1 to D5 are the photographs which were marked through PW1 as the same was confronted to PW1 during the course of the cross-examination, Ex.D6 is the copy of order sheet passed in CP No.608/1995-96, Ex.D7 is the copy of the caveat petition filed by plaintiff against the defendants, Ex.D8 is the copy of the vakalat, Ex.D9 to D11 are the photographs, Ex.D12 is the RTC extract in respect of land bearing Sy.No.186/1A3A it stands in the name of DW1, Ex.D13 is the copy of the RTC extract in respect of land bearing Sy.No.186/1B, it stands in the name of defendants and other members of the family.
20. Ex.D14 is the copy of the letter addressed by the defendants to the village accountant for issue of certified copy of the RTC extract in respect of RS.186/3A and village accountant has endorsed on Ex.D14 on 19.07.1999, wherein, he has endorsed that RTC extract in
- 16 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 respect of land Sy.No.186-3(p), records are not available in the office and further Ex.D15 is the copy of the communication addressed by the defendants to the village account to issue RTC extract in respect of land bearing Sy.No.203/6, village accountant issued an endorsement on the said Ex.D15, it discloses that the said RTC extract is not available, Ex.D16 is the receipt issued by the police authority for having received the complaint filed by the defendanta against the plaintiff on 11.10.1996.
21. Ex.D17 is the copy of the complaint lodged by the defendants against the plaintiff, D18 is the copy of the complaint dated 16.10.1996, Ex.D19 is the certified copy of the order sheet of CP No.532/1996, Ex.20 is the copy of the caveat petition filed in CP No.532/1996 by the plaintiff against the defendants, Ex.D21 is the copy of the vakalat executed by plaintiff in favour of his counsel, Ex.D22 is the certified copy of the sale deed, it discloses that the father of the plaintiff had purchased the property, Ex.D23 to D28 are the photographs, Ex.D29 to D34 are the Negatives,
- 17 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 Ex.D35 is the copy of communication addressed by defendant No.1 to the President of Gram Panchayat, wherein, the plaintiff witnessed to issue of licence to construct piggery, poultry and cattle shed(farmhouse) on 11.06.1996, Ex.D36 is the copy of the construction permission issued in favour of defendant No.1 for constructing the building, Ex.D37 is the copy of tax on building licence paid by the defendant on 12.06.1996, Ex.D38 is the certificate of marriage.
22. In the course of cross-examination except suggesting that there exists a road in the land of defendants, nothing has been elicited from the mouth of this witness.
23. From the perusal of the records trial Court has recorded findings that placing reliance on the Section 4 Indian Easement Act. Though, the plaintiff has pleaded that PPP roadway is an also easement of necessity, but the plaintiff has not led any evidence in support of his pleading that the said lands of plaintiff and lands of defendants
- 18 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 was owned by one person and he has sold the said land in favour of the plaintiff and defendants in order to attract Section 13 of the Indian Easement Act, which reads as follows:
"13. Easements of necessity and quasi easements.- Where one person transfers or bequeaths immovable property to another-
(a) if an easement in other immovable property of the transferor of testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of
- 19 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons-
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
24. Section 13 of the Act contemplate that easement which is claimed as a easement of necessity can be claimed as the only possible mode of enjoyment of the right claim. Easement appears have been upon as that expressly or by necessary implication it will amount
- 20 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 easement of necessity under Section 13 of the Act. Further the plaintiff has not pleaded the said fact in order to attract Section 13 of Act and further plaintiff also claims right of prescription under Section 15 of the Act.
25. The Section 15 of the Indian Easement Act reads as follows:
"15. Acquisition by prescription.- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
- 21 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 Explanation I- Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II- Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
Explanation III- Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV- In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to the (Government), this section shall be read as if, for the words "twenty years" the words ["thirty years"] were substituted."
26. Provided that each of the said person period of 20 years shall be taken to the period ending within 2 years
- 22 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 next before the institution of the suit wherein the claim for such a period relates is contested.
27. From the perusal of the entire plaint, the plaintiff has nowhere pleaded that the plaintiff is using the alleged way for more than 20 years, ending within 2 years next before the institution of suit. The averment in the plaint is vague insofar as ingredients of Section 15 of the Act.
28. The trial Court considering the provisions of Section 13, 15 and also 4 of the Act, Court has held that the plaintiff is not entitle for relief of declaration of Easementary right and held that the plaintiff has failed to establish the existence of the PPP roadway and he is using the same since time immemorial and decline to grant relief filed by the plaintiff and dismissed the suit.
29. The appellate Court on re-appreciating the evidence confirmed the judgment of the trial Court in dismissing the suit for relief of declaration but however,
- 23 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 granted a relief of permanent injunction restraining the defendants from interfering with the user of PPP road shown in the plaint sketch by the plaintiff. The main suit is for the relief of declaration and injunction is an consequential relief. When the appellate Court has dismissed the suit for relief of declaration, the plaintiff is not entitle for the consequential relief of injunction the said view is supported by the judgment of Hon'ble Apex Court in the case of Padhiyar Prahladji Chenaji stated supra. Wherein, the Hon'ble Apex Court held at paragraph No.11.1 which reads as under:
"11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law."
- 24 -
NC: 2024:KHC:8835 RSA No. 279 of 2013
30. It is a suit for declaration with a further relief. Whether the further relief claim has, in a particular case as a consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held is not maintainable, no relief of injunction can be granted even against the true owner of the property, only when the person seeking the relief is in law full possession and enjoyment and also legally entitled to be in possession, not to dispossess in except in due process of law, so admittedly in the instant case, the trial Court dismissed the entire suit of the plaintiff wherein the appellate Court has confirmed the dismissal of the declaration of the suit, but however grated a relief of injunction, which is contrary to the law laid down by the Hon'ble Apex Court in case referred supra.
31. From the perusal of the entire evidence on record and also record the plaintiff has not pleaded to the effect that the PPP road is inexistence since from time immemorial and he is using the said roadway for more
- 25 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 than 20 years to attract Section 15 of the Act and though in the paragraph No.4 of the plaint the plaintiff has pleaded that the suit road is the public road in fact the plaintiff has not produced any records to show that the suit road is the public road and it is existence since from time immemorial and further that the plaintiff has also not produced any survey records to show the existence of PPP roadway in the land of defendants. In view of above discussion I answer substantial question of law No.1 in the negative.
Substantial question of law No.2:
32. The learned counsel for the plaintiff submits that even without challenging the dismissal of the suit for declaration of title, the plaintiff can challenge the judgment under Order XLI Rule 22. He has placed reliance the judgment of Hon'ble Apex Court in the case of Superintending Engineer stated supra, there is no doubt about the law laid down by the Hon'ble Apex Court even in the case the plaintiff without filing the cross
- 26 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 objection attract an adverse findings upon which decree has been passed against the plaintiff. But above mentioned case main suit of the plaintiff for relief of declaration of Easementary right was dismissed, further the plaintiff has not filed any cross objection under Order XLI Rule 22 challenge the findings but not the final result of the suit. Judgment placed by the learned counsel for the plaintiff is not applicable to the present case on hand.
33. Learned counsel for the plaintiff also placed reliance on judgment of this Court in the case of Puttegowda @ Ajjegowda stated supra, the said judgment is not applicable to the present case on hand. In the said suit plaintiff has filed suit for bare injunction, wherein, Co-ordinate Bench of this Court in the said case permitted the plaintiff to file an application for amendment and the said suit came to be dismissed by the trial Court and confirmed by the appellate Court and this Court allowed the appeal and remanded the matter to the trial Court with a liberty to the plaintiff to file a necessary
- 27 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 application on the ground that necessary particulars are not placed in view of the provisions Section 13 and 15 of the Specific Relief Act in the instant case, the plaintiff has filed suit for declaration of Easementary right. Hence, in view of the same the plaintiff has already claimed the relief of declaration of easement right. Hence, the question of remanding the matter to the trial Court would not arise. Hence, the said judgment is not applicable to the present case on hand.
34. In view of the aforesaid discussion, I answer substantial question of law No.2 in the negative. Hence, I proceed to pass the following order:
ORDER i. Appeal is allowed.
ii. The judgment and decree passed by the appellate Court in RA No.179/2000 dated 03.11.2012, passed by the III Addl. Senior Civil Judge Mangalore, D.K., is set aside.
- 28 -
NC: 2024:KHC:8835 RSA No. 279 of 2013 iii. The judgment and decree passed by the trial Court is restored.
iv. No order as to the costs.
Sd/-
JUDGE
AT
List No.: 1 Sl No.: 3
CT: BHK