Karnataka High Court
Smt. Tungamma vs Smt. Seethamma on 30 August, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 30th DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.569 OF 2013 (DEC/INJ)
BETWEEN:
1. SMT. TUNGAMMA,
W/O PATEL HANUMATHAPPA,
AGED ABOUT 71 YEARS,
APPELLANT NO.1 DEAD,
APPELLANT NO.2 TO 6 ARE TREATED AS
LR'S OF THE - DECEASED APPELLANT NO.1.
2. G H VERANA GOUDA,
S/O PATEL HANUMATHAPPA,
AGED ABOUT 44 YEARS,
3. G RUDRA GOUDA,
S/O PATEL HANUMATHAPPA,
AGED ABOUT 42 YEARS
PROFESSION: ADVOCATE
R/O NO.249, 8TH CROSS, "B" BLOCK,
DEVRAJ URS LAYOUT, DAVANAGERE -
577006.
APPELLANTS NO.1 TO 3 ARE THE
R/O GUDDADA BEVINAHALLI VILLAGE,
HARIHARA TALUK, DAVANAGERE DISTRICT,
PIN - 577530.
4. SMT SAVITRA
W/O RUDRAPPA,
AGED ABOUT 50 YEARS.
5. SMT SARALA,
W/O JAYARAJ,
AGED ABOUT 46 YEARS
2
OCC: HOUSEWIFE
APPELLANTS NO.4 AND R5
ARE THE R/O KODI CAMP TARIKERE,
CHICKMAGALORE DISTRICT -577228.
6. H ANAND,
S/O HALAPPA, AGED ABOUT 36 YEARS,
OCC: AGICULTURIST
R/O GUDDADA BEVINAHALLI
VILLAGE, HARIHARA TALUK
DAVANAGERE DISTRICT,
AND PERMANENT R/O HALLIKERE VILLAGE,
BHADRAVATHI TALUK - 577301,
SHIMOGA DISTRICT.
...APPELLANTS
(BY SRI V B SIDDARAMAIAH, ADVOCATE FOR APPELLANTS 2
TO 6, A2 TO A6 ARE TREATED AS LRS OF DECEASED A1)
AND:
1. SMT SEETHAMMA,
W/O LATE SHEKARAPPA,
AGED ABOUT 66 YEARS,
2. SRI MANJUNATHA,
S/O LATE SHEKARAPPA,
AGED ABOUT 41 YEARS,
3. SRI BASAVARAJ,
S/O LATE SHEKARAPPA,
AGED ABOUT 40 YEARS,
4. SRI MURIGESH,
S/O LATE SHEKARAPPA,
AGED ABOUT 38 YEARS
DEAD BY LR'S
R4(1) SMT ASHA,
W/O LATE MURIGESH,
AGED ABOUT 45 YEARS,
3
R4(2) SRI SANTHOSH,
S/O LATE MURIGESH,
AGED ABOUT 23 YEARS,
R4(3) SRI SRUJAN,
S/O LATE MURIGESH,
AGED ABOUT 20 YEARS,
ALL ARE R/AT GUDDADA
BEVINAHALLI VILLAGE - 577530,
HARIHARA TALUK, DAVANAGERE DISTRICT.
5. SMT GEETHA,
D/O LATE SHEKARAPPA,
AGED ABOUT 36 YEARS
R/O #204/02, 2ND MAIN
7TH CROSS, VINOBANAGAR
DAVANAGERE - 577003.
6. SRI MUNIYAPPA,
S/O LATE SHEKARAPA,
AGED ABOUT 34 YEARS,
AGRICULTURIST,
DEAD BY HIS LRS
6(a) SMT GOWRAMMA,
W/O LATE MUNIYAPPA,
AGED ABOUT 35 YEARS,
6(b) MASTER BHARATH,
S/O LATE MUNIYAPPA,
AGED ABOUT 8 YEARS,
6(c) KUMARI BINDU,
D/O LATE MUNIYAPPA,
AGED ABOUT 6 YEARS,
RESPONDENTS NO.6(b) & (c) ARE MINORS,
REP. BY THEIR NATURAL GUARDIAN MOTHER
RESPONDENT NO.6(a).
RESPONDENTS 1,2,3,4 AND 6(a) to (c) ARE
R/O GUDDADA BEVINAHALLI VILLAGE - 577530,
4
HARIHARA TALUK, DAVANAGERE DISTRICT.
...RESPONDENTS
(BY SRI D P MAHESH, ADV. FOR C/R1 TO R3, R4(1-3), R5,
R6(a) - SERVED,
R6 (b & c ARE MINORS REP. BY R6(a))
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DTD 6.12.2012 PASSED
IN R.A.NO.57/2007 ON THE FILE OF SENIOR CIVIL JUDGE,
HARIHAR, DISPOSING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DTD 23.7.2007 PASSED IN
OS.NO.161/1999 ON THE FILE OF CIVIL JUDGE (JR.DN.) &
JMFC, HARIHAR.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31ST JULY, 2025 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
CAV ORDER
This appeal is filed challenging the concurrent
judgments and decrees for injunction, and the divergent
judgment and decree of First Appellate Court, granting a
declaration which was declined by the Trial Court. Thus, the
defendants have filed second appeal.
2. The suit is for declaration, permanent injunction,
and a mandatory injunction. The plaintiff sought a
declaration of right of way described in the 'B' schedule
5
property. The plaintiff described the 'B' schedule property as
the road measuring 12 feet in width. It is shown as "AICDB"
in the sketch appended to the plaint.
3. The plaintiff claims that the said road passes
through the land of the defendants and is necessary for the
plaintiff to reach the Panchayat road from his residential
house located in the suit 'A' schedule property. The claim is
based on the registered sale deed dated 04.08.1980 (Ex.P1)
executed in favour of the plaintiff, by the predecessor in title
of the defendants.
4. The execution of the sale deed is not denied by
the defendants. However, the defendants pleaded ignorance
of the sale deed dated 04.08.1980. The claim relating to the
right of way is denied.
5. Defendants contend that, adjacent to the
property bearing Sy.No.42, i.e., suit 'A' schedule property,
there is a passage on the eastern side, in Sy.No.43, part of
which is owned and possessed by the plaintiff, leading to the
Panchayat road.
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6. Defendants contend that the entire suit 'B'
schedule property is in their possession, and the claim
relating to the easement is disputed. Defendants also did not
admit the correctness of the sketch appended to the plaint.
In substance, defendants have denied the existence of the
suit road in toto. The Trial Court has framed 6 issues.
7. Issue No.1 relates to the ownership of 'A'
schedule property, which in fact is not in dispute. Issue No.2
relates to the use of the 'B' schedule property. Issue No.3
relates to the easement to use the 'B' schedule property.
8. The Trial Court has concluded that the suit road
is in existence and granted an injunction holding that the
plaintiff has the right to use the 'B' schedule property for the
beneficial enjoyment of the property sold under the sale
deed.
9. The Trial Court has held that the plaintiff has
acquired an easement of necessity under Ex.P1, but did not
specifically grant the relief of declaration..
10. Defendants filed an appeal against the
aforementioned judgment and decree. The plaintiff did not
7
question the decree declining the relief of declaration sought
in respect of the suit 'B' schedule property.
11. First Appellate Court dismissed the appeal and
granted relief of declaration in addition to confirming the
decree for injunction.
12. The Court vide order dated 19.06.2013 has
framed the following substantial questions of law:
(i) Whether the Courts below are justified in
granting the relief of right of way over the "B"
schedule property, without making a finding
that whether the plaintiff has acquired/got the
right of easement of necessity or prescription
as contemplated under Easement Act?
(ii) Whether Lower Appellate Court is justified in
granting decree of declaration in a appeal filed
by the defendants, in the absence of the
appeal/cross appeal by the plaintiff, by
exercising power under Order 41 Rule 33 of
C.P.C., which is complete inconsistent and
when the plaintiff has chosen to raise a
arguments at the time of hearing the appeal
and he has not given sufficient explanation that
why he had not preferred the appeal or cross
objection, further when court fee is not paid
8
for the granted relief of declaration in the
appeal?"
13. After hearing the learned counsel appearing for
the defendants/appellants who also raised a contention
relating to extinction of easement under Sections 13, 41 and
43 of the Indian Easements Act, 1882 (for short 'Act, 1882),
the Court also felt one more substantial question of law is
required to be framed regarding alleged extinction of
easement. Hence, the parties were permitted to address the
arguments on the question;
"Whether the appellants establish extinction
of easement under Sections 41 and 43 r/w
Section 13 of the Act, 1882?".
14. Learned counsel for the appellants raised the
following contentions:
(a) Easement which is alleged to have been
created/granted under the sale deed dated 04.08.1980 gets
extinguished because of change of use of the property.
(b) The property sold by the predecessor of the
defendants was an agricultural land, and the
purchaser/plaintiff converted it for non-agricultural use. As
9
per the illustration in Section 13 of the Act, 1882, the right
to use the easement is available only when the property is
used for agricultural purposes and such right ceases when
the nature of use changes. Since the property is converted
for non-agricultural use, the easement, if any, created under
the sale deed gets extinguished.
15. Learned counsel would refer to Section 41 of the
Act, 1882, which reads as under:
"41. Extinction on termination of necessity.- An
easement of necessity is extinguished when the
necessity comes to an end".
16. Learned counsel would also refer to Section 43 of
the Act, 1882, to contend that easement if any, in favour of
the plaintiff is extinguished.
17. Learned Counsel for the plaintiff would also
submit, pointing to the Court Commissioner's report, where
it is stated that the property of the plaintiff and defendants
is separated by a fence. In the plaint, the plaintiff has not
specified when the access is closed, and relief of mandatory
injunction without specific particulars relating to the closure
of the road is not tenable.
10
18. Learned counsel would urge that First Appellate
Court could not have granted relief of declaration, which was
declined by the Trial Court, in the absence of any appeal or
objection.
19. Learned counsel for the respondents would
submit that the execution of the sale deed dated 04.08.1980
is established. The vendor did not question the sale deed,
and the plaintiff's right to use the road mentioned in the sale
deed. Thus, the defendants, being the descendants of the
vendor, cannot question the sale deed. The sale deed makes
a specific reference to 12 feet road to reach the property
purchased by the plaintiff, and said road is necessary to
reach the Panchayat road. The alleged road, which is
suggested by the defendants, allegedly passing through
Sy.No.43 is not in existence. Even if it is found to be in
existence, is passing through the land of others and is not
convenient to the plaintiff to reach the Panchayat road.
20. Learned counsel would also urge that no case is
made out for the extinction of the easement granted under
the sale deed dated 04.08.1980 in favour of plaintiff by
taking necessary plea in the written statement.
11
21. Learned counsel for the respondents submits that
First Appellate Court is justified in granting the relief of
declaration as the finding on Issue No.3 by the Trial Court in
favour of the plaintiff is virtually the relief of declaration,
though it is not specifically reflected in the operative portion
of the decree passed by the Trial Court. Since the Trial Court
has concluded that the suit road is in existence and the
plaintiff has a right to use the suit road as per the covenant
made in the sale deed dated 04.08.1980, the relief of
declaration is deemed to have been granted and First
Appellate Court by granting a relief of declaration has only
clarified the effect of the decree passed by the Trial Court
and same is not inconsistent with the decree passed by the
Trial Court.
22. The Court considered the contentions raised and
perused the records.
23. The plaintiff claims the right over the 'B'
schedule-12 feet road under the registered sale deed dated
04.08.1980. Execution of the sale deed dated 04.08.1980 in
favour of the plaintiff is established, and the same is not
12
disputed in this appeal. The Court has to refer to the sale
deed dated 04.08.1980 in first instance.
24. The last sentence in the sale deed after
describing 12 guntas in Sy.No.42 sold by the vendor
Karadevarappa Hanumantappa reads as under:
"F d«ÄäUÉ ¥À²ÑªÄÀ ¢QÌ£À°ègÄÀ ªÀ £À£ßÀ d«Ää¤AzÀ §gÀ®Ä ªÀiÁªÀÄÆ®Ä
ºÀ£ÉßgÀqÀÄ Cr zÁj ªÁrPÉ EzÉ."
25. There is no difficulty in concluding that a road
measuring 12 feet in width was in existence when the A
schedule property was sold by the predecessor of the
defendants in favour of the plaintiff.
26. The question is whether this road is meant for the
use of the plaintiff-purchaser.
27. If the road was not meant for the use of the
purchaser, then there was no need to recite about 12 feet
road to reach the property sold by the predecessor of the
defendants.
28. Prima facie, the logical inference coming from the
said recital in the said sale deed is that the vendor has
conferred and recognised the plaintiff's right to use 12 feet
13
road to reach the property sold to the purchaser-plaintiff. If
it is otherwise, or in other words, if the defendants were to
take a contention that the said recital did not confer any
right to use 12 feet road, then the defendants must come
out with a proper explanation as to why the said recital in
the sale is incorporated and what it actually conveyed. There
is no such explanation in the written statement. In the
written statement, the defendants pleaded ignorance about
the sale deed.
29. Learned counsel for the appellants would attempt
to distinguish the expression, "dari vadike" found in the
sale deed from the expression "vadike dari" the expression
which is not in the sale deed.
30. According to the learned counsel, the expression
"dari Vadike" means a way/passage for occasional use and
not for regular use, and the expression "vadike dari" would
mean a road/passage for regular use. By attempting to find
out a distinction between these two expressions, the learned
Counsel would urge that the expression "dari vadike" in the
sale deed does not confer easement.
14
31. The word "vadike" in Kannada would mean
'usage'. Thus, the expression "dari Vadike" found in the sale
deed would only mean the 'road/passage in use'. The
expression "vadike dari", which is not found in the sale deed,
does not convey any different meaning than what is
conveyed through the expression "dari vadike". The Court is
of the view that both expressions convey the same meaning.
All that can be said about the recital in the sale deed is that
the vendor acknowledged the existence of the road to reach
the property conveyed.
32. There is one more reason to arrive at such a
conclusion. The boundaries mentioned in the sale deed
wherein 12 guntas of the 'A' schedule property is conveyed
to the plaintiff are as under:
East: Property of Rudrappa Gowda
West: The Remaining portion of the vendor
North: Property of Siddappa
South: Property of Kotrappa Gowda
33. The boundaries do not refer to the road in any of
four directions. The only sentence in the sale deed which
15
refers to the right of way or access to the property sold is
the last sentence in the sale deed which is already referred
to and discussed above.
34. From the said recital, it is evident that the
property of the vendor is on the western side of the property
sold to the plaintiff-purchaser. And there existed 12 feet
road to reach the property sold, from the property retained
by the vendor-which is on the western side of the property
sold. Thus, there is no difficulty in holding that 12 feet road
in the property bearing Sy.No.42 was in existence when the
property was sold to the plaintiff and the said sale deed
recognizes the said 12 feet road to reach to the property,
which is conveyed under the sale deed dated 04.08.1980.
35. The plaintiff has not claimed an easement of
prescription. There is no pleading relating to the easement of
prescription. In the impugned judgments, it is not held that
the plaintiff has acquired an easement of prescription. Thus,
the contention that the pleading does not specify as to
whether it is an easement of necessity or prescription does
not assume much importance, as the right which is claimed
is based on the deed executed by the defendants'
16
predecessor in title and the plaintiff has averred that the suit
road is essential to reach the suit 'A' schedule property.
36. Learned counsel for the appellants would urge
that before the Trial Court, the Court Commissioner was
appointed, and he has submitted a report which revealed
that the suit road as claimed by the plaintiff in the plaint,
hand sketch was not in existence when the Commissioner
visited the suit property.
37. It is also his further submission that the
Commissioner has recorded a finding that the plaintiff has
access to the public road through a road passing through Sy.
No.43, in which the plaintiff also has a share.
38. In addition, learned counsel would also submit
that this Court has appointed the Court Commissioner to
submit the report after making a spot inspection. The
advocate Commissioner who inspected the suit property has
given a finding that the road as claimed by the plaintiff is not
in existence; as such, the decree granting the relief of
declaration of easement over the suit 'B' schedule property
is erroneous.
17
39. Learned counsel for the respondents would
submit that the plaintiff has also sought a mandatory
injunction, and even if the report says that the road is closed
or the road is not in existence, the defendants are under an
obligation to remove the obstruction and to provide access
to the plaintiff under the road mentioned in the sale deed.
40. Whether the plaintiff is entitled to access to the
road is dependent on the proof of the existence of the road
and the right conferred under the sale deed.
41. As already noticed, the right to use 12 feet road
in the property belonging to the vendor is established. The
question is, "Whether the road was in existence as on the
date of the suit?"
42. In the plaint, it is averred that the road is in
existence and the defendants are making a hurried attempt
to close the road; consequently, the defendants also sought
a mandatory injunction to remove the obstruction.
43. It is not the defence that the road was in
existence when the property was sold, and it was closed
three years before the filing of the suit. The defence is that
18
of total denial. The existence of road and extinction of
easement is also not pleaded in the alternative. The
contention relating to total denial of the existence of the
road is not proved, as the Court has concluded that the road
is very much recognised in the sale deed dated 04.08.1980
executed by the predecessor in title of defendants.
44. This being the position, the defendants cannot
take a contention that the road was closed three years
before the filing of the suit, and as such, the suit is not
maintainable as it was not in existence three years before
the suit. Had they taken a defense that the road was in
existence and it was not used for any of the reasons and it
was closed by the defendants and the suit is filed many
years after or three years after the closure of the said road,
on account of availability of alternative road, the Court could
have considered whether decree can be granted when the
road was not in existence three years before filing of the
suit. Such a question does not arise as the defendants have
not raised a contention relating to the closure of the road
three years before filing the suit. Hence, for this reason, the
Court is of the view that whether the road existed on the
19
date of the suit is of little consequence, as the plaintiff has
sought a mandatory injunction by making an averment that
the road is in existence and the defendants are attempting
to close the road.
45. Though the defendants also argued that the way
in which 12 feet road is projected in the hand sketch is not
established, the Court cannot attach much importance to the
said technical contention as the defendants have not come
out with a plea as to pattern or contours of the said road
recognized in the sale deed executed by the predecessor of
the defendants. Since, sale deed establishes the existence of
the road, the Court is of the view that the existence of the
road to reach the house of the plaintiff in the property
conveyed under the sale deed dated 04.08.1980 is
established.
46. The next question is "whether the easement is
extinguished as urged?"
47. Reference is made to an illustration under Section
13 of the Act, 1882. The illustration would indicate that
when the owner sells the property used only for agricultural
20
purposes and if the said property is inaccessible except by
passing over the adjoining land of the vendor, then the
purchaser is entitled to use the access for agricultural
purposes only. It is not the case of the defendants that the
property was used only for agricultural purpose. The sale
deed does not contain a recital to hold that the right of way
is recognised only in case the property sold is used for
agricultural purposes. Thus, the conversion of land
measuring 12 guntas for non-agricultural use and thereafter,
the construction of a residential house by the plaintiff does
not take away the right to use the road recognised under the
sale deed dated 04.08.1980. This is more so in the present
set of facts of the case, as there is no such plea in the
written statement that because of change in the use of the
property by the plaintiff, the burden on the servient heritage
has increased and easement is extinguished.
48. Learned counsel for the defendants/appellants
has also referred to Section 41 of the Act, 1882 to contend
that the easement of necessity comes to an end when the
necessity comes to an end. The illustration to the said
provision reads as under:
21
"A grants B a field inaccessible except by passing
over A's adjoining land. B afterwards purchases a
part of that land, which he can pass to his field. The
right of way over A's land, which B had acquired, is
extinguished"
49. From the said illustration, it is apparent that
when a person transfers by way of grant a piece of
immovable property to another and the access to the said
property is only through the land of the grantor, the
purchaser has the right to use such access. Such a right gets
extinguished when the grantee purchases that land through
which he has access to the property granted. To put it
differently, Section 41 of the Act, 1882 recognises the "need
based and necessity centric" easement getting extinguished
once absoluteness of necessity wanes out.
50. In the instant case, the easement in favour of the
plaintiff is not extinguished as the plaintiff has not acquired
any new access, after he acquiring the suit property under
the sale deed dated 04.08.1980. The property bearing
Sy.No.43 in which the defendants are pointing "a road" to
the plaintiff was already with the plaintiff even before he
purchased the dominant heritage. Despite plaintiff
22
possessing Sy.No.43 or any part of it, when the plaintiff
purchased portion of Sy.No.42, the vendor (defendants'
predecessor) conveyed or recognised the right to use 12 feet
passage/road in Sy.No.42. Thus, the Court is of the view
that defendants have failed to make out a case to attract
Section 41 of the Act, 1882. Section 41 of the Act, 1882 can
be invoked if the owner of the dominant heritage acquires
the servient heritage over which he exercised easement.
51. Reference is also made to Section 43 of the Act,
1882 to contend that right over 12 feet road is extinguished.
Section 43 of the Act, 1882 reads as under:
"43.Extinction by permanent change in
dominant heritage.-Where, by any permanent
change in the dominant heritage, the burden on the
servient heritage is materially increased: easement,
the easement is extinguished, unless
(a) it was intended for the beneficial enjoyment of
the dominant heritage, to whatever extent the
easement should be used; or
(b) the injury caused to the servient owner by the
change is so slight that no reasonable person would
complain of it; or
(c) the easement is an easement of necessity.
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Nothing in this section shall be deemed to apply to
an easement entitling the dominant owner to support
of the dominant heritage."
52. Section 43 serves two purposes:
(i) It provides as to when the easement extinguishes.
(ii) And in terms of clauses (a) to (c), it also provides as to
when the easement does not extinguish.
53. In other words, clauses (a) to (c) of Section 43 of
the Act, 1882, are like exceptions to first part of the
provision which deals with a situation when the easement
extinguishes.
54. To hold that easement is extinguished by
applying Section 43 of the Act, 1882, -
(i) The servient owner must establish that, the
nature of permanent change in the dominant
heritage is of such a nature that it has
materially increased the burden on the
servient heritage
and
(ii) such burden cannot be reduced without
servient owner interfering with the lawful
24
enjoyment of the easement by the owner of
dominant heritage
55. If the holder of dominant heritage brings home
the aspects enunciated in Section 43 of Act, 1882, he can
protect his easement.
56. To protect the easement, the owner of dominant
heritage must establish that,
(a) the easement conferred is of any extent, or
(b) that the injury caused to the servient owner is so
little that any reasonable man would not
complain of such injury, or
(c) The easement is of easement of necessity.
57. In the instant case, the defendants have not
pleaded that because of subsequent change in the use of
property by the dominant owner, the use of road referred to
in the sale deed changed drastically and burden on the
servient owner has increased to such an extent that it
cannot be reduced without interfering with the lawful use of
easement.
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58. The defence available under Section 43 of the
Act, 1882 is a defence based on fact. The facts attracting
Section 43 must be pleaded and proved. The increased
burden on the servient heritage cannot be presumed. In the
absence of pleading attracting Section 43 of the Act, 1882,
one cannot conclude that the conversion of agricultural land
into non-agricultural land itself, by the plaintiff, has affected
the right to use the road under the sale deed dated
04.08.1980. Hence, the contentions based on Sections 41
and 43 of the Act, 1882, do not come to the aid of the
defendants/appellants.
59. Since, the contentions relating to extinction of
easements are mixed questions of law and fact, the person
raising such contentions must admit the existence of
easement at one point of time and must plead necessary
ingredients to attract Sections 41 and 43 of the Act, 1882.
If the easement is not admitted, then atleast in the
alternative must aver facts attracting Sections 41 and 43 of
the Act, 1882. In the instant case, the defendants have
failed to plead and prove the contentions relating to Sections
41 and 43 of the Act, 1882.
26
60. Assuming that Section 43 is attracted, then from
the recital in the sale deed dated 04.08.1980, it appears that
Clause (a) and Clause (c) of Section 43 of the Act, 1882 are
attracted. In such an event, the easement or the right to use
the road is not extinguished.
61. Now the question is, "Whether the appellants
have made out a case that there could not have been a
declaration granted by First Appellate Court without there
being a cross appeal by the plaintiff?"
62. Learned counsel for the appellants has relied on
the judgment of the co-ordinate Bench of this Court in
Sri V. Dhayaian vs Sri Muniswamy and Another1 to
substantiate his contention.
63. The Court has considered the said judgment. It is
noticed from the said judgment that in exercise of power
under Order XLI Rule 33 of the Code of Civil Procedure, the
Court cannot grant the relief in the absence of an appeal or
cross-objection in every suit. However, when the relief
granted in the absence of any appeal or cross objection is
1
ILR 2009 Kar 4527
27
not inconsistent with the relief already granted, then, such
exercise of power under Order XLI Rule 33 of the Code of
Civil Procedure, is permissible.
64. In the instant case, the Trial Court has granted
an injunction after recording a finding on issue No.3.
65. Issue No.3 reads as under:
"3.whether the plaintiff proves that his
vendor has sold "A" schedule property to him
along with right of way over the "B" schedule
property and he has perfected his right of way
over "B" schedule property as easementary
right?"
66. Finding on Issue No.3 reads as under:
"3. I hold that the plaintiff proved that his
vendor has sold "A" schedule property and
made provision to make use and enjoy suit
schedule "B" property by making recital in the
sale deed, for beneficial enjoyment of property
sold under Ex.P1, and he has perfected right
of way over suit schedule "B" property by way
of easement of necessity."
(Emphasis supplied)
28
67. Thus, the Court has held that the plaintiff has
easement over the 'B' schedule property. The plaintiff has
also sought relief of a declaration that he has the right to
use the 'B' schedule property as a road. The formal
declaration, which is sought in the plaint, is not granted.
68. First Appellate Court has granted a relief of
declaration that the plaintiff has the right to use the road
without there being a separate appeal or cross objection by
the plaintiff. Such a declaration granted by First Appellate
Court cannot be said to be inconsistent with the relief
already granted, i.e. relief of injunction, which is based on
the right to use the road proved in terms of finding on Issue
No.3 which issue is on proof of easement of necessity. In
fact such declaration granted by First Appellate Court, is in
aid of the decree for injunction, is implicit in the decree for
injunction, if the nature of relief sought and facts of the case
are borne in mind.
69. Assuming that such a declaration could not have
been granted by First Appellate Court in the absence of a
formal cross appeal or formal appeal or cross objection, still
the relief of declaration granted in favour of the plaintiff
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recognizing his right to use the road under the sale deed
takes care of the plaintiff's interest and imposes an
obligation on the defendants to allow the plaintiff to use the
suit road.
70. That being the position, the Court is of the view
that the declaration granted by First Appellate Court cannot
be said to be one without jurisdiction under Order XLI Rule
33 of the Code of Civil Procedure but is in sync with object
and underlying principle of Order XLI Rule 33 of the Code of
Civil Procedure.
71. For the reasons recorded above, the Court does
not find any reason to interfere with the decree passed by
First Appellate Court granting the declaration which is more
in the nature of clarification or in aid of the relief of
injunction granted making the decree for injunction more
explicit than what it appears from a cursory perusal.
72. As far as the contention that the road which is
claimed is not in existence, it is to be noticed that the
plaintiff has also sought a mandatory injunction. Once the
right to use the road is established and the obstruction is
30
established, in the absence of a specific plea that road is
closed three years before the filing of the suit, suit for
mandatory injunction cannot be dismissed on the premise
that the existence of the road as on the date of suit or as on
the date of the Commissioner's spot inspection is not
established.
73. As already discussed, the Court has noted that
the defendants have not contested the case on the premise
that the road was closed three years before filing the suit.
74. Though learned counsel for the appellants has
tried to make out a case that one more road is available to
the plaintiff to reach the Panchayat road from his property
bearing Sy.No.43, the Court is of the view that the sale deed
dated 04.08.1980 did not confer the right to use the road on
a condition that such right is available till the alternative
road is found. The extinguishment of easement under
Sections 41 or 43 of the Act, 1882, can be recognised only in
the situation contemplated under Sections 41 and 43. Since
no such situation is brought out in the pleading and
evidence, the Court cannot interfere in the impugned
judgment and decree passed by the Trial Court.
31
75. However, learned counsel for the defendants/
appellants has brought to the notice of the Court that the
suit road is shown up to the northern edge of the property
sold to the plaintiff. It is his contention that the recital in the
sale deed does not indicate that the plaintiff has right of way
throughout the western boundary of the plaintiff's property
and up to the northern edge of the property purchased by
the plaintiff.
76. At this juncture, it is necessary to refer to Section
22 of the Act, 1882 and illustrations to it. Same reads as
under:
"22.Exercise of easement. Confinement of
exercise of easement.- The dominant owner must
exercise his right in the mode which is least onerous
to the servient owner; and, when the exercise of an
easement can without detriment to the dominant
owner be confined to a determinate part of the
servient heritage, such exercise shall, at the request
of the servient owner, be so confined.
Illustrations
(a) A has a right of way over B's field. A must enter
the way at either end and not at any intermediate
point.
32
(b) A has a right annexed to his house to cut
thatching grass in B's swamp. A, when exercising
his easement, must cut the grass so that the plants
may not be destroyed."
77. On a reading of Section 22 of the Act, 1882, it is
evident that the dominant owner has to exercise his
easement in a least onerous way or that it imposes minimum
inconvenience to the servient owner.
78. It is also noticed from the sketch appended to the
plaint that the entrance to the plaintiff's property is located
at midway on the western boundary of plaintiff's property.
79. This being the position, the Court is of the view
that the plaintiff is entitled to easement up to the entrance
to the property of the plaintiff as shown in the sketch
appended to the plaint, and the plaintiff is not entitled to any
easement in respect of the area adjacent to the 'A' schedule
property, to the north of the entrance shown in the sketch
appended to the plaint.
80. 12 feet width road is recognised from the
Panchayat road through the land of the defendants only up
33
to the entrance of the plaintiff's property and not beyond the
said entrance on the northern side.
81. For the aforementioned reasons, substantial
questions of law are answered accordingly.
82. Since the plaintiff has also sought mandatory
injunction before the Trial Court claiming that the defendants
have put a fence over the 'B' schedule property, the
defendants are directed to remove the obstructions if any in
the suit road recognised in paragraphs No.73 and 74.
83. Hence, the following:
ORDER
(i) The Second Appeal is allowed-in-part.
(ii) Judgment and decree dated 06.12.2012 in R.A.No.57/2007 on the file of Senior Civil Judge, Harihara are modified.
(iii) The Judgment and decree dated 23.07.2007 in O.S.No.161/1999 on the file of Civil Judge (Junior Division) Harihara are modified.
(iv) The suit of the plaintiff is decreed in part.
(v) It is declared that the plaintiff has right of 12 feet way in the suit 'B' schedule property 34 upto the entrance of the plaintiff's property as shown in the sketch appended to the plaint.
(vi) The defendants are restrained from interfering the legal representatives of deceased plaintiff in the use of suit way in the 'B' schedule property up to the entrance of the plaintiff's property as shown in the sketch appended to the plaint. The sketch appended to the plaint shall be part of the decree.
(vii) The defendants shall remove obstructions in the suit property mentioned within 30 days from today.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE brn List No.: 1 Sl No.: 28