Karnataka High Court
The President, Managing Committee vs Rachamma on 12 June, 2024
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NC: 2024:KHC-K:3812
RSA No. 200182 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200182/2018(EAS)
BETWEEN:
THE PRESIDENT,
MANAGING COMMITTEE OF JAMA MASJID
AND IDGAH,
CHIDRI,
BIDAR
REPRESENTED BY
MD. SAMIUDDIN S/O MD. YASEEN SAB
CHIDRI,
BIDAR-585401.
...APPELLANT
(BY SRI ABDUL REHMAN KORBO, FOR
SRI LIYAQAT FAREED USTAD, ADVOCATE)
Digitally signed
by SUMITRA
SHERIGAR AND:
Location: High
Court of
Karnataka RACHAMMA W/O GURAPPA
AGE: 57 YEARS, OCC: HOUSEHOLD
R/O. CHIDRI,
BIDAR-585401.
...RESPONDENT
(BY SRI K.M. GHATE, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, PRAYING TO ALLOW THE REGULAR
SECOND APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
OF THE TRIAL COURT AND THE FIRST APPELLATE COURT I.E.,
RESPECTIVELY IN O.S. NO.100/2012 PASSED BY PRINCIPAL
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NC: 2024:KHC-K:3812
RSA No. 200182 of 2018
CIVIL JUDGE AND JUDICIAL MAGISTRATE OF FIRST CLASS-II,
BIDAR DATED 03.07.2017 AND BY THE ADDITIONAL SENIOR
CIVIL JUDGE AND CJM, BIDAR IN R.A. NO.23/2017 DATED
01.03.2018.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Against the concurrent findings of facts of the Courts below, the plaintiff is before this Court in the regular second appeal.
2. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.
3. Suit seeking relief of declaration of right of easement of way over land Survey No.202/1 to the extent of 30 feet in width and length 215 feet in length, situated at Chidri Village in Bidar. The plaintiff's case is that the Jama Masjid is the owner and possessor of the land Survey No.250/1 to the extent of 03 acres 16 guntas with the boundaries stated in the plaint. It is stated that there is a Idgah in the said Survey Number since long time and the Muslims of Chidri Village and other villages are offering the prayer in the said Idgah, to go to Idgah there is a passage in Sy.No.202/1, the width of passage -3- NC: 2024:KHC-K:3812 RSA No. 200182 of 2018 is 30 feet North-South and 215 feet East-West. The plaintiff and the Muslims are using the passage from 25 years as a right peacefully, continuously and without any interruption, the plaintiff has perfected easementry right of way over Survey No.202/1 by way of prescriptive and necessity and except this passage there is no other passage to go to Idgah, Chidri, the defendant is erecting wall in the area of passage and disturbing the use of the passage by the plaintiff and other villagers to reach the Idgah.
4. On notice, defendant appeared and filed written statement and interalia stating the boundaries in the plaint are totally false, defendant is the owner of land in Survey No.202/1 and the defendant denied about the existence of the passage in Sy. No.202/1.
5. The trial Court on the basis of the pleadings framed the following issues:
"1. Whether the plaintiff prove the existence of way over the land survey No.202/1 of Chidri Village as averred in the plaint?-4-
NC: 2024:KHC-K:3812 RSA No. 200182 of 2018
2. Whether the plaintiff prove that it acquired right of easement by prescription over the suit road?
3. Whether the plaintiff prove that there is no alternative way to reach its bearing survey No.250/1 of Chidri Village?
4. Whether the plaintiff is entitled for the relief of declaration of easementary right as claimed in the plaint?
5. Whether the plaintiff is entitled for the relief prayed in the suit?
6. What order or decree?"
6. The trial Court on the basis of the pleadings, oral and documentary evidence, held as under:
i) That the plaintiff has failed prove the existence of the way over the land bearing Survey No.202/1 of Chidri Village and that the plaintiff has failed to prove that it has acquired right of prescription over the suit property;-5-
NC: 2024:KHC-K:3812 RSA No. 200182 of 2018
ii) That the plaintiff failed to prove that there is no alternative way to reach Sy.No.250/1 of Chidri Village;
7. By the judgment and decree the trial Court dismissed the suit with costs. Aggrieved, the plaintiff preferred appeal before the first Appellate Court and the first Appellate Court by re-appreciating the entire oral and documentary evidence independently concurred with the judgment and decree of the trial Court. Aggrieved by the concurrent findings of facts of the Courts below, the plaintiff is before this Court in this regular second appeal.
8. Heard the learned counsel for the appellant Sri Abdul Rehman Korbo for Sri Liyaqat Fareed Ustad and learned counsel for the respondents Sri K.M. Ghate.
9. Learned counsel for the plaintiff-appellant would contend that the Courts below had ignored that there is a passage, which is acquired by plaintiff by wall prescription and same is fus-Necessita as there is not alternate passage. He contends that the Courts below have concurrently mis-read the evidence and material placed by the plaintiff and has erroneous -6- NC: 2024:KHC-K:3812 RSA No. 200182 of 2018 dismissed the suit of the plaintiff, that there arrives substantial question of law in this appeal.
10. Per contra, the learned counsel appearing for the defendant-respondent justifies the judgment and decree of the Courts below. He would contend that on facts both the Courts below have held that the plaintiff has failed to prove an easement of prescription as stated in the plaint and the concurrent findings of the Courts below does not warrant any interference under Section 100 of CPC.
11. The plaintiff claims that there a 30 feet width and 215 feet length passage in Survey No.202/1. In order to substantiate their claim, the plaintiff examined himself as PW1, two witnesses as PWs.2 and 3 and got marked 18 documents at Exs.P1 to P18. Ex.P1 is the Certified copy of Sale Deed, Ex.P2 is RTC, Ex.P3 is Registration of Certificate, Ex.P4 is Certificate, Exs.P5 and P6 are RTC, Ex.P7 is Certified copy of Survey Sketch, Ex.P8 is Proceedings of Masjid Committee, Ex.P9 is Certified copy of Sketch, Ex.P10 is Form No.10, Ex.P11 is Sketch, Ex.P12 is RTC, Ex.P13 is Survey Hissa Babutu, Ex.P14 is Form No.10, Ex.P15 is Certified copy of Panchnama, Ex.P16 -7- NC: 2024:KHC-K:3812 RSA No. 200182 of 2018 is Assessment Register, Ex.P17 is Endorsement and Ex.P18 - Village Map.
12. The easement of way pleaded by the plaintiff is that the plaintiff and the Muslim Community are using the passage for the past 25 years. Section 15 of the Easement Act states about acquisition by the prescription. The condition stated under Section 15 of the said Act is that the easement used peacefully by the plaintiff is to be without interruption for 20 years. Easement of prescription is such a right, which is sought to be executed in some other's property.
13. The following conditions must exist to prove easement of prescription:
(1) There must be a pre-existing easement which must have been enjoyed by the dominant owner;
(2) The enjoyment must have been peaceful;
(3) Right enjoyed openly;
(4) Enjoyment must be for period of 20 years;
(5) Without interruption.-8-
NC: 2024:KHC-K:3812 RSA No. 200182 of 2018
14. No materials are forthcoming to indicate the right and usage of the passage by the plaintiff for a continuous period of 20 years against the interest of the true owner. The Apex Court in the case of Bachhaj Nahar V/s. Nilima Mandal1, at Para 14 has held as under:
"14. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He 1 AIR 2009 SUPREME COURT 1103 -9- NC: 2024:KHC-K:3812 RSA No. 200182 of 2018 should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence."
15. On the other hand, it is also plea of the plaintiff that except the suit passage there was no alternative way to reach Idgah and plea of necessity is also taken. The plea of the prescription and necessity are contradictory to each other and cannot co-exist. Either the plaintiff has to plead that he has acquired the easement by way of prescription or by necessity.
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NC: 2024:KHC-K:3812 RSA No. 200182 of 2018 The Village Map produced by the plaintiff does not indicate about the passage as sought for by the plaintiff. The trial Court after considering the evidence adduced held that plaintiff failed to prove the acquisition of right of way of prescription and also plaintiff was not able to establish his right on the basis of necessity.
16. The first Appellate Court being the last fact finding Court has re-appreciated the entire oral and documental evidence and arrived at a conclusion that the plaintiff has failed to establish the right of easement over the suit passage. The concurrent findings of facts of the Courts below that the plaintiff has failed to prove that the suit passage was used and in enjoyment of the plaintiff and his community members as their right without any interruption as indicated under Section 15 of the Easement Act warranting no interference and no substantial questions of law arise for consideration in this regular second appeal to be deal with under Section 100 of CPC. Accordingly, this Court pass the following:
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NC: 2024:KHC-K:3812 RSA No. 200182 of 2018 ORDER
i) The regular second appeal is dismissed.
ii) Judgment and decree of the Courts below stand confirmed.
Pending I.As., if any, does not survive for consideration.
Sd/-
JUDGE SBS List No.: 1 Sl No.: 29 CT: VD