Karnataka High Court
M/S Spring Borewells Co Pvt Ltd vs Union Of India on 17 August, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
R.F.A. NO.506/2010
Between :
M/s. Spring Borewells Co.Pvt.Ltd.,
No.41 (Old No.28), Cubbon Road
Bangalore - 560 001
Rep. by its Director
Shri K.L. Swamy
S/o late K. Lakshmansa
Aged about 62 years
Cubbon Road, Bangalore-1 ... Appellant
(By Sri S.K.V. Chalapathy, Sr.Counsel for
Sri S Nanjundaswamy, Sri B.R. Narayana Rao
& Sri S Sukumar, Advs.)
And :
1. Union of India
By its Principal Secretary
Ministry of Defence
New Delhi - 110 001.
2. Mr. A.K. Kapila, Colonel
Administrative Commandant
For Station Commander
Station Headquarters Cell
K & K Sub-Area
Cubbon Road
Bangalore - 560 001.
3. The Station Commandant
Station Headquarters Cell
K & K Sub-Area
2
Cubbon Road
Bangalore - 560 001.
4. Ministry of Defence
Head Quarters
Southern Command
Poona by its Commandant. .. Respondents
(By Sri N Devhadas, Sr. Counsel for
Sri Y Hariprasad, CGSC for R1 to 4)
This R.F.A. is filed under Section 96 and Order-41
Rule-1 of CPC, against the judgment and decree dated
19.12.2009, passed in O.S.No.7123/2006 on the file of the
IX Addl. City Civil and Sessions Judge, Bangalore,
dismissing the suit for permanent and mandatory
injunction.
This appeal having been reserved for judgment,
coming on for pronouncement this day, the Court
pronounced the following :
JUDGMENT
The appellant herein is the plaintiff in O.S.No.7123/2006. The said suit was filed by the plaintiff seeking for the relief of permanent and mandatory injunction. The Court below considering the rival contentions has dismissed the suit by its judgment and decree dated 19.12.2009. The plaintiff claiming to be aggrieved by the same is before this Court. 3
2. The parties would be referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity.
3. The case of the plaintiff is that it is a private limited company and is the absolute owner of the property bearing No.41 (Old No.28), Cubbon road Bangalore with old buildings therein. The plaintiff claims to have purchased the said property under four sale deeds dated 07.12.1984, 10.12.1984, 11.12.1984 and 10.12.1984 respectively. The property owned by the plaintiff is described in schedule 'A' to the plaint. The property of the plaintiff is stated to be bound on the east by the military property belonging to the second defendant; west by St.Andrew's Church: North by Private property and South by Government land and thereafter Cubbon Road. The plaintiff is stated to be using the vacant property towards the south of its property for the purpose of ingress and egress through the gate which is towards the Cubbon Road. It is averred that except the said entry, there is no other 4 place to enter the plaintiff's property. The property on the east belonging to the military is the Station Head Quarters Cell, K & K Sub Area and there are buildings on infantry cross road and there is a pakka compound in between the property belonging to the military and the plaintiff in bifurcating the same. To the West, there is a Church and thereafter M/s.L & T property. Accordingly, the plaintiff claims to be using the entry from the Cubbon road for more than 22 years from the date of the purchase without any let of hindrance from anybody including the defendants. It is stated that the erstwhile land owners were also using the same entry from time immemorial. Due to such continuous use beyond the prescriptive period, the plaintiff claims to have acquired easementary right over the pathway.
4. The grievance of the plaintiff is that the second defendant in the process of repairing the old compound, by rebuilding it has in fact demolished the old compound wall and a new wall is built on the eastern side of the suit property but leaving about 6 ft opening 5 on the southern end towards the plaintiff's property. This was objected to by the plaintiff. Though a gate was being attempted to be put up in the six ft wide gap, the same has been prevented by the plaintiff and the gap was left by the second defendant. In that regard, the police complaints were also lodged on 17-09-2005 and 26.05.2006. Though the Police intervened and adviced the Military officials against putting up the gate, they are trying to put up the gate. The plaintiff further states that on 06.08.2006, the second and third defendants tried to put up a barbed wire fence on the southern side of the suit property and posted number of Military personnel with A.K.47 guns in order to prevent the plaintiffs' entry to the suit property. The plaintiff however contends that they have successfully prevented the illegal acts of the defendants. Hence, the plaintiffs apprehend threat of dispossession. As such, the plaintiffs claim for perpetual injunction against interference with plaintiff's possession, enjoyment and mandatory injunction to remove the hollow brick wall 6 bifurcating Schedule 'A' property from Government land.
5. The defendants on being served with the suit summons have appeared and filed their written statement. The defendants contend that in the sale deeds referred by the plaintiff it is indicated that Defence/Government land is existing towards the southern side of the property bearing No.41. It is therefore contended that Government land does not form part of property bearing No.41, Cubbon Road. Reference is made to recital therein about permission under agreement dated 01.09.1925. Though sale deed copies are produced, the plan has not been produced. In any event, the terms of the plaintiff's sale deed does not bind the Defence Department and does not confer any right to the plaintiff's over the Defence land. It is denied that the property on the southern side is the only road for ingress and egress from the suit schedule property. The rough sketch is not reliable. The agreement dated 01.09.1925 based on which right is 7 being claimed has not been produced. The defendants have referred to the letter dated 20.03.1982 from the Deputy Commissioner (Revenue), City Corporation, informing the defendants that the unauthorised compound created in between property Nos.95 and 96, Infantry Cross Road, has been demolished on 11.02.1982 and the land is kept open which can be used as 'thoroughfare' by the owner of property No.41, Cubbon Road. That establishes the existence of an access from East of the plaintiff's property. The defendants have disputed the indication of the southern boundary as Cubbon Road. It is averred that all this is only an effort of the plaintiff to falsely claim the Government land. Hence, the case of the plaintiff has been denied in toto regarding the same being the only entry to the property of the plaintiff. The defendants have further contended that about 25-30 years ago an effort was made by the plaintiff's vendor to gain entry through Military property by closing the eastern boundary and that was cleared by the City Corporation. Reference is also made to the property owned by 8 plaintiff's group which provides direct access to Infantry Road. The Vendors of the plaintiff having filed a suit in O.S.No.10445/82 claiming similar right and they having failed is also submitted. The defendants have thereafter traversed each of the averments of the plaintiff made parawise and have sought for dismissal of the suit.
6. The Court below on noticing the rival contentions has framed as many as four issues for its consideration, which reads as hereunder:
(1) Whether the plaintiff proves that the southern boundary of the schedule property is correct and it is the only access to the schedule property? (2) Whether the interference alleged is true? (3) Whether the plaintiff is entitled to the permanent injunction sought for?
(4) To what decree or order?
7. In order to discharge the burden cast on the parties, the Director of the plaintiff examined himself as PW-1 and examined three other witnesses as PW-2 to PW-4 and relied upon the documents at Exhs.P1 to P.24. The defendants examined one witness as DW-1 9 and marked documents at Ex.D-1 and D-1 (a). The Court below on analysing the materials and evidence available on record has dismissed the suit by the judgment and decree dated 19.12.2009. The plaintiff is assailing the same in this appeal.
8. Sri. S.K.V. Chalapathy, learned senior counsel appearing for the plaintiff at the outset submitted that the plaintiff at this stage does not press regarding easement of necessity. The suit is therefore for protecting the easementary right by prescription having used the same as a matter of right for more than thirty years. Reference is made to Section 15 of Indian Easements Act, 1882 ('the Act' for short) and Section 13 of Evidence Act. Though the property was being used as ingress and egress based on the permission granted under agreement dated 01.09.1925 and the earlier sale deed dated 22.10.1948 wherein there is reference to the permissive user of the approach road, the sale deed dated 23.05.1969 under which Sri B.M.Gill purchased the property does not refer to the permission. 10 Therefore, when that was only the access and when the earlier permissive user is admitted, the presumption is that from 23.05.1969, it was being used as a matter of right. Thereafter the said Sri. B.M.Gill has conveyed the property by sale to his three daughters by deed dated 30.03.1970. The said property has thereafter been purchased by the plaintiff in the year 1984. Hence, when such user from 1969 was as a matter of right, the same has resulted in prescriptive right in the year 1999. There would be presumption of user due to human conduct. The evidence would indicate such road and gate was there and when the defendants have not contended that they had permitted even thereafter, it has to be presumed that the user was without permission and as a matter of right. It is only in the year 2006, the defendants attempted to construct the wall and the plaintiff at that point approached the Court. In reply to the argument of the learned senior counsel for the defendants, it is further contended that the pleading has to be liberally construed and a prayer for declaration is not necessary as contended. A suit for 11 injunction would suffice is the submission. Hence, he prays for allowing the appeal and decreeing the suit.
9. Sri N Devhadas, learned senior counsel for the defendants would seek to sustain the judgment passed by the Court below. With reference to the pleading and prayer, it is contended that the plaintiff should seek for a declaration regarding easementary right without which they are not entitled to maintain the suit. The relief prayed is only injunction which can only be granted as a consequential relief if they had succeeded in seeking declaration. The right claimed from 1969 is only a presumption of the plaintiff and there is absolutely no evidence. When a prescriptive right by way of easementary right is contended, not only the declaration in that regard should be sought but there should be sufficient pleading and proof. The plaintiffs herein have not pleaded regarding the user of the property as a matter of right nor has the same been pleaded with regard to the predecessor's user as a matter of right. Hence, it is contended that in the 12 nature of the case which was put forth before the trial Court, the Court has considered the same in its correct perspective and dismissed the suit which does not call for interference.
10. In the light of the rival contentions, the following questions arise for consideration in this appeal:
I) Whether the plaintiffs in the instant case could have sought for the injunction as prayed without seeking for the relief of declaration?
ii) Whether in the instant case, the plaintiffs have successfully pleaded and proved the use of the B-schedule property as a matter of right for the prescriptive period?
iii) Has the Court below appreciated the material keeping in view the nature of the case put forth and arrived at an appropriate conclusion?13
11. As noticed, since the plaintiffs' case is restricted to be one for prescriptive easmentary right as provided under Section 15 of the Easements Act and not for easement of necessity as pleaded, the provision contained therein is required to be noticed. Section 15 of the Act reads as hereunder;
"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.
Explanation I.- xxxxxxxxxxxx Explanation II.-xxxxxxxxxxxx 14 Explanation III.- xxxxxxxxxxx Explanation IV.-xxxxxxxxxxxx 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."
12. Hence, in the instant case, the plaintiffs are required to satisfy the Court that they have pleaded and established that they have peaceably and openly enjoyed the right of way as an easement without interruption and therefore they are entitled to claim right thereto. In the instant case, the period of such enjoyment should be shown to be for thirty years since the property in question admittedly belongs to the Government.
13. Though the plaint indicates that the pleading is mainly that 'B' schedule property was being used as the road by way of easement of necessity, the plaintiff has also pleaded that they are using the entry from South (Cubbon Road) side for more than 22 years from the date of purchase without any let or hindrance from 15 anybody much less the defendants and was being used by the erstwhile landowners from the time immemorial. Anyhow the claim in this appeal has been argued as a claim for prescriptive easementary right under Section 15 of the Act. Hence, the primary contention as to whether the relief of injunction could be granted without seeking for declaration supported by pleading and proof needs to be decided at the outset.
14. The learned senior counsel for the defendants has cited the decision of a learned Single Judge of this Court in the case D Ramanatha Gupta -vs-
S. Razaack (AIR 1982 Kar 314) wherein it is held as follows:
"10. In Siti Kantapal v. Radha Gobinda Sen (AIR 1929 Cal 542). A Division Bench of the Calcutta High Court has further made the proposition lucid. In the course of the judgment this is what the High Court has ruled:
"It has been authoritatively held that title to easement is not complete merely upon the effluxion of the period mentioned in the statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and 16 until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit."
11. It is, therefore, necessary that in a suit for injunction based on a prescriptive easement right, the plaintiff should seek for a declaration from the Court that he has so acquired the prescriptive right of easement. In the present suit, however, the plaintiff has not sought for declaration that he has acquired prescriptive right of easement with regard to the inflow of air and light through the windows and ventilators. Without more, therefore, the suit is liable to be dismissed. The Courts below have obviously missed this legal aspect."
The point that had been raised for consideration in that case before arriving at the above conclusion is, "Whether the suit for mere injunction is maintainable, when the same is based on the alleged prescriptive right, without a prayer for declaration that the plaintiff acquired such prescriptive right?"
15. The learned senior counsel for the plaintiff on the other hand cited the decision of another 17 learned Single Judge of this Court in the case of Puttegowda alias Ajjegowda -vs- Ramegowda (1996 (5) KLJ 306). It is contended that in the said case the learned Judge has declared that a suit for bare injunction without seeking the relief of declaration in respect of easementary right is maintainable. It is further pointed out that while arriving at such conclusion, the case of Ramanatha Gupta (supra) relied on by the learned senior counsel for the defendant has been considered and stated to be per incuriam and sub silentio. Hence, it is contended that in the instant case the suit for injunction even in the absence of seeking for the relief of declaration is maintainable.
16. I have carefully perused both the above cited decisions. The position which is clear is that the decision in the case of Ramanatha Gupta (supra) is rendered while considering the case of easementary right of prescription under Section 15 of the Act, while the case of Puttegowda alias Ajjegowda (supra) had arisen on the basis of easement of necessity as provided 18 under Section 13 of the Act, though while remanding the case for fresh consideration, the learned Judge has indicated that an issue be raised with regard to prescriptive right also. However, the learned Judge has failed to notice the marked difference between the right available under the said provisions namely Section 13 and Section 15 of the Act which has to satisfy different requirement in those situations. The reading of Section 15 would make it clear that an absolute right would be available over the property belonging to another if the requirements contemplated therein are satisfied which is akin to claiming right by adverse possession. If that be so, there should be a prayer to grant a declaration in that regard and in aid of such prayer, there should be pleading and proof.
17. In fact it would be appropriate to refer to the decision of the Hon'ble Supreme Court relied on by the learned senior counsel for the defendants, rendered in the case of Bachhaj Nahar -vs- Nilima Mandal and another [(2008) 17 SCC 491] wherein the Hon'ble 19 Court keeping in view the provisions of the Easements Act, Specific Relief Act and the Civil Procedure Code has summarised the need for appropriate pleadings and prayer, so that the relevant issues could be framed and the matter could be considered in that regard based on the evidence. Para 13 of the said decision reads as hereunder;
13. The object of issues is to identify from the pleadings the question or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when 20 the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
(emphasis supplied)
18. If the above aspects are kept in perspective and considered in the background of the opinion expressed by the Hon'ble Supreme Court, the view taken in Ramanath Gupta's case (supra) is the correct view. In fact the decision in Puttegowda alias Ajjegowda is hit by doctrine of sub silentio as the view therein to hold Ramanath Gupta's case as per incuriam is not taken by keeping in view the different set of requirement under the two different provisions. In any event such view taken is contrary to the view expressed by the Hon'ble Supreme Court. Hence, I am of the considered opinion that when the plaintiff claims easementary right over another's property by way of prescriptive right and seeks protection of such right, it is a requirement that the relief of declaration should be 21 prayed with pleadings to support such prayer and consequently seek protection by injunction.
19. In that backdrop, the facts in the instant case would reveal that except for the stray averment in the plaint, as noticed above, to contend that the passage was being used by the plaintiff for the last 22 years after purchase and by their predecessors from time immemorial, the other averments point to claim of easements of necessity and that too in the nature by contending that there is an attempt to close the passage and therefore to injunct the defendants. In that view, the issues framed in the instant suit which has been extracted above would also disclose to that effect and there is no indication with regard to the matter having been considered in the direction of deciding the prescriptive right. Hence, the arguments addressed by the learned senior counsel for the plaintiff with reference to agreement of 01.09.1925 about permissive user and thereafter the sale deed dated 23.05.1969 of Sri B.M. Gill containing no stipulation and therefore, 22 the user was as a matter of right and the decisions relied upon would not arise for consideration in a First Appeal when there is no foundation laid in the suit and the relief of declaration is not sought. In fact the nature of the discussion made by the trial Court in the instant case and the observation in paragraph 31 of the impugned judgment itself will disclose that the foundation laid was not for a declaration of prescriptive right and seeking such declaration was not attempted. Hence, if such right is granted based on the presumption as sought to be made out, but, in the absence of there being evidence for actual user of the land, as a matter of right, it would certainly prejudice the case of the defendant. When I have noticed the later decision of the Hon'ble Supreme Court and also the nature of the pleadings in the instant case based on which the issues had been raised and parties had gone to trial, the decision in the case of Rama Sarup Gupta (dead) by L.Rs.-vs- Bishun Narain Inter College & Others (AIR 1987 SC 1242) relied on by the learned senior counsel for the plaintiff would also not be of 23 assistance. At best the plaintiff can only avail their remedy in accordance with law.
20. In that view, the points No. (i) and (ii) raised above is answered in the negative holding that in the instant facts, the relief of injunction could not have been sought without seeking for the relief of declaration and the pleading and proof is presently insufficient. The point No. (iii) is therefore answered in the affirmative as the Court below has not committed any error on the available materials on record.
Accordingly the appeal being devoid of merit is dismissed. In the facts and circumstances the parties shall bear their own costs.
Sd/-
JUDGE Akc/bms