Karnataka High Court
Gurupadayya Channabasappa Turmari vs Mahadevayya Murigeyya ... on 6 February, 2025
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NC: 2025:KHC-D:2634
RSA No. 1444 of 2006
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 06TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 1444 OF 2006
BETWEEN:
GURUPADAYYA CHANNABASAPPA TURAMARI,
AGED ABOUT: 75 YEARS,
OCC: AGRIL AND BUSINESS,
R/AT: HAVERI,
TQ AND DIST: HAVERI.
1A. RAJASHEKAR S/O GURUPADAPPA,
AGE. 64 YEARS, OCC: SERVICE,
R/O: OM NAGAR, SAI NAGAR ROAD,
UNKAL, HUBBALLI.
1B. PARVATI D/O GURUPADAPPA TURAMARI,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: HATTARGI ONI HAVERI,
DIST: HAVERI.
1C. SHANKARAPPA,
Digitally
signed by AGE: 54 YEARS, OCC: AGRICULTURE,
VN R/O: HATTARGI ONI HAVERI,
BADIGER
DIST: HAVERI.
Location:
High Court
of 1D. MALLIKARJUN S/O GURUPADAPPA TURAMARI,
Karnataka,
Dharwad AGE: 52 YEARS, OCC: AGRICULTURE,
Bench R/O: HATTARGI ONI HAVERI,
DIST: HAVERI.
1E. SAVANTRAVVA W/O GURUDAPPA TURAMARI,
AGE: 82 YEARS, OCC: HOUSEHOLD WORK,
R/O: HATTARGI ONI HAVERI,
DIST: HAVERI.
1F. RUDRAPPA S/O. GURUDAPPA TURAMARI,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: HATTARGI ONI HAVERI,
DIST: HAVERI.
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NC: 2025:KHC-D:2634
RSA No. 1444 of 2006
...APPELLANTS
(BY SRI. SHRIKANT T. PATIL, ADVOCATE)
AND:
MAHADEVAYYA MURIGEYYA HALAYYANAVARAMATH
SINCE DECEASED BY HIS LRS.
(1 TO 4 AND 8 TO 10)
1. VIRUPAXAYYA S/O. MAHADEVAYYA,
SINCE DECEASED BY HIS LRS.
1A. NEELAMMA
W/O. VEERUPAXAYYA HALAYYANAVARMATH,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: PURAD ONI, HAVERI,
DIST: HAVERI.
1B. ANNAPURNA
D/O. VEERUPAXAYYA HALAYYANAVARMATH,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: PURAD ONI, HAVERI,
DIST: HAVERI.
1C. CHANNABASAPPA W/O NAGAYYA HIREMATH,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: PURAD ONI, HAVERI,
DIST: HAVERI.
2. SHIVABASAYYA
S/O MAHADEVAYYA HALAYYANAVARMATH,
AGED ABOUT: 62 YEARS,
R/AT: HAVERI.
3. SHIDDAYYA
S/O MAHADEVAYYA HALAYYANAVARMATH,
AGED ABOUT: 57 YEARS,
R/AT: HAVERI.
4. SANGAVVA W/O MAHADEVAYYA
SINCE DECEASED BY HIS LRS.
(NOTE: AS PER MEMO DATED: 06/12/2019,
SINCE THE RESP NO. 2 AND 3 HEREIN
ARE THE ONLY SURVIVING LEGAL
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NC: 2025:KHC-D:2634
RSA No. 1444 of 2006
HEIRS OF DECEASED RESP NO.4)
5. SHIDDAYYA CHANNABASAYYA CHABBIMATH
SINCE DECEASED BY HIS LRS.
5A. VIJAYALAXMI @ LALITHA
W/O REVANASIDDYYA SHANTAPURAMATH,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: PURAD ONI, HAVERI,
DIST: HAVERI.
5B. BHARATI W/O SHAMBULINGAYYA HIREMATH,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: PURAD ONI, HAVERI,
DIST: HAVERI.
5C. GEETA W/O VEERESH HAMMAGI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: PURAD ONI, HAVERI,
DIST: HAVERI.
6. BASAVARAJ TIPPANNA KAMBALI,
SINCE DECEASED BY HIS LRS.
DELETED VIDE COURT ORDER
DATED 15/01/2025
7. MALLIKASAB RAJESAB KURAGUND,
SINCE DECEASED BY HIS LRS.
DELETED VIDE COURT ORDER
DATED 15/01/2025
(NOTE: AS PER MEMO DATED 06/12/2019,
LRS. OF DECEASED RESP NO. 6 AND 7
IN THE ABOVE CASE IS NOT NECESSARY)
8. SMT. CHANNAVVA
W/O REVASHIDDAYYA HIREMATH,
AGED: 66 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD WORK,
R/AT: SAUNNSHI, TQ: KUNDAGOL,
HAVERI.
9. SMT. CHANNAVVA W/O SHIDDAYYA CHABBIMATH,
SINCE DECEASED BY HER LRS.
(NOTE: AS PER MEMO DATED 06/12/2019
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NC: 2025:KHC-D:2634
RSA No. 1444 of 2006
SINCE THE RESP NO.5 AND 9 ARE HUSBAND
AND WIFE AND PROP RESP NO.5 (A) TO 5(C)
ARE THE ONLY SURVIVING LEGAL HEIRS OF
DECEASED RESP NO. 5 & 9)
10. SMT. SAROJINIDEVI
W/O SUDHAKARASWAMY HIREMATH,
SINCE DECEASED BY HER LRS.
11. PRABHAKAR
S/O SUDHAKARASWAMY HIREMATH,
AGED ABOUT: 61 YEARS,
OCC: BUSINESS,
R/AT: JORAPURPETH BIJAPUR,
VIJAYAPURA.
12. SATISH
S/O SUDHAKARASWAMY HIREMATH,
AGED ABOUT: 56 YEARS,
OCC: MEDICAL PRACTITIONER,
R/AT: JORAPURPETH BIJAPUR,
VIJAYAPURA.
13. SANTOSH
S/O SUDHAKARASWAMY HIREMATH,
AGED ABOUT: 56 YEARS,
OCC: BUSINESS,
R/AT: JORAPURPETH BIJAPUR,
VIJAYAPURA.
14. SHAILESH S/O SUDHAKARASWAMY HIREMATH,
AGED ABOUT: 51 YEARS,
OCC: BUSINESS,
R/AT: JORAPURPETH BIJAPUR,
VIJAYAPURA.
...RESPONDENTS
(BY SRI M.S. HARAVI, ADVOCATE FOR R2, R3, R8 & R10
TO R14, R6 AND R7 IS DELETED,
NOTICE TO R1(A), R1(C), R5(A), R5(C) ARE SERVED,
NOTICE TO R1(B) TO R5(B) IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A. NO.
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NC: 2025:KHC-D:2634
RSA No. 1444 of 2006
1/1980 DATED 3/12/2005 ON THE FILE OF THE CIVIL JUDGE, SR.DN.
HAVERI REVERSING THE JUDGMENT AND DECREE PASSED IN
O.S.NO.85/76 DATED 09/11/1979 ON THE FILE OF THE MUNSIFF
AND JMFC HAVERI BY ALLOWING THIS APPEAL WITH COST IN THE
INTEREST OF JUSTICE AND EQUITY.
IN THIS APPEAL ARGUMENTS BEING HEARD, RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
CAV JUDGMENT
1. This appeal is filed by the plaintiff challenging the judgment and decree dated 03.12.2005 passed in RA No.1 of 1980 on the file of the Civil Judge (Sr.Dn) Haveri, allowing the appeal and setting aside the judgment and decree dated 09.11.1979 passed in OS No.85 of 1976 on the file of the Munsiff Haveri, decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The plaint averments are that, the plaintiff claims -6- NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 to be the owner of the suit schedule 1-A property bearing Sy.No.40/1 measuring 10 acres, and the defendants 1 to 5 are the owner in possession of the land bearing Sy.No.45/2+3 measuring, 13 acres, 02 guntas of Siddadevapura Village, Haveri District. It is stated in the plaint that, the land belonging to the plaintiff is situate towards East of the land of defendants. It is also stated that, the plaintiff and his brothers have purchased the suit schedule land as per registered Sale Deed dated 26.04.1973 from one Siddalingappa Choushetti. After the partition in the family, schedule property-1-A, was allotted to the share of the plaintiff. The land belonging to the defendants is on the Western side of the plaint 1-A schedule property. Plaintiff has annexed the hand sketch map. Suit schedule property 1-A and 1-B properties are situate adjacent to each other. It is also stated that North of 1-B property, bearing Sy.No.44 is -7- NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 situate as part of the land belongs to APMC yard, Haveri. It is also stated that, the plaintiff has purchased Plot No.24 in the above APMC yard, and has constructed the building. The width of the road, is about 60x70. It is further averred in the plaint that, the plaintiff being utilized the service of the road as shown in the Map-PQRO and QSMN of plaint sketch to reach the suit land bearing Sy.No.40/1 and thereafter, enter the schedule 1-B property through the boundaries shown in the Map as A, B, B1 and A1 (Water Canal). Thereafter, along with other pedestrians of neighboring land, the plaintiff is using N, N-2, B and B-2, portion to reach plaint 1-A schedule property. The plaintiff never had any obstruction to use the said path way. It is also stated that, the land bearing Sy.No.41 and to the East of Sy.No.41/1 and Sy.No.41, a big water source shown in the map as TCD is situate from time immemorial. -8-
NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 To the side of the aforementioned water source, towards the South, there is a way to the plaintiff's shown in the hand-sketch as N-1, B-1, B-2 and A-2 to reach his land. The plaintiff has used the same for taking the agricultural implements through Bullock carts regularly, however, the defendants have tried to close the said pathway and as such, it is stated in the plaint that, the plaintiff has perfected his title to the suit way as easement by prescription and accordingly, filed OS No.85 of 1976, seeking relief of declaration that the plaintiff has got right of easement by prescription in respect of the suit way namely, N, B, B-2 and N-2 as shown in the plaint sketch to reach the schedule land bearing Sy.No.40/1 of Siddadevapura Village and also sought for consequential relief against the defendants.
4. After service of summons, the defendants entered appearance and filed detailed written -9- NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 statement denying the averments made in the plaint. It is the specific case of the defendants that, the plaintiff has no right of way as per the plaint sketch shown as N, B, B-2 and N-2 and there is no entry from point NM of the sketch to the schedule property. It is also stated in the written statement that, a water source through lies as A, B, B-1 and A-1 in the plaint sketch. It is also stated that the plaintiff is having Plot No.24 in the APMC yard and the plaintiff has no right of way in the plaint 1-B property in the water source through B-1, A-1, and B-1 or adjoining area shown as N-1, B-1, B-2, and N-2. It is also stated in the written statement that, the plaintiff never used the way as stated in the plaint and the said way cannot be used for transportation of agricultural implements and accordingly, the defendants urged that, the plaintiff has got two ways to reach the plaint schedule property, firstly, from Northern side of Nadkarnis
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 Bunglow which is a road from Siddadevapur and Veerapur village, and the said road passes through the land of plaintiff and defendants. Secondly, the plaintiff is also using Haveri-Guttal Road, to reach his plaint 1- A property from North and Western Boundary of Sy.Nos.42 and 43 to reach the Nala which reaches the schedule property and therefore, the defendants sought for dismissal of the suit.
5. In the meanwhile, the plaintiff has amended the plaint seeking relief of declaration which was accepted by the Trial Court and pursuant to the same, the defendants have filed additional written statement stating that the plaintiff has not acquired right of easement by prescription over the suit way and accordingly, sought for dismissal of the suit.
6. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration.
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006
7. In order to establish their case, plaintiff has examined three witnesses as PW1 to PW3 and got marked 11 documents as Exs.P1 to P11. On the other hand, defendants examined 06 witnesses as DW1 to DW6 and produced 09 documents as Exs.D1 to D9.
8. The trial Court, after considering the material on record, by its judgment and decree dated 09.11.1979 decreed the suit of the plaintiff and being aggrieved by the same, the defendants have preferred Regular Appeal in RA No.1 of 1980 on the file of First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 03.12.2005 allowed the appeal and accordingly, set aside the judgment and decree passed by the trial Court in OS No.85 of 1976.
9. Being aggrieved by the judgment and decree in
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 RA No.1 of 1989, the appellant-plaintiff has preferred this Regular Second Appeal under Section 100 of CPC. The appellant has filed IA No.1 of 2024 under Order XLI Rule 27 of CPC and sought to produce certain documents to establish the right of way as sought in the plaint.
10. This court vide order dated 20.10.2009 formulated the following substantial questions of law.
i) Whether the Courts below were justified in treating an easementary right by prescription and an easementary right of necessity as one and the same ?
ii) Whether the Lower Appellate Court was justified in negating the spot inspection and the findings of the Trial Court after that spot inspection and arriving at conclusions which were not apparent from the record and proceeding with reference to subsequent events which were not relevant further relief claimed by the plaintiff. ?
11. I have heard Sri. Shrikanth T. Patil, learned counsel for the appellant and Sri. M.S.Haravi, learned
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 counsel appearing for the contesting respondents.
12. Sri. Shrikanth T. Patil, learned counsel for the appellants submitted that, the First Appellate Court has not properly appreciated the evidence on record and has ignored the fact that, the land bearing Sy.No.40/1 belonging to the plaintiff, wherein, the Western boundary of the plaintiff's land, i.e. land bearing Sy.No.45/2+ 3 is belonging to the defendants. It is also argued that, "Halla" is situate as per A, B, A- 1, B-1 area in the plaint sketch. The spot inspection report supports the case of the plaintiff and there is no alternative road, for the plaintiff to reach his property and as such, the Trial Court has decreed the suit which was erroneously interfered with by the First Appellate Court. It is also the submission made by the learned counsel for the appellant that, the First Appellate Court has committed an error in considering the fact that, the defendants have converted the land
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 for non-agricultural purpose and that apart, in the civil suit between APMC and the plaintiff, wherein the right of way of the plaintiff was recognized and the said observation has been ignored by the First Appellate Court and accordingly, sought for interference of this Court. It is the principal submission of the learned counsel for the appellant that, the right of way is not only by prescription but also by necessity and the plaintiff has produced the entire material before the court below, seeking right of way and same has been ignored by the First Appellate Court and accordingly, sought for interference of this Court. In order to buttress his arguments, learned counsel for the appellant places reliance on the judgment of this Court in the case of N.Vijayendra Rao vs. Vasudeva Pal and others reported in (2016) 3 KCCR 2086.
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006
13. Per contra, Sri. M.S.Haravi learned counsel for the respondents sought to justify the impugned judgment and decree passed by the First Appellate Court. It is submitted by the learned counsel for the respondents by referring to Issue Nos. 1 and 2 in OS No.85 of 1976 and contended that, the plaintiff has not proved, the way as sought for in the sketch appended to the plaint, is the only way for the plaintiff to reach his land and therefore, sought for dismissal of the appeal. In order to buttress his arguments, he referred to the judgment of the Hon'ble Supreme Court in the case of Justiniano Antao and Others vs. Bernadette B. Pereira reported in (2005) 1 SCC 471 and argued that, the appeal be dismissed on merits.
14. This Court vide order dated 28.08.2024 appointed the Court Commissioner to file a report relating to the factual aspects on record and pursuant
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 to the same, the Court Commissioner filed a report dated 12.09.2024, which is part of the original records.
15. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the courts below. The plaintiff has sought for relief of declaration that, the plaintiff has got right of easement by prescription in respect of the suit way i.e. N, B, B-2 and N-2 as shown in the plaint sketch to reach his land bearing Sy.No.40/1 of Siddadevapura Village. Perusal of the records would indicate that, the plaintiff and his brothers have purchased the schedule land bearing Sy.No.40/1 as per registered Sale Deed dated 26.04.1973. It is the case of the plaintiff and his brothers that they were the tenants of the land bearing Sy.No.40/1, and pursuant to the partition in the family, plaint 1-A property was allotted to the
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 share of plaintiff.
16. Insofar as, the finding recorded by the Trial Court that the plaintiff is having prescriptive right of way in the suit schedule, I have carefully examined the evidence of PW2 and PW3, who have stated that the plaintiff has no way to reach his land, in the absence of easmentory way as claimed in the plaint sketch. It is also pertinent to mention here that the learned Trial Judge at paragraph No.8 of judgment and decree, gave a finding that the road from Haveri to Mallapur is not conducive for the plaintiff to reach his land and further Trial Judge himself has visited the suit land for inspection and arrived at a conclusion that the plaintiff is having right of way as claimed in the plaint and the said judicial notice made by the learned Trial Judge after conducting spot inspection, cannot be ignored and after appreciating the oral and documentary evidence on record, I am of the opinion that, the Trial
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 Court has rightly arrived at a conclusion to decree the suit. However, same has not been properly re- appreciated by the First Appellate Court and the First Appellate Court, without appreciating the material on record has arrived at an erroneous conclusion that the plaintiff has not proved that the plaintiff was used the suit way to reach his land and the said finding of fact by the First Appellate Court requires to be set aside in this appeal, as the same is contrary to the factual aspects on record.
17. Further, the First Appellate Court, wrongly arrived at a conclusion that, the plaintiff was making use of APMC road to enter into suit way and the said finding recorded by the First Appellate Court is contrary to the evidence on record, particularly, deposition of PW2 and PW3. That apart, this Court has appointed a Court Commissioner to visit the suit land and to file a report. I have carefully examined
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 the Commissioner Report dated 12.9.2024 wherein, the Commissioner opined that there is no alternative road for the plaintiff to reach his land other than the suit way and also the court commissioner enquired with the defendants at the time of spot inspection. The entire case of the defendants revolves around the fact that once the layout is formed in their schedule property and thereafter, the plaintiff would get right of way through the residential layout that may be formed in the adjunctive lands of the plaintiff land, which shall not be accepted at this stage as the plaintiff is having prescriptive easementary right of way.
18. Having taken note of the factual aspect on record, on Southern part of the land bearing Sy. No.45/2+3, wherein, the defendants contending that a layout would be formed in future and the said aspect cannot be considered to deny relief to the plaintiff's right of way. The Court Commissioner after
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 visualizing the fact that there is no road between Sy. Nos.40/2 and 40/1 rightly come to the conclusion that the plaintiff has no approachable road to reach his land except the suit way and therefore, I find force in the submission made by the learned counsel appearing for the appellant/plaintiff. At this juncture, it is relevant to cite the judgment of the Hon'ble Supreme Court in the case of Justiniano Antao (supra) wherein the Hon'ble Supreme Court at paragraph No.9 held as follows;
"9. We have gone through the three judgments i.e. trial court, first appellate court and that of the High Court. We have gone through the evidence adduced. From this, it is more than clear that there is no specific averment in the plaint or in the statement of the witnesses showing that this access from the land of the defendants was used as of right for the last 20 years. The evidence very categorically shows that the plaintiff has an access on the south-east side and this was being used by her for a long time. It was pointed out that only in the year 1984 had the plaintiff started using the access through the property of the defendants. It is also
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 admitted that the defendants were during that time on board a ship and as soon as they came back and saw the use of their land by the plaintiff, they put obstructions to it. Therefore, it is clear that it is not the case that the plaintiff has been using the access as of right through the property of the defendants for more than 20 years. Since the plaintiff has an access through the southern side of her property, we see no reason why the property of other persons be used as an access to her house. If the plaintiff had no access to her house except through that of the property of the defendants then perhaps we would have considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of right for the last 20 years. More so we find from the material placed on record and especially the photographs which have been exhibited and marked as Ext. DW 3/A in the
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 court that there are two pillars showing the existence of a gate in the southern side but it has been closed down by rubble stones. The defendants have put up a strong case that the plaintiff has an opening in the southern side and it is amply established that there exist two pillars showing the existence of a gate which has been covered by rubble stones in the southern side. It was also pleaded that the plaintiff was using the same and it is only after 1984 she got the gate constructed through the land of the defendants. Therefore, on the basis of the evidence and statement of the witnesses, we are satisfied that the first appellate court has correctly approached the matter and the view taken by the High Court as well as the trial court does not appear to be based on correct appre ciation of facts."
19. On similar lines, this court in the case of Sri. N. Vijendra Rao Vs. Vasudeva Pal and Others (supra), made a distinction insofar as easement by prescription and necessity under paragraph Nos.41 to 52 reads as under;
"41. DW-1 who is the son of the 1st defendant, has specifically admitted that he was present when the ADLR
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 visited the spot and that he (ADLR) did not ask him anything about the road on the western side of Survey No. 99/13. He has admitted that there is a compound wall in between Survey Nos. 99/12 and 99/13 and that there is an old mango tree adjacent to the side wall and also few coconut trees. He has admitted that in Ex.D12, it is not shown that the road runs in Survey No. 99/13. He has admitted that in Ex.D7, the road spoken to by him is not shown. He has admitted that his father purchased the property from Sheikh Golal, and that the plaintiff has put up a gate on either side of the gate, stone pillars are erected.
42. DW-4, Rashid Ahamad Boloor is the son of Sheikh Boloor. In his cross-examination, he has admitted that when he purchased the property, the plaintiff was using the road existing on the north side of Survey No. 99/9 and that road was in existence from Survey Nos. 99/9 to 99/13 and the plaintiff was using the same. He has specifically admitted that in the sale deed executed by his mother to the plaintiff, nothing is mentioned about the road leading from Survey Nos. 99/9 to 99/13.
43. In criminal cases, prosecution is expected to prove the guilt of the accused beyond all reasonable doubt, and a higher degree of proof is required. Evidence recorded in civil cases is to be assessed on the touchstone of intrinsic probabilities. Whose case is more probable will have to be found out applying the principles enunciated by the Hon'ble apex court in the case of NARAYAN BHAGAWANTRAO GOSAVI (supra). as held in the said
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 decision, the burden of proof is the legal burden which remains constant and the moment the initial burden is discharged, the onus goes on shifting on the basis of the evidence placed on record by the parties.
44. In the present case, the plaintiff is examined and has produced voluminous documentary evidence. The evidence of material witness, i.e. PW-2 who was a tenant under the plaintiff, has virtually remained unchallenged. Defendants have tried to take advantage of non- mentioning of 12 feet wide road in the sale deed obtained by the plaintiff and also in the exchange deed as the road connecting Kolur-Ferry Road on the southern side of the defendants' property. This cannot be blown out of proportion to non-suit the plaintiff.
45. Sri. lnavally T.N. a practicing advocate of Mangaluru Bar had been appointed as court commissioner when an interim order was granted by the trial court and he had submitted a detailed report along with a sketch. He was asked to visit the spot again after appearance of the defendants. The ADLR also chose to file a detailed report. Apart from this, the very licence obtained by the 1st defendant from the Municipal Corporation, Mangaluru, to renovate his house, depicts the existence of a road linking Kolur-Ferry Road and Survey No. 99/9 on the eastern side of his property. The trial court has specifically held that the defendant has thoroughly failed probablise existence of the road which is immediately on the eastern side of the laterite stone wall put up in between Survey Nos. 99/12 and 99/13. Some important
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 and useful admissions elicited from the mouth of DW1- 3rd defendant and his witnesses have been brushed aside by the first appellate court while upturning the well considered passed by the trial court.
46. Section 13 of the Indian Easements Act, 1882, speaks of easement of necessity and quasi-easements. Section 15 of the said Act speaks about acquisition of easement by prescription. The plaintiff herein has averred that he has acquired easement by way of prescription on the ground that he has had been using the access measuring 12′ feet in width indicated by the letters 'RRR' running from Kolur-Ferry Road to his house on the eastern edge of the defendants' property for more than 20 years. Section 15 of the Easements Act, with illustration 'A,' is reproduced below:
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, an easement and as of right, without interruption, and for twenty years,
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 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.- 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 fulfillment 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 thereon and of the person making or authorising 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
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 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. Illustrations-A A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto, as an easement and as of right, without interruption, from 1st January, 1862 to 1st January 1882. The plaintiff is entitled to judgment.
47. The words 'as an easement' appearing in Section 15 are indicative of the fact that the right must be enjoyed by a person in his capacity as owner of certain land (called dominant heritage) for the beneficial enjoyment of the land over certain other land not of his own. The true meaning of the expression 'as of right' is that the enjoyment of the right should not be a secret or by stealth or by sufferance or the leave and licence of another person. Therefore, the animus of the person exercising the right, which is a question of fact, is required to be determined from the circumstances proved on record of each case. If positive evidence to prove this fact is not available, the court is within its rights to draw a presumption from long continuous user
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 of a right that such user which was open, peaceable and unobstructed must be in conscious exercise of right.
48. Therefore, the animus of the person exercising the right which is a question of fact, is required to be determined based on the degree of proof in each case. The person who claims to have acquired easement by way of prescription must necessarily aver that he had had been using the property of the other openly, peaceably and without interruption.
49. A person who claims prescriptive right of easement is expected to prove that it is a right and that is is being used for more than 20 years up to the time within 2 years next to the institution of the suit where the claim is contested. The difference between customary easement and prescriptive easement is that persons claiming customary easement are not only expected to prove the elements as set out in Section 15 of the Easements Act, but also something more, that is to say, customs set up was reasonable, certain and compulsory. For a person claiming easement by way of prescription, it is not necessary that the user should be exclusive, but the person who exercises it under some claim existing in his own favour independently of all others.
50. The plea of prescriptive easement and customary easement are contradictory and inconsistent with each other and hence both cannot co-exist. In the present case, the plaintiff has specifically averred in paragraph 3(a) of the plaint that apart from the roadway indicated by the letters 'RRR,' there is no other road or approach
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 connecting from Kolur-Ferry Road which is a public road and that it is absolutely meant for better enjoyment of 'A' schedule property. In paragraph 3(h), plaintiff has specifically averred that he has been enjoying the said road as an easement openly, peaceably and without any interruption for the past 20 years and has acquired absolute prescriptive right. The prayer sought for in paragraph 6(a) is declaration that the plaintiff has acquired absolute right of easement over the roadway indicated by the letters 'RRR' by way of prescription and for consequential permanent injunction.
51. Learned counsel representing the defendants, Mr. Mohan Bhat has relied on a decision of the Hon'ble apex court in the case of BACHHAJ NAHAR v. NILIMA MANDAL (CDJ 2009 SC 194 = 2009 (1) SCJ 368). In paragraph 14, the Hon'ble apex court has specifically held that pleadings necessary to establish 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 20 years (ending within 2 years next before the institution of the suit). He 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
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 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.
52. The case of the plaintiff in the present case is that 'A' schedule property was purchased by him in the year 1973 from its owner who had in turn acquired it by way of exchange deed in the year 1956. In both the documents, there is a specific reference about the existence of a connecting road. Just because it is not mentioned as a road linking the plaintiff's property with Kolur-Ferry Road, it cannot be said that the plaintiff has failed to prove existence of the disputed road. as already discussed, the 1st defendants has taken a specific plea that there is a separate way leading from Survey Nos. 99/9 to 99/13, but he has not been able to probablise even remotely the existence of any road in Survey No. 99/13. All the requirements, as indicated in paragraph 14 of the decision in the case of BACHHAJ NAHAR (supra) are found in the plaint filed in the present case."
20. Following the declaration of law referred to above, I am of the view that, the First Appellate Court has committed an error in re-appreciating the material
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NC: 2025:KHC-D:2634 RSA No. 1444 of 2006 on record in a right perspective and has erred in considering the oral and documentary evidence and therefore, the substantial question of law framed above favours the plaintiff. Hence, I pass the following:
ORDER
i) Regular Second Appeal is allowed.
ii) Judgment and decree dated 03.12.2005 passed in RA No.1 of 1980 on the file of the Civil Judge (Sr.Dn) Haveri, is hereby set aside.
iii) Judgment and decree dated 09.11.1979 passed in OS No.85 of 1976 on the file of the Principal Munsiff and JMFC, Haveri, is hereby confirmed. Suit in OS No.85 of 1976 is hereby decreed.
Sd/-
(E.S.INDIRESH) JUDGE SB