Karnataka High Court
Sri Yallappa S/O Ramappa Mallad vs Smt Laxmibai on 1 July, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 2077 of 2006
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
R
DATED THIS THE 1ST DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
RSA NO.2077 OF 2006 (DEC/INJ)
BETWEEN:
1. SRI. YALLAPPA S/O. RAMAPPA MALLAD,
SINCE DECEASED BY HIS LR'S.
1A. SMT. BASAWWA W/O. YALLAPPA MALLAD,
AGED 80 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
1B. SRI. RAMAPPA S/O. YALLAPPA MALLAD,
AGED 47 YEARS, OCC: AGRICULTURE,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
Digitally signed by
SAROJA
HANGARAKI 1C. SRI. MAHADEV S/O. YALLAPPA MALLAD,
Location: High
Court of Karnataka, AGED 45 YEARS, OCC: AGRICULTURE,
Dharwad Bench,
Dharwad R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
2. SRI. APPANNA S/O. RAMAPPA MALLAD,
SINCE DECEASED BY HIS LR'S.
2A. SMT. YAMANAVVA W/O. APPANNA MALLAD,
AGED 75 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
2B. SRI. LAXMAN S/O. APPANNA MALLAD,
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RSA No. 2077 of 2006
HC-KAR
AGED 38 YEARS, OCC:AGRICULTURE,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
2C. SRI. SADASHIV S/O. APPANNA MALLAD,
AGED 37 YEARS, OCC:AGRICULTURE,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
2D. SMT. RENUKA W/O. PUNDALIK GUDDAD,
AGED 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
2E. SMT. KALAVATI NESARGI W/O. MAHANTESH,
AGED 41 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
2F. SMT. RUKMAVVA W/O. KASTUREPPA NINGAPUR,
AGED 33 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
2G. SMT. CHANDRAWWA W/O. BASAVARAJ NAIK,
AGED 31 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
2H. SRI. SURESH S/O. APPANNA MALLAD,
AGED 35 YEARS, OCC:AGRICULTURE,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
3. SRI. VITHAL S/O. TUKARAM POTARAJ,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
...APPELLANTS
(BY SRI. AKSHAY KATTI, ADVOCATE FOR APPELLANTS;
APPEAL AGAINST A1 AND A2 IS ABATED)
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RSA No. 2077 of 2006
HC-KAR
AND:
1. SMT. LAXMIBAI W/O. RAMAPPA TUKAPPANAVAR,
AGED: 39 YRS, OCC: HOUSEHOLD WORK,
R/AT: JAMKHANDI, BY HER P.A. HOLDER,
SRI. RAMAPPA
S/O. GURUPADAPPA TUKAPPANAVAR,
AGED ABOUT 55 YRS, OCC: AGRICULTURE,
R/AT: VARTAK GALLI, JAMKHANDI
DIST: BAGALKOT.
2. SHRI PRASANNAKUMAR
S/O. RAMAPPA TUKAPPANAVAR,
AGED ABOUT 21 YRS, OCC: AGRICULTURE,
R/O: VARTAK GALLI, JAMKHANDI,
TQ: JAMKHANDI, DIST: BAGALKOT.
3. SHRI. IRAPPA
S/O. BASAPPA HALAGANNAVAR,
AGED: 52 YEARS, OCC: AGRICULTURE,
R/O: MAREGUDDI VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
4. SHRI. GURAPPA
S/O. BASAPPA HALAGANNAVAR,
AGED: 50 YEARS, OCC: AGRICULTURE,
R/O: MAREGUDDI VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
5. SHRI. MALLAPPA
S/O. BASAPPA HALAGANNAVAR,
AGED: 48 YEARS, OCC: AGRICULTURE,
R/O: MAREGUDDI VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
6. SHRI. LAXMAN S/O. KADAPPA KOTI,
AGED: 41 YEARS, OCC: AGRICULTURE,
R/O: SHIROL VILLAGE, TQ: MUDHOL,
DIST: BAGALKOT.
7. SHRI. BALAPPA
S/O. RAMCHANDRA SUTAR,
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RSA No. 2077 of 2006
HC-KAR
AGED: 44 YEARS, OCC: AGRICULTURE,
R/O: KADAKOL VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
8. SHRI. BALAPPA
S/O. SIDDARAMAPPA KUMBAR,
AGED: 32 YEARS, OCC: AGRICULTURE,
R/O: KADAKOL VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
9. SHRI. MALLAPPA
S/O. SIDDARAMAPPA KUMBAR,
AGED: 32 YEARS, OCC: AGRICULTURE,
R/O: KADAKOL VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
10. SHRI. SHESHAPPA CHANNABASAPPA ULLAGADDI,
AGED: 35 YEARS, OCC: AGRICULTURE,
R/O: ALAGUR VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
11. SHRI. JINNAPPA
S/O. BAHUBALI NYAMAGOND,
AGED: 50 YEARS, OCC: AGRICULTURIST,
R/O: MUTTUR VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
12. SHRI. NEMINATH
S/O. CHANDAPPA NYAMAGOND,
AGED: 34 YEARS, OCC: AGRICULTURIST,
R/O: ALAGUR VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
13. SHRI. ARIHANT
S/O. CHANDAPPA NYAMAGOND,
AGED: 32 YEARS, OCC: AGRICULTURIST,
R/O: ALAGUR VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
14. SRI. BASAVARAJ SIDDAPPA ATHANI,
AGED: 38 YEARS, OCC: AGRICULTURE,
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NC: 2025:KHC-D:8258
RSA No. 2077 of 2006
HC-KAR
R/O: VILLAGE MAREGUDDI, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 121.
...RESPONDENTS
(BY SMT. SONA VAKKUND, ADVOCATE FOR C/R1;
SRI. RAVI S. BALIKAI, ADVOCATE FOR R2;
V/O DATED: 01.07.2025 R3 TO R13 ARE DELETED)
THIS RSA IS FILED UNDER SECTION 100 THE CIVIL
PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE
DATED: 1.7.2006 PASSED IN RA.NO. 146/2005 ON THE FILE OF
THE PRL.CIVIL JUDGE (SR.DN.), JAMAKHANDI, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED: 21.9.2005 PASSED IN OS.NO. 89/2003 ON THE FILE OF
THE PRL.CIVIL JUDGE (JR.DN.), JAMAKHANDI and etc.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. Plaintiffs in O.S. No.89/2003 are before this Court in this appeal, being aggrieved by the judgement and decree dated 01.07.2006 passed in R.A. No.146/2005 on the file of Principal Civil Judge (Sr. Dn.), Jamakhandi (for short "the First Appellate Court"), by which the First Appellate Court while allowing the appeal filed by the -6- NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR defendants, set aside the judgement and decree dated 21.09.2005 passed in O.S. No.89/2003 on the file of Principal Civil Judge (Jr.Dn.) Jamakhandi (for short "the Trial Court") and consequently dismissed the suit.
2. Case of the plaintiffs is;
(a) That they are the owners in possession of the land bearing R.S. Nos.89/1, 89/3 and 89/4 while defendant No.1 is the owner of land bearing R.S. No.88/3B. These lands are situated in Mareguddi village. The defendants also own land in R.S. No.195 of Bundi village.
(b) The subject matter of the suit is boundary strip situated between Mareguddi and Budni villages, which is commonly used as a cart way by the owners of the adjoining lands as well as the public at large. That the said boundary strip which runs in an east - west direction, with a hedge, is shown by letters "ABC" in the hand sketch annexed to the paint.
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR
(c) That the said "ABC" cart way has been in continuous, peaceful, open, and uninterrupted use by the plaintiffs for more than 50 years, as such they have acquired right of usage of the said cart way at "B and C" by virtue of immemorial user.
(d) That the defendants without having any right are interfering with plaintiffs' use of the said strip, as a cart way are causing obstruction to the plaintiffs at point "B" and "C" in using the said strip for access to Mareguddi - Shirol Road.
(e) Contending as above, the plaintiffs have sought for the following relief:
a. That declaration be made that the plaintiffs have obtained a right of easement at 'B.C' in the hand sketch map by immemorial user and on consequential basis.
b. A decree of permanent prohibitory injunction may kindly be granted in favour of the plaintiffs restraining the defendants and their agents and anybody else on behalf of them -8- NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR from interference and obstruction of use of "ABC" cart passage on both village boundary strips as an easementary right.
c. Costs of the proceedings may kindly be given to the plaintiffs from the defendants.
e. Any other just and equitable reliefs may kindly be give to the plaintiffs to meet the ends of justice and equity as the Hon'ble Court deems fit and proper reliefs from the defendants.
d. The liberty to amend plaint is deserved with prior permission of the Hon'ble Court by the plaintiffs.
3. Defendant Nos.1 and 2 in their written statement denying the plaint averments with regard to the existence of a cart way on the line "ABC" mentioned in the plaint hand sketch, contended;
(a) That the plaintiffs have suppressed of true and material facts. It is claimed that the area shown between the letters "B and C" in the plaint hand sketch absolutely belongs to the defendants and -9- NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR is in their exclusive possession. That no cart way as claimed by the plaintiffs ever existed at anytime, as such the plaintiffs' claim of using the said cart way since time immemorial is denied.
(b) That land in R.S. No.88/2B was purchased by defendant No.1 in the year 1986. Ever since then the said land is in his exclusive possession without anyone else having any claim or right over the same.
(c) That the land in Sy.No.194-195 are the ancestral properties of the defendants. That the said land is sloping towards north in order to preserve the soil and for the purpose of cultivation a mud bund running east to west having height of 5 to 6 foot has been constructed. That half of land in RS No.88/2B is sloping towards south and the other half towards the north. That if a path way is provided between these properties in Sy.Nos.195 and 88/2B, there is a possibility of
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR creation of a stream causing permanent damage to the mud bunds.
(d) Referring to the hand sketch produced along with the written statement, the defendants have contended that there existed Ghataprabha Left Bank Canal (GLBC) constructed during the year 1957 as shown in letters "X" "Y" "Z" and since then said Malapura Road between "Y" and "O" was not in existence. As such the claim of the plaintiffs of they using the said cart road does not arise.
(e) That at point shown by letter "Y" a pool was constructed across the said canal in the year 1999-2000 and it was only then, the said road has become accessible. That even prior to 1957, the ancestors of the plaintiffs were using the road to reach their land at "G and K" through "V" point. That after construction of canal in the year 1957 they used the road at point "N and M"
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR through "Q" point to reach their lands at point "I"
and "G". That even today, the plaintiffs were using the said way at point "N, Q, I and G" to reach their land.
(f) That the predecessor in title for the land in R.S. No.88 was also using the way shown at point "Q", "I" and "G". That defendants even after purchasing the land in R.S. No.88/2B from its earlier owners have been utilising the way shown at point "Q", "I" and E" to reach the land at Sy.Nos.194 and 195, and from there they used point "P" to cross through the canal over the pool and access the points shown at "S", "O" and "T", as such the claim of the plaintiffs that they have been using the portion of the property belonging to the defendants at point "B" and "C" since time immemorial, is untenable.
(g) That plaintiff No.1 constructed a residential house in the year 2001 at point "L" is now
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR making a false claim of the existence of the road at point "B and C" with an intention of causing hardship to the defendants at the instigation of some of the persons with vested interests in the said village. Hence, the defendants seek dismissal of the suit.
4. The Trial Court framed the following issues and the additional issues for its consideration.
ISSUES
1. Whether the plaintiffs prove that plaintiffs have got easementary right at "B.C." as shown in the hand sketch map by immemorial user?
2. Whether the plaintiffs further prove interference by the defendants?
3. Whether the plaintiffs are entitled to the relief-
sought for?
4. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendant No.1 proves that the suit is time barred?
2. Whether the Court fee paid is incorrect?
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5. Plaintiff No.1 examined himself as PW1 and five witnesses as PW2 to PW5 and exhibited 9 documents marked as Exs.P1 to P9. On behalf the defendants, two witnesses have been examined as DW1 and DW2 and exhibited 15 documents, marked as Exs.D1 to D15.
6. The Trial Court, on appreciation of the evidence, answered issue Nos.1 to 3 in the affirmative and additional issue Nos.1 and 2 in the negative and consequently, decreed the suit, as prayed for.
7. Being aggrieved, the defendants preferred an appeal in R.A. No.146/2005 before the First Appellate Court. The First Appellate court framed the following points for its consideration:
1. Whether the appellant establish that the judgement and decree of the lower Court is not on the oral and documentary evidence and on the settled principles of law to grant relief of right of way through immemorial use openly, continuously, peacefully without obstruction hence, it is liable to be set aside?
2. What decree or order?
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8. On re-appreciation of the matter, the First Appellate Court answered point No.1 in the affirmative and consequently allowed the appeal by setting aside the judgment and decree passed by the Trial Court, and dismissed the suit. Being aggrieved by the same, the plaintiffs are before this Court in this Regular Second appeal.
9. This Court by order dated 01.04.2009, admitted the appeal for consideration of the following substantial question of law:
(1) Whether the Appellate court was right in law in reversing the decree granted by the trial Court by non-consideration of the relevant material on record?
(2) Whether the Appellate court was right in law in the interpretation made with reference to Exs.P8 & P9?
10. Learned counsel Sri. Akshay Katti, appearing for the appellants / plaintiffs, taking this Court through the pleadings, deposition and the documents, submitted;
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(a) That the plaintiffs have sought for declaration of their easementary rights over the portion of the property belonging to the defendants, marked by letters "B" and "C" in the hand sketch as the plaintiffs and their ancestors have been using the same as cart way since time immemorial, for over 50 years.
(b) That the Trial Court on appreciation of the evidence of the plaintiffs' witnesses including PW2 to PW5, had rightly come to a conclusion with regard to existence of said cart way. Therefore, the First Appellate Court ought not to have reversed the said finding in the absence of any contrary material evidence being produced by the defendants.
(c) That the First Appellate Court primarily relied upon the contents of Exs.P8 and P9 to come to the conclusion that, the plaintiffs themselves had sought for formation of a road to have access to
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR their land, and as such, erroneously presumed the non-existence of the road at point "B" and "C". That the said documents only evidence the fact that the plaintiffs had sought intervention of the Panchayats and the Tahsildar for formation of a new road and the same cannot under any circumstances be construed to mean as an admission by the plaintiffs regarding non- existence of the road.
(d) That this understanding and construction of the contents of Exs.P8 and P9 by the First Appellate Court is erroneous, perverse and contrary to the material evidence made available on record.
(e) That the First Appellate Court has misdirected itself by reading the provisions of Section 15 of the Easements Act, 1882 (for short, 'the Act, 1882') without appreciating the fact that right of easement can also be acquired by the means other than what is envisaged under Section 15 of
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR the Act, 1882. He further submits that the specific case of the plaintiffs is that they have acquired the right of easement through usage since time immemorial which mode of acquisition is also recognised under law.
(f) Relying upon the judgement of the High Court of Kerala in the case of Vatghese Vs. Jose Mathew reported in 2014 (3) KLJ 713 as well as the judgement of the High Court of Gujarat in the case of Gopalbhai Jikabhai Suvajiya Vs. Vinubhai Nethabhai Hirani reported in 2018 GUJHC 40920 (neutral citations) he submits that the First Appellate Court has failed to apply the doctrine of lost grant.
(g) That in the instant case as there is no rebuttal to the case of the plaintiffs of they having been using the portion at point "B" and "C" since time immemorial. That the First Appellate Court erred in reversing the judgement and decree passed
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR by the Trial Court by wrongly appreciating contents of Ex.P.8 and P9. As such he insists that the substantial questions of law be answered in negative and in favour of the appellants/plaintiffs and confirm the decree passed by the Trial Court by setting aside the judgment and decree passed by the First Appellate Court.
11. Smt. Sona Vakkund, learned counsel appearing for the defendant No.1, through video conference extensively taking this Court through the records, submits;
(a) That the very premise on which the suit is framed is untenable inasmuch as, the plaintiffs have not pleaded clearly as to against whom and on what basis they are seeking relief of declaration of their easementary rights.
(b) That the plaint lacks required pleading and the plaintiffs are attempting to improve upon their case after the defendants bringing on record the
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR actual and true facts of the matter. That the evidence of the witnesses examined by the plaintiffs cannot be considered as there is no pleading to support the version of the said witnesses.
(c) That the plaintiffs without first making out the existence of a grant at any earlier point of time cannot rely upon the doctrine of lost grant, and such a plea is unknown to law.
(d) Taking through the depositions of PW1 and PW2, she submits that, the said witnesses have unequivocally admitted the existence of the canal since the year 1960 making it impossible to use Mareguddi - Shirol road. That the witnesses have also admitted that only after construction of the pool in the year 2000 they are able to have access to the said road. That in the light of said admission being available on record which runs contrary to the pleadings of
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR plaintiffs' claim of utilization of the said road since time immemorial, cannot be accepted.
(e) She also points out from the deposition with reference to the hand sketch produced along with the written statement and submits that even according to PW1 they were utilizing the pathway shown at the point "Q", "I" and G"
inasmuch as, the plaintiff No.1 earlier had his house on the northern of portion of his property marked by letter "K" and that it is only a few years prior to filing of the suit plaintiffs constructed a house on the southern end of his property at point shown at letter "L" and thereafter, started making his claim over the portion of the property belonging to the defendants at point "B" and "C".
(f) That Ex.P8 and P9 would put the case at rest inasmuch as, the plaintiffs themselves have sought the intervention of the local authorities
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR for formation of a road and in response to which admittedly authorities directed the plaintiffs to seek intervention of their higher officers.
(g) That it is not the case of the plaintiffs that they are not having any other alternate access to their lands inasmuch as, the evidence on record would indicate that the plaintiffs and the other landowners have been utilizing the pathway shown in the hand sketch of defendants on the northern end of the land bearing Sy.No.88/1. That it is only at subsequent stage of the proceedings the plaintiffs are trying to make out a new case of they utilizing the pool alleged to have been in existence about a furlong away from the point "Y" and there is absolutely no pleading to that effect in the plaint.
(h) Relying upon the judgment of the High Court of Calcutta in the case of Asrab Ulla Vs. Kismat Ulla Haji Chaudhuri reported in AIR 1937 Cal
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR 245 and the judgement of the Hon'ble Apex Court in the case of Raja Braja Sundar Deb Vs. Moni Behara and Others reported in 1951 SCC 273, she submits that the trial Court had decreed the suit contrary to the provisions of law and in the absence of pleading which has been set at right by the First Appellate Court and in the absence of appellant/plaintiffs pointing out any perversity no interference is warranted. Hence, seeks for dismissal of the appeal.
12. Sri. Ravi S. Balikai, learned counsel appearing for defendant No.2 supplementing the submission made by Smt. Sona Vakkund, learned counsel for the defendant No.1 points out that;
(a) the plaintiff No.1 himself had facilitated in purchase of southern portion of the property bearing Sy.No.88/2B by the defendant No.2 and admittedly PW1 himself in the deposition has stated that there existed no road as shown by
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR him in the hand sketch at point "B" and "C" at the time of execution of said deed of sale.
(b) He further points out that it is only southern portion of the land in Sy.No.88/2 was purchased by the defendants while their vendor has retained the northern portion of the land in Sy.No.88/1 and the said vendor of the defendants is still using the access at point "G" and "I" to reach Yargattti - Mareguddi road running west to east on the northern end of the land.
(c) That there is no difference between the hand sketches produced by the plaintiffs as well as the defendants except the plaintiffs have only shown the southern portion of the sketch without disclosing the factual aspect with regard to existence of road on the northern side of the lands. That since the granting of right of easement would affect the proprietary rights of
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR the defendants and in the absence of specific pleading and case being made out the Courts have to be circumspect while accepting the plea of easement .
(d) He relies upon the judgement of the High Court of Apex Court in the case of Bondar Singh and Others Vs. Nihal Singh and Others reported in (2003) 4 SCC 161, in support of submission that in the absence of clear plea no amount of evidence can be looked into. Hence seeks for answering the substantial question of law in the affirmative and dismissal of the appeal.
13. Heard. Perused the records.
14. It is appropriate to scan and extract the hand sketch produced by the plaintiffs along with the plaint as well as the hand sketch produced by the defendants along with the written statement:
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 Hand Sketch of plaintiffs HC-KAR Hand Sketch of defendants
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15. The specific case of the plaintiffs is that they are the owners of land in RS Nos.89/4, 89/3 and 89/1, while the defendant No.1 is the owner of land bearing R.S.No.88/3B which are situated in Mareguddi village. That the defendants are also the owners of land in RS No.195 of Budni Village, which is abutting "ABC" hedge/strip (shown in both the aforesaid hand sketches). That the said hedge/strip shown by letter "ABC" is being used as a cart way not only by the plaintiffs but also by owners of the adjoining lands and public at large since time immemorial.
16. The plaintiffs have further specifically pleaded that they have been using the strip shown at letter "ABC" for over 50 years openly as of right without any interruption from anyone whomsoever including the defendants.
17. Necessary at this juncture to note that it is neither the case of the plaintiffs that they have acquired easementary right of way by prescription as envisaged under Section 15 of the Act, 1882 nor is it their case of easement by necessity. Therefore, it is incumbent upon the
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR plaintiffs to bring on record of they acquiring their easementary right of way by immemorial use.
18. In this regard, learned counsel for the plaintiffs/appellants relies upon the judgement of the High Court of Kerala in the case of Varghese (supra) and the judgement of the High Court of Gujarat in the case of Gopalbhai (supra).
19. Paragraph Nos.18, 19 and 20 of the judgement of the High Court of Kerala in the case of Varghese (supra) relied upon by the learned counsel for the appellants/plaintiffs is reads as under:
"18. A reading of the above literature on the subject leaves one no doubt that merely because Section 15 of the Easements Act is not attracted, it may not be proper to decline relief to the plaintiff if other ingredients as mentioned by the authors referred to above are satisfied. If it is proved that there does exist a way as alleged in the plaint and it has been used for considerably long period i.e. over 20 years, then merely because the ingredients to attract Section 15 are not established, will the court be justified in declining relief?
19. The answer seems to be in negative. In such cases, the courts have invoked the theory of lost grant for granting relief to the parties. When it is shown that a pathway is in existence and it has been used for a long time, the initial presumption drawn is unless shown otherwise it is used as of right.
20. In the case on hand, the plaintiff has alleged in the O.S. that at the time of evidence, plaint item No.2 does exist and he has been using it for more than 20 years as means of access to his
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR property. His further case is that that is the only means of access to his property. The question as to whether in such cases where the ingredients of Section 15 of the Easements Act are not available, whether any relief can be granted to a person who claims to have a right of way were considered in the decision in Gayadhar Nayak and others vs. Bhagaban Rout and others (AIR 1963 Orissa 155). Almost on identical facts, it was held that the plaintiff is entitled to relief. In the said decision, the trial court dismissed the suit but the lower appellate court having found existence of pathway for more than 30 years and that it has been used by the plaintiff, invoked the doctrine of lost grant and granted relief to the plaintiff reversing the decree of the trial court. That was challenged before the High Court. Referring to the decision in Rajrup Koer vs. Abdul Hossein (ILR 6 Calcutta 394(PC)), it is observed as follows:
"His Lordship relied upon a decision of the Privy Council reported in Rajrup Koer vs. Abdul Hossein, ILR 6 Cal 394(PC)), and held that the provision of the Limitation Act regarding the acquisition of right of easement was not exhaustive and such right may be acquired by long enjoyment which under the circumstances of each case may lead to a presumption of lost grant or agreement. Thus a person claiming an easement may establish his right in a number of ways. He may claim an easement by the prescriptive methods defined in S.15 of the Easements Act or may claim a right independent of that Section. He may prove the grant by grant of a document, by oral evidence and from the available evidence adduced before the Court, the Court may have come to its own conclusions"
.
20. Similarly, paragraph No.18(E) under the heading 'how an easement is acquired' in the judgment of the High Court of Gujarat in the case of Gopalbhai (supra) is extracted hereunder:
"18 (E). By lost grant, presumed from immemorial user :
A right of easement is also created by grant. A grant of such right is presumed from long use or possession although the actual transaction of making such a grant cannot be discovered. If a party has been using a particular land for a particular purpose from time immemorial, it can be said that he has
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR earned that right on the basis of doctrine of lost grant. There is no period fixed for the immemorial".
21. Learned counsel for the appellants referring to the aforesaid extracts of the judgements vehemently submits that the case of the plaintiffs squarely falls within the law expounded in these two judgements. That the averment made in the paragraph No.2 of the plaint read in the light of aforesaid principles, he submits would leave no doubt that the plaintiffs are entitled for declaration of their easementary right on the principles of usage of the said cart way since time immemorial.
22. Aforesaid judgments relied upon by the Learned counsel for the appellants proceed on the premise of considering their claim for easementary rights on the principles of immemorial user applying doctrine of Lost Grant.
23. In response, learned counsel for respondents/defendants relied upon the judgements of High Court of Calcutta in the case of Asrab Ulla (supra)
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR wherein dealing with the claim for grant of easementary rights of pasturage by a body of villages applying doctrine of lost grant as far back as in the year 1937, observed and held as under:
The second contention of Mr. Sen raises an interesting point as to whether the rights of pasturage, claimed by a whole body of villagers, can be acquired by grant either express or presumed. We may say at once that the rights claimed by the plaintiffs are certainly not easements in the proper sense of the word. They are not privileges attached to individuals in respect of their lands. These are rights claimed for a fluctuating class of persons in respect of a locality. They come under the description of the second class of rights intermediate between public and private rights, as enunciated in the well known case in Chunilal v. Ram Kissen and they attach to certain classes of persons or portions of the public and have their origin ordinarily in custom. But can there be a presumption of lost grant in cases of such rights when long user is proved?
As the Judicial Committee explained in Mahommad Muzafferal Musavi vs. Jabeda Khatun the presumption of an origin in some lawful title to support possessory rights long and quietly enjoyed, where no actual proof of title is forthcoming, is not a mere branch of the Law of Evidence. It is resorted to because of the failure of actual evidence. It is not a presumption to be capriciously made and the Court must be satisfied that such a title was in its nature practicable and reasonably capable of being presumed without doing violence to the probabilities of the case. "It is a principle, which,"' says Lord Loreburn, L.C. in Harris v. Earl of Chesterfield.
is based on good sense. The lapse of time gradually effaces records of past transactions and it would be intolerable if any body of men should be dispossessed of property which they and their predecessors have enjoyed during all human memory, merely upon the ground that they cannot show how it was originally acquired. That is the reason why the law infers that the original acquisition was lawful unless the property claimed is such that no such body of men could lawfully acquire it, or the facts show that it could not have been acquired in the only ways which the law allows.
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR Thus in order that there may be a presumption of lawful origin, it is necessary to establish that there was no legal bar in the way of valid grant at its inception, and that not only there was a capable grantor but there was a capable grantee also in whose favour the grant could have been made. If for any reason a valid grant could not have been made no presumption of such a grant can arise. Now it has been held in England, as early as in the year 1590, that the inhabitants of a village could not eo nomine acquire by prescription a right of way, the inhabitants not being capable grantees: vide Foxall v. Venables (1590) Cro Eliz 180. In Mounsey v. Ismay, the citizens of Carlisle for themselves and their neighbours claimed a right by custom to hold horse races on a certain day every year in the land in suit in respect of which an action for trespass was brought by the plaintiff. Martin B. in giving judgment for the plaintiff held inter alia that: Such a right as was set up by the defendants could-
only exist by custom, a grant of such right to the freemen of Carlisle, or the citizens of Carlisle would be void. Such indeterminate bodies as the freemen of a city not being themselves a corporation are incapable of being grantees.
This view was reiterated in (1911) A C 6234 where the free holders of five parishes adjoining the river Wye claimed a fishery right with reference to a non-tidal portion of the river. The right was exercised admittedly for several centuries openly, uninterruptedly and as of right, and the question was whether a presumption of lost grant could be made. The House of Lords decided by a majority that no presumption of lost grant was available in the case, inasmuch as the free holders of several parishes who were an indefinite and fluctuating body of persons could not be proper grantees in law. Lord Ashbourne, whose was one of the dissenting judgments, made a suggestion that the King might have made a grant to the free holders of the area of fishing in gross, and this may have made them a corporation or the King may have made a grant to an existing corporation upon trust for the free holders. It was pointed out on the other hand by Lord Gorell, who sided with the majority, that there was no trace of any corporation existing at any time; and the right was asserted by individual free-holders as appurtenant to their respective free holders. There was no foundation for the case, that the presumed grant from the King would incorporate the free holders quoad the grant. In this Court the point came up for decision in Lutchmeeput Singh v. Sadaulla Nushyo (1883) 9 Cal 698 which arose out of a suit instituted by the plaintiff for restraining the defendants from fishing in certain waters within the ambit of the plaintiff's zemindary. The defendants contended that they had acquired a prescriptive right of fishing in the beels under a custom according to which all the inhabitants of the
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR zemindary had the right of fishing. On the point as to whether there could be a presumed grant from long user the learned Judges observed as follows:
Then again from the length of user it cannot be presumed that there was a grant by the Sovereign power. It seems to us that the presumption of a grant is impossible; because it cannot be shown that there was some ascertained grantee or grantees. The Subordinate Judge was of opinion that the tenants of the several parganas in whose favour the right in question is claimed must be considered to constitute a unit, that is to say he considers that they form a corporate body. We fail to see any tangible ground for the assumption. For instance it may be that such a grant may be presumed in favour of a village community if such community be shown to possess all the essentials of a corporate body; but we do not see any reason suggested by any evidence on the record which can support the conclusion that the tenants of the different parganas in whose favour the right in question is claimed form anything like a corporate body.
This reasoning applies fully to the facts of the present case, and we are of opinion that no lost grant could be presumed in favour of a fluctuating and unascertained body of persons who constitute the inhabitants of a particular village. Our attention has been drawn to a decision of the Judicial Committee reported in Bholanath Nundy v. Midnapur Zemindary Co. (1904) 31 Cal 503, where the plaintiffs claimed a right of pasturage over the waste lands of the village which belonged to the defendants on ground of immemorial user. Their Lordships observed in the course of their judgment in this case that:
On proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the Court finding a legal origin for the right claimed.
It must be remembered however that there were seven suits commenced by different sets of plaintiffs out of which this appeal arose, and they were subsequently consolidated for purposes of hearing. The right of pasturage was claimed as an easement by each individual villager as appurtenant to his tenancy, and the allegation was that the plaintiffs and their predecessors had been enjoying the right of pasturage over the waste lands of the village from time immemorial. The trial Court held that the right was established under Section 26, Lim. Act, and their Lordships of the Judicial Committee restored this judgment with a direction that the defendants would be
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR competent to improve these waste lands, provided sufficient lands were left for pasturage. It would be clear from the judgment, that this was not a right claimed in gross by the villagers in general in respect of a particular locality, and as such the observation of their Lordships do not in any way militate against the view we have taken, viz. that there could be no presumption of a lost grant in favour of the inhabitants of a particular village. In our opinion therefore the second ground urged by Mr. Sen is sound and must prevail. But we cannot, on this ground alone, reverse the decision of the Court below, inasmuch as it has found in favour of the plaintiffs on the ground of custom also."
(emphasis supplied)
24. The said principle of law have been applied by the Constitution Bench of the Hon'ble Apex Court in the case of Raja Braja Sundar Deb (supra) vide in paragraph Nos.25, 26, 27 and 28 it is held as under:
"25. It is now convenient to consider the different points canvassed before us by the learned counsel appearing on behalf of the parties. We find it difficult to uphold the view of the High Court that the defendants were in possession of the disputed fishery under a lost grant. This doctrine has no application to the case of inhabitants of particular localities seeking to establish rights of user to some piece of land or water.
26. As pointed out by Lord Radcliffe in Lakshmidhar Misra v. Rangalal [Lakshmidhar Misra v. Rangalal, (1948-49) 76 IA 271 : AIR 1950 PC 56 : 1949 SCC OnLine PC 44] the doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and that since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant, and that a right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, there being no admissible grantees.
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR
27. Reference in this connection may be made to a Bench decision of the Calcutta High Court in Asrabulla v. Kiamatulla Haji Chaudhury [Asrabulla v. Kiamatulla Haji Chaudhury, AIR 1937 Cal 245 : 1937 SCC OnLine Cal 9] wherein the law on this subject has been examined in some detail. In that case the question arose whether the right of pasturage claimed by a whole body of villagers could be acquired by grant, express or presumed. After an examination a number of English and Indian cases it was held that no lost grant could be presumed in favour of a fluctuating and unascertained body of persons who constitute the inhabitants of a village and that such a right could only be acquired by custom.
28. The defendants in this case are a fluctuating body of persons and their number increases or decreases by each birth or death or by influx or efflux of fishermen to or from these villages. From the evidence of DW 11 it appears that formerly the Kouts (fishermen) claiming the right to fish were residents of four villages, then some of them shifted to other villages on account of their houses being washed away, and settled themselves in other villages. At the time of the suit they were residing in nine villages. He further deposed that during the last ten or twelve years there were 600 bohanias and that their families increased, their present number being 846. It is in evidence that since this evidence was given their number has gone up to 1500. From the documentary evidence it appears that up to the year 1918 their number was not very large. Only twelve persons were impleaded in Section 145 of the Criminal Procedure Code proceedings and it was said that there were some more interested. The maximum number given in one or two receipts is 174."
25. Apex court in the case of Sri Manohar Das Mohanta Vs. Charu Chandra Pal and others reported in AIR 1955 SC 228 dealing with concept of presumption of lost grant has held that in order to constitute a valid presumption of a lost grant it is necessary that ;
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR The possessor maintains ancient and continuous possession of the land without any adverse claims;
The possession and title assertion are derived from the owner and remain unchallenged;
There is no evidence of any legal impediment that would negate the possibility of a grant.
26. Apex Court in the case of M. Siddiq (dead) Through Legal Representatives Vs. Mahant Suresh Das and Others reported in (2020) 1 SCC 1 at paragraph No. 1173 has held as under:
1173. From the analysis of the precedent on the subject, the following principles can be culled out:
(i) The doctrine of lost grant supplies a rule of evidence. The doctrine is applicable in the absence of evidence, due to a lapse of time, to prove the existence of a valid grant issued in antiquity.
However, the court is not bound to raise the presumption where there is sufficient and convincing evidence to prove possession or a claim to a land in which case the doctrine of lost grant will have no applicability;
(ii) Where it is impossible for the court to determine the circumstances under which the grant was made, an assumption is made about the existence of a valid and positive grant by the servient owner to the possessor or user. The grant may be express or presumed. Once the assumption is made, the court shall, as far as possible, secure the possession of those who have been in quiet possession;
(iii) For a lawful presumption there must be no legal impediments. For the applicability of the doctrine it is necessary to establish that at the
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR inception when the grant was made not only was there a valid grant but also capable grantees in whose favour the grant could have been made. In the absence of defined grantees, there will be no presumption of lost grant;
(iv) For the applicability of the doctrine of lost grant, there must be long, uninterrupted and peaceful enjoyment of an incorporeal right. Uninterrupted enjoyment includes continuous use or possession. The PART O requisite period of use and possession is variable and to be determined from case to case; and
(v) A distinction has to be made between an assertion of rights due to a prolonged custom and usage and that by doctrine of lost grant.
27. It is thus now well settled that by catena of pronouncements, the doctrine of lost grant is a mode devised to confer title by prescription notwithstanding failure of proving right by immemorial user. Presumption of lost grant is not absolute. It requires thorough substantiation. Owners of the lands are entitled to retain absolute and exclusive control over their properties unless a legitimate and legally sound claim is establish against them. It is also well settled that in order to acquire a right by prescription or under a lost grant, it is necessary to show that; (1)the origin of the right was legal, (2)the right has been enjoyed openly, peaceably and uninterruptedly and
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR (3)the right was valid and enforceable against all. Further in order to have a lawful origin under a grant it is essential that there could be a capable grantor and a capable grantee. That no lost grant could be presumed in favour of a fluctuating and unascertained body of persons.
28. In the instant case the very premise on which the right of way being claimed is that the "ABC" hedge/strip shown in the hand sketch has been used as a cart way not only by the plaintiffs but also by rest of land owners and public at large.
29. In the cross examination recorded on 28.08.2004, PW1 has deposed that the suit has been filed in the interest of general public. In other words the plaintiffs seem to be espousing the cause of general public which is an un-ascertainable group of people and as held in the case of Asrab Ulla (supra) as well as Raja Braja Sundar Deb, an easementary right on the principles of presumption of lost grant in favour of an unascertainable body of people cannot be granted. Plaintiffs seeking relief of
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR easement were required to place their case within the contours of the law.
30. PW2 is a Village Panchayath Member. PW3 and PW4 are the villagers. The said witnesses also claim to be frequenting and using the suit cart way to carry their agricultural produce. Necessary also to note that by filing an impleading application in IA No.3/2012 certain persons claiming to be the neighbouring land owners having right to use the suit cart way got themselves impleaded as party respondents 3 to 13. However by filing a memo dated 01.07.2025 they got themselves deleted. Suffice to state that claim of right to the cart way on basis of immemorial user is being claimed by the plaintiffs for themselves and for the general public, which is not permissible under the law noted hereinabove.
31. No doubt by way of an amendment in the plaint the plaintiffs have sought to introduce the theory of they having been using the strip at "ABC" point for over 50 years. No material evidence is placed on record except
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR Ex.P1 to P7 which are the RTC extracts of the year 2001 onwards.
32. On a query by this Court, the learned counsel appearing for the appellants submitted that there are no records available to point out the ancestors of the plaintiffs were ever using the said strip at points "ABC" as there are no records produced before the Court.
33. Another aspect of the matter requires to be noted is that admittedly on to the eastern side of the lands of the plaintiffs and the defendants there exists Ghataprabha Left Bank Canal (GLBC) which was admittedly constructed as far back as in the year 1960. It is on record that in view of the said canal none of the owners of the adjoining lands let alone the plaintiffs or the defendants could have had access through Shirol - Mareguddi road until construction of a pool at point "Y" in the year 2000 as shown in the written statement hand sketch. PW1 and PW2 have affirmed this aspect of the matter in their depositions.
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR
34. Thus, it becomes clear that even if said strip at point "B and C" of the defendants was capable of being used as a cart way it served no purpose at least from 1960 onwards as the same could not have been used to reach any further crossing over the canal, after all the plaintiffs have been allegedly utilizing this space to carry their agriculture products. As rightly pointed out by the learned counsel for the Respondents/defendants there is no any further pleading other than mentioning stripe at point "ABC" in the hand sketch.
35. The difference between the sketch produced by the plaintiffs and the defendants is that plaintiffs' hand sketch does not depict anything whatsoever with regard to the existence of Canal or with regard to construction of the pool at point "Y" as shown in the hand sketch produced by the defendants.
36. However, vehement submission is being made on behalf of the plaintiffs that though there existed a canal on the eastern side and the pool was constructed at point "Y"
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR in the year 2000, the plaintiffs were utilizing another small pool which is shown at point "Z" of the hand sketch of defendants situated at a furlong further down the point "Y". This is clearly an improvement at the stage of the trial after filing of the written statement along with hand sketch by the Defendants
37. As already noted, it is not the case of the plaintiffs that they are claiming easement by necessity either. It is settled principle of law that right of easement for mere convenience cannot be granted. Evidence on record indicates that the witnesses PW1 as well as PW2 have admitted to the utilization of the other alternate roads to reach the road existing on the northern side as shown in the hand sketch produced by the defendants. In that view of the matter and in the absence of any plea with regard to plaintiffs utilizing the pool at point "Z" a furlong away from the pool at point "Y" admittedly constructed in the year 2007 cannot be accepted.
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR
38. Admittedly, plaintiffs who have based their claim on the immemorial user have not placed on record any material substantiating their said claim. The Trial Court has lost sight of this aspect of the matter while decreeing the suit which has been rightly set it right by the First Appellate Court. The reading, construction and understanding of contents of Ex.P8 and P9 by the First Appellate Court cannot be found fault with. The said documents read in the light of the pleadings and the other depositions on record would categorically indicate that the plaintiffs were very much conscious of non-existence of any road at point "B and C" and therefore had sought intervention of the local panchayat authorities, upon which they were directed to approach the higher authorities. The First Appellate Court therefore, rightly appreciated these aspects of the matter while allowing the appeal and dismissing the suit. The substantial question of law is answered accordingly.
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NC: 2025:KHC-D:8258 RSA No. 2077 of 2006 HC-KAR
39. Consequently, the appeal is stands dismissed. The judgment and decree passed by the First Appellate Court is confirmed.
40. Pending applications, if any, are disposed off accordingly.
Sd/-
(M.G.S. KAMAL) JUDGE VNP up to para 12 SMM para 13 to end CT-ASC List No.: 1 Sl No.: 2