Karnataka High Court
Sri Balaram S/O Lakshman Rao Sangvikar vs Sri Abdul Gaffur S/O Khaja on 24 April, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF APRIL 2020
BEFORE
THE HON'BLE MR.JUSTICE M.NAGAPRASANNA
REGULAR SECOND APPEAL No. 2958 of 2006
BETWEEN:
Sri. Balaram,
S/o. Lakshman Rao Sangvikar
Aged about 73 years,
Occ: Retired Government Servant,
R/o. House No.8-796/2,
Asif Gung, Lohar Galli,
Gulbarga Town- 585 101. ...APPELLANT
(By Sri Ameet Kumar Deshpande, Adv.)
AND:
1. Sri. Abdul Gafoor,
S/o Khaja
Aged about 60 years,
Occ: Carpenter,
2. Smt. Naseem Banu,
W/o. Babamiyan,
Aged about 30 years,
Occ: Household,
2
R/o. House No.T-8-796/4,
Asif Gung, Lohar Galli,
Gulbarga Town- 585 101. ... RESPONDENTS
(Sri Basavaraj Kareddy, Advocate)
This Regular Second Appeal filed under Section 100
of CPC praying to set aside the judgment and decree dated
29.9.2006 passed by the III Addl. Civil Judge (Sr. Dn.),
Gulbarga in R.A.No.106/2006 and to confirm the judgment
and decree dated 21.03.2006 passed by the learned
Principal Civil Judge (Jr. Dn.), Gulbarga, in O.S.
No.199/2005.
This Regular Second Appeal having been heard and
reserved for judgment on 7.2.2020, coming on this day,
this Court pronounced the following:
JUDGMENT
Aggrieved by the judgment and decree dated 29.09.2006 in R.A.No.106/2006 passed by the III Additional Civil Judge (Sr. Dn.), Gulbarga, reversing the judgment and decree dated 21.3.2006 in O.S.No.199/2005 on the file of the Principal Civil Judge (Jr. Dn.), Gulbarga (hereinafter referred to as 'trial Court' for short), the plaintiff has preferred the instant regular second appeal. 3
2. The parties will be referred to as per their ranking before the trial Court.
3. Brief facts that leading to filing of the present appeal are as follows:
The plaintiff is the owner and in possession of the house No.8-796/2 of Asif Gunj, Lohar Galli, Gulbarga. The defendants are the residents of house No.T-8-796/4. The suit property is a 3 feet wide common lane, facing East-
West direction measuring 25.6 ft. in length attached to H.No.8-796/2 towards south. The suit property is used as common lane by the plaintiff and defendants and the other people in the locality for the last thirty years as an easementary right. Defendant No.1 is the father of defendant No.2. The suit property exists in between the house of plaintiff and defendants towards south of the plaintiff's house.4
4. It is stated that the plaintiff uses the suit property for doing his avocation namely, white washing and all other repair work using the back side of the wall. The air and light that the plaintiff receives is through the windows and ventilators existing in the southern wall to his house. It transpires that the defendants, in order to grab the common lane, erected wooden structure in the suit property adjoining the wall of the plaintiff's house due to which the entry of the plaintiff into the suit property was blocked and air and light that was coming into the property of plaintiff was also blocked due to the erection of the structure in the suit property. The plaintiff and other people in the locality requested the defendants to remove the obstacle in the suit property as it was a common lane that was being used for decades. Since the defendants did not accede to the request, the plaintiff along with others filed a complaint before the City Corporation, Gulbarga and also the Chowk Police Station, all of which went in vain. On this cause of action the plaintiff filed a suit in O.S. No.199/2005 on the file of the Principal Civil Judge (Jr. 5 Dn.), Gulbarga on 15.4.2005, seeking declaration that the suit property is a common lane existing between the house of the plaintiff and the defendants and mandatory injunction restraining the defendants to make any construction over the suit property with a further direction to remove the illegal structure put up in the suit property.
5. After issuance of notice, defendant Nos.1 and 2 appeared before the trial Court and filed their written statement contending that the boundaries shown by the plaintiff were false and bogus, the three feet common lane facing towards east-west measuring 25.6 inches was in fact the property belonging to the defendants. They were absolute owners of the property bearing Nos.8-796/4A and 8-796/4B respectively. According to the defendants, the suit property was a part and parcel of the house of the defendants. It was further contended that there was no suit property in between the plaintiff and the defendants. The plaintiff who is the owner and in possession of the house No.8-796/2 has deliberately shown the house of the 6 defendants as his house and denied all other averments. The defendants also denied the fact that other local people were using the common lane for the last thirty years as an easementary right. It was their contention that there was no lane existing between the property of the plaintiff and the defendants. The defendants also denied that they had erected a wooden partition on the suit property and contended that they were at liberty to do anything in their property as per their convenience and prayed for dismissal of the suit.
6. On the aforementioned contentions, the parties were put on trial on the following issues framed by the trial Court.
1. Whether the plaintiff proves that, the suit property is 3 feet wide lane in between the plaintiff and defendants?
2. Whether the plaintiff proves that, the defendants have put up construction over the suit property?
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3. Whether the defendant proves that, the suit property is part and parcel of house No. No.8-796/4A and 8- 796/4B?
4. Whether the plaintiff proves that, the interference in the common use of the plaintiff of the suit property by the defendant by way of construction?
5. Whether the plaintiff is entitled for the mandatory injunction directing the defendant to remove the illegal construction made over the suit property?
6. Whether the plaintiff is entitled for the relief sought?
7. What order or decree?
7. The trial Court, on consideration of the contentions and the evidence, decreed the suit by the following order:
" The suit filed by plaintiff is hereby decreed with costs.
It is declared that, the suit lane is a common lane and plaintiff, defendant 8 and other local people are entitled to make use of the said lane.
The defendants are hereby restrained from making any construction in the suit lane.
Further, it is directed to defendants to remove the illegal structure i.e., curtain put up on the western wall of the house of plaintiff, if defendants failed to do so, plaintiff is entitled to remove through process of court."
8. Challenging the said judgment and decree passed by the trial Court in the aforesaid suit, the defendants preferred R.A No.106/2006 before the first appellate Court. The first appellate Court, reversed the judgment and decree of the trial Court by allowing the appeal and dismissing the original suit. Challenging the said order passed by the first appellate Court, the plaintiff has preferred the instant regular second appeal. 9
9. While admitting the instant appeal, this Court has framed the following substantial question of law:
" Whether the lower appellate Court was justified in interfering with the judgment and decree of the trial Court after holding that the case of the plaintiff for declaration is established but not for mandatory injunction though defendants admit the installation of the wooden structure, as not proved ?"
10. We have heard Sri Ameet Kumar Deshpande, learned counsel for the appellant and Sri Basavaraj Kareddy, learned counsel for respondents.
11. Learned counsel for the appellant-plaintiff would contend that the trial Court had formulated several issues and the crux of one of the issues was with regard to the plaintiff proving that the suit lane, measuring three feet in between the house of the plaintiff and the defendants, was a common lane being used by the plaintiff, defendants and the other local people. This issue was held in favour of 10 plaintiff by the trial Court. It is contended by the learned Counsel that the first appellate Court also formulated a similar question fastening burden on the plaintiff to prove that there existed a lane between the houses of the parties and that was a common lane. Answering the same by the first appellate Court, held in favour of the plaintiff concurring with the trial Court. When it came to the relief of grant of injunction, the first appellate Court committed an error in appreciation of the evidence on record. There was no evidence of the kind that was considered by the first appellate Court placed before the trial Court by any of the parties. The first appellate Court held that it was only a cloth curtain and not the wooden structure and the plaintiff was not entitled to the relief of permanent injunction.
Learned counsel for the appellant-plaintiff further contended that the first appellate Court had failed to know as to what was the meaning of interference and had lost the sight of the position of law that mere denial of the plaintiff's right to make use of the common lane 11 was sufficient to hold that there was interference by the defendants.
12. Per contra, learned Counsel for the defendants would support the order of the first appellate Court and would contend that the first appellate Court has considered the fact that there was no evidence before the trial Court to hold that a wooden structure was constructed by defendants which resulted in taking away the easementary right of the plaintiff and other people of the locality and has rightly reversed the judgment and decree of the trial Court.
13. Before considering the arguments advanced, the case will have to be considered under the provisions of the Indian Easements Act, 1882, particularly with reference to Sections 4 and 15, which are reproduced hereunder for ready reference:
" Section 4 "Easement" defined.-- An easement is a right which the owner or 12 occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
Dominant and servient heritages and owners.--The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Explanation.--In the first and second clauses of this section, the expression "land"
includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon."
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Section 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."
14In terms of Section 15 of the Act, an access and use of light or air for any building which has been peacefully enjoyed as an easement without interruption for 20 years cannot be taken away by an act of the party obstructing it.
14. The suit was filed for declaration and permanent injunction declaring that the suit lane to be a common lane being used by the plaintiff and the other people in the locality and the injunction was to restrain the defendants from putting up any structure that would take away the easementary right of the plaintiff and the other people in the locality. The burden of proof lies on plaintiff that there existed a common lane and a wooden structure with a curtain put up by the defendants, which resulted in blockade of air and light to the house of the plaintiff. P.Ws.1 to 6 are the witnesses examined by the plaintiff. The putting up of a structure in the lane by the defendants was admitted by the witnesses and also the defendants. But the defendants set up a plea that the suit property was a part and parcel of their own property and they were at 15 liberty to make use of the property as per their choice. The defendants also admitted that they have put up the cloth curtain touching the southern wall of the house of the plaintiff and the photographs (Exs.P.7 and P.8) produced by the plaintiff were also admitted by the defendants and the obstruction in the lane is clearly seen in the photographs. The defendants had no right to obstruct the easementary right of the plaintiff in a lane that was common to both plaintiff and the defendants.
15. On perusal of the entire evidence, I see no evidence placed before the trial Court that the suit property was owned by the defendants and was meant only for the usage of defendants. The ownership document (Ex.D.1) that was produced by the defendants before the trial Court also did not show the common lane belonging to the defendants. Thus, there was no evidence before the trial Court as was contended by the defendants that the suit property belonged to them and they were at liberty to use it in the manner of their convenience. 16 Based upon the evidence, the trial Court declared that the suit property was a common lane to be used by the plaintiff, defendants and other people in the locality and was not the private property of the defendants.
16. The defendants contended that the curtain was put up on the ground that the family members had women and they were parda nashin ladies and therefore, a wooden structure and a curtain had to be put up in the common lane. Based upon the evidence and its consideration, the trial Court had decreed the suit.
17. This was challenged before the first appellate Court by the defendants. The first appellate Court formed the following points for its consideration :
1. Whether the plaintiff proves that the suit lane is a common lane and being used by himself, defendants as well as other local people?17
2. Whether the plaintiff further proves that the defendants have erected wooden structure in the suit property by attaching, wall of his house as alleged?
3. Whether the plaintiff further proves that due to the existence of structure there is an interference of right of enjoyment of suit property?
4. Whether the defendants prove that the suit property is the part & parcel of their house?
5. Whether the plaintiff is entitled for the reliefs claimed?
6. Whether the impugned judgment & decree calls for any interference by this Court?
7. What Order?
Answering the afore-extracted points, the first appellate Court throughout its judgment observes that the defendants had no exclusive right over the suit property and came to conclude that the trial Court was justified in 18 holding that the suit property was a common lane and was being used by the other persons in the locality including the plaintiff. The first appellate Court further held that the trial Court was justified in holding that the suit property was not a part and parcel of the defendants' property. Thus, the first appellate Court has clearly accepted the findings of the trial Court with regard to the declaratory part of the suit with regard to the common lane and usage of the suit property. But, held that the plaintiff has failed to establish the fact of existence of the wooden structure, which caused interference to the plaintiff by the defendants by putting up the said structure. This finding runs counter to the evidence led before the trial Court and the trial Court was justified in decreeing the suit in favour of the plaintiff.
18. The first appellate Court fell in error in not granting the mandatory injunction while finding that the suit for declaration did not call for any interference on the 19 ground that the existence of wooden structure was not proved, but the existence of cloth curtain itself cannot give a right to the plaintiff to claim mandatory injunction against the defendants. It is to be noticed that the first appellate Court while answering issue No.2 has observed as follows:
"19. As could be seen from the materials placed on record, the learned trial Court after considering the entire evidence placed by the parties as well as the documents has come to the conclusion that the suit property is a lane which is commonly used by the plaintiff, defendant and other persons of the locality. The learned trial Court has also considered the documents as per Ex.D.1 and has come to the conclusion that Ex.D.1 does not disclose the exact extent of the area purchased by the defendants. Therefore, refused to accept the title of the defendants over the suit property. Now these observations made by the learned trial Court are seriously challenged by the defendants in this Appeal."
20The afore-extracted portion of the order of the first appellate Court would indicate that the first appellate Court has contradicted itself in considering the evidence that was led before the trial Court. The first appellate Court observes that the defendants have no right over the three feet lane that runs between the properties of the parties and putting up of a cloth curtain touching on the southern wall of the plaintiff would definitely take away the right of the plaintiff and obstructed light and air that the plaintiff was in enjoyment for more than 30 years and holds in the affirmative that the plaintiff was entitled to for a direction against the defendants to remove the curtain. Thus, the first appellate Court does not interfere with the decree of declaration that was granted by the trial Court. The first appellate Court also observes that the plaintiff was entitled to the injunctive directions and also a positive direction to remove the curtain that was put up by the defendants. No defence of the defendants was accepted by the first appellate Court. 21
19. Having accepted the declaration of the trial Court that the suit property was the common lane between the property of the plaintiff and defendants, and the common lane was being used by the plaintiff and the other people in the locality as an easementary right, the first appellate Court fell into error in not granting an injunction against the defendants for putting up a structure that would take away the easementary right of the plaintiff or any other people in the locality for over thirty long years. Thus, in terms of the provisions of the Indian Easements Act, as extracted herein above, the judgment and decree passed by the trial Court could not have been interfered with by the first appellate Court. Hence, the judgment and decree of the first appellate Court requires appropriate interference.
20. The substantial question of law that has arisen in the instant appeal is answered by holding that the first appellate Court was in error in not granting mandatory 22 injunction in favour of plaintiff against the defendants for putting up construction on the suit property though the first appellate Court had concurred with the finding of the trial Court with regard to the decree of declaration passed by the trial Court in favour of plaintiff with regard to the existence of a common lane between the property of the plaintiff and the defendants. Consequently, the defendants are restrained from putting up any construction on the suit property which would take away the easementary right of the plaintiff and other people in the locality enjoyed by them for more than thirty years.
21. For the aforementioned reasons, I proceed to pass the following:
ORDER
1. This second appeal is allowed with costs throughout.
2. The judgment and decree dated 29.09.2006 on the file of the III Additional Civil 23 Judge (Sr. Dn.), Gulbarga, in R.A.No.106/2006 is set-aside. R.A.No.106/2006 is dismissed.
3. The judgment and decree dated 21.03.2006 passed in O.S.No.199/2005 by the Court of Principal Civil Judge (Jr. Dn.), Gulbarga, is restored.
Sd/-
JUDGE Cs