Karnataka High Court
Chandan Singh Mahendra Singh Parihar vs Nagappa Basappa Kollur on 23 February, 2024
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.5268 OF 2008 (INJ)
BETWEEN:
M.L. PARIHAR
(ACTUALLY CHANDAN SINGH MAHENDRA SINGH PARIHAR)
VISHAL SINCE DECEASED BY HIS LRs.
NINGAPPA
PATTIHAL
Location: HIGH COURT
1(a) SMT. SEEMA
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.05
W/O. LATE CHANDANSINGH PARIHAR
14:51:18 +0530
AGED ABOUT 54 YEARS,
1(b) SRI VIKRAMSINGH
S/O. LATE CHANDANSINGH PARIHAR
AGED ABOUT 33 YEARS,
1(c) SMT. GAYATRI
W/O. GANGADHAR BHAGWAT
AGED ABOUT 29 YEARS,
1(d) UMA
D/O. LATE CHANDANSINGH PARIHAR
AGED ABOUT 24 YEARS,
ALL ARE RESIDING AT
OPPOSITE SHIVAMANDIR,
KULAGI ROAD, DANDELI,
U.K. DISTRICT - 581 325.
1(e) SMT. POORNIMA
W/O. SIDDIMAN SINGH,
AGED ABOUT 35 YEARS,
OCC: HOUSEHOLD WORK,
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R/O. TYPE-4, DS 44,
POST: KIRAN DUL,
DIST: DANTEWADA, CHATTISGARH,
PIN - 494 556.
(AMENDMENT CARRIED OUT
AS PER HON'BLE COURT
ORDER DATED 07/02/2013) ... APPELLANTS
(BY SRI GANAPATI HEGDE, SENIOR COUNSEL FOR
SRI VISHWANATH HEGDE, ADVOCATE FOR A1 (A TO E))
AND:
NAGAPPA BASAPPA KOLLUR
AGED ABOUT 73 YEARS,
OCC: RETIRED EMPLOYEE AND AGRIL,
R/O. 1068/IV, KULAGI ROAD,
DANDELI, TALUK HALIYAL. ... RESPONDENT
(BY SRI S.B. HEBBALLI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGEMENT & DECREE DATED 26/08/2008 PASSED IN
R.A.NO.383/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
YELLAPUR, DISMISSING THE APPEAL AND THE JUDGEMENT AND
DECREE DATED 26/02/2005 PASSED IN O.S.NO.14/1999 ON THE
FILE OF THE CIVIL JUDGE (JR.DN.), DANDELI, FILED FOR
MANDATORY AND PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
21/12/2023 FOR JUDGMENT AND COMING FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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JUDGMENT
The present second appeal by the defendant, assailing the concurrent findings of the Courts below, whereby, the suit seeking declaration that the plaintiff has a right to use the road, i.e., suit property, mandatory and permanent injunction was decreed.
2. This Court, while admitting the appeal on 16.09.2013, framed the following substantial questions of law:
"(i) Whether both the Courts have rightly appreciated on pleadings and evidence available on record to ascertain whether plaintiff was not having alternate road to reach his property other than through suit schedule property?
(ii) Whether the plaintiff had title to the property which was in possession and also right to seek easement as appended to property belonging to him as on that date?
(iii) Whether both the Courts below were right in ignoring the unchallenged finding in Ex.P-26 in a -4- dispute between the parties way-back in the year 1999?"
3. Learned senior counsel, Sri Ganapathi Hegde appearing for Sri Vishwanath Hegde, learned counsel for the appellant and Sri S.B.Hebballi, learned counsel appearing for the respondent have been heard on the substantial questions of law framed by this Court and perused the material on record.
4. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.
5. The description of the suit property is the "road passing through Block No.1/B leading to the house of the plaintiff measuring east-west 172' ft. and width of 12' ft. shown as "C" and "D" in the hand sketch map annexed to the plaint situated near Ishwar Temple, Kulgi Road, Dandeli (hereinafter referred to as "the suit property" for the sake of convenience).
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6. Suit for permanent injunction restraining the defendant, his friends, agents, relatives, representatives or anybody else acting on his behalf personally and obstruction of the plaintiff's from peaceful use, vahivat and enjoyment of the suit property, granting mandatory injunction directing the defendant to remove and dismantle the constructed compound wall and the compound gate constructed by the defendant at points "A" and "B" and make the way clear as prior to the filing of the suit and failure to do so, a Court Commissioner to be appointed to remove and dismantle the compound wall and the gate, clear the road for peaceful use and enjoyment of the suit property and to declare that the plaintiff has a right to use the road, i.e., the suit property.
7. The plaintiff contended that from the main Dandeli Kulgi Road passing through Block No.1/B leading to the house and farm of the plaintiff, the road is in existence since last more than 30 years, the plaintiff is in -6- actual use in wahivat and enjoyment of the road. The suit property is the only way for the plaintiff to come to the main Dandeli Kulgi Road and to carry his agricultural products and equipments. That, there are houses of other persons on either side of the road till point "A" shown in the hand sketch map and the road is also used by other people of the area to go to the river. It is contended that, the defendant is trying to dig across the suit property at "A" and "B" with an intention to construct a compound wall illegally, though, he had no manner of right, title and interest over the suit property and hence, the suit is filed with the prayers stated supra. By way of amendment, the plaintiff sought right of way over the suit property.
8. Pursuant to the notice issued by the trial Court, defendant appeared through his counsel and filed his written statement, inter alia, contending that the description of the suit property given by the plaintiff is not -7- admitted and so also the hand sketch map annexed to the plaint.
9. That the defendant is carrying on business of bricks manufacturing in the said property and as such, got the area protected by compound wall on all the sides except the river side. The defendant contended that there is no road or any right of way in the property of the defendant as alleged by the plaintiff. In view of the amendment sought by the plaintiff, that there is a right of way over the suit property, the defendant contended that the right of way over the suit property, which has been sought by the plaintiff, is not maintainable without seeking declaration.
10. By way of additional written statement, the defendant contended that the plaintiff has no locus standi to question the legitimate use and enjoyment of the -8- property belonging to the defendant and there is no access at all in the suit property as alleged by the plaintiff.
11. The trial Court initially on 09.08.2001, framed the following:
"ISSUES
1) Whether the plaintiff proves the description of the suit property is proper and correct?
2) Whether the plaintiff proves the existence of road at print C to D as shown in the hand sketch map?
3) Whether the plaintiff proves that the suit road is in use and enjoyment of plaintiff as claimed in suit?
4) Whether the plaintiff proves the interference of defendants as claimed in the suit?
5) Whether the suit is not maintainable without the relief of declaration?
6) Whether the suit is bad for non-joinder of necessary party as claimed in para 12 of W.S.?
7) Whether the plaintiff is entitled for the relief claimed in suit?"-9-
Subsequently, by recasting the issues, the trial Court framed the following:
"RECASTED ISSUES "1) Whether plaintiff proves that he is making use and enjoyment of 'C D' road passing through Block No.1/b?
2) Whether plaintiff proves the alleged obstruction?
3) Whether plaintiff proves that defendant has constructed compound wall and fixed gate at point 'A'?
4) Whether plaintiff is entitle for relief sought?"
12. In order to substantiate his claim, plaintiff examined himself as PW.1 and got marked documents at Exs.P-1 to P-28. On the other hand, defendant got examined himself as DW.1 and got marked documents at Exs.D-1 to D-36.
13. The trial Court, on the basis of the pleadings, oral and documentary evidence on record held that:
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(a) The plaintiff is making use of the suit road passing through Block No.1/B;
(b) The plaintiff has proved that the defendant has constructed a wall and fixed gate at point "A"
and by the judgment and decree, decreed the suit holding that the plaintiff has got the right of easement over the suit way and the defendant was directed to remove the compound wall constructed over the suit way within fifteen days.
14. Feeling aggrieved by the judgment and decree of the trial Court, the defendant preferred regular appeal before the first appellate Court. The first appellate Court framed the following points for consideration:
"Point No.1:- Whether the appellant/defendant is having any right over the road situated in block No.1/B or other land in block No.1/B so as to obstruct the plaintiff from using the road in question?
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Point No.2:- Whether the judgment and decree of the lower court calls for interference with by this court?"
and the first appellate Court concurred with the judgment and decree of the trial Court.
15. Aggrieved by the decreetal of the suit, the defendant is in second appeal.
16. Before considering the merits of the second appeal, the scope and ambit of the second appeal under Section 100 CPC, the interference by this Court need to be considered. The Apex Court in catena of judgments in line, held that the interference of second appeal under Section 100 is amenable to the High Court, only when the finding is based on perversity and when the appellate Court has not re-appreciated the entire oral and documentary evidence, the appreciation of evidence are exception to the rule pointed out by this Court. The following are the judgments of the Apex Court:
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(I) The Apex Court, in the case of Hero Vinoth (minor) vs. Seshammal1 at paragraph No.24 held as under:
"24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding 1 AIR 2006 SC 2234
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precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
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(II) In similar line, the Apex Court in the case of Rajasthan State Road Transport Corporation and another vs. Bajrang Lal2 at paragraph Nos.18, 19 and 20 held as under:
"18. The appellate court committed a grave error by declaring the enquiry as non est. The termination order as a consequence thereof stood vitiated though there is no reference to any material fact on the basis of which such a conclusion was reached. The finding that copy of the documents was not supplied to the respondent- plaintiff, though there is nothing on record to show that how the documents were relied upon and how they were relevant to the controversy involved, whether those documents had been relied upon by the enquiry officer and how any prejudice had been caused by non-supply of those documents, is therefore without any basis or evidence. When the matter reached the High Court in second appeal, the High Court refused to examine the issue at all by merely observing that no substantial question of law was involved and the findings of fact, however erroneous, cannot be disturbed in second appeal.2
(2014) 4 SCC 693
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19. With all respect, we do not agree with such a conclusion reached by the High Court, as second appeal, in exceptional circumstances, can be entertained on pure questions of fact. There is no prohibition for the High Court to entertain the second appeal even on question of fact where factual findings are found to be perverse.
20. In Ibrahim Uddin this Court held : (SCC pp. 175-76, paras 65 & 67-68) "65. In Suwalal Chhogalal v. CIT the Court held as under : (ITR p. 277) '... A fact is a fact irrespective of the evidence by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient material.' ***
67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. [Vide Jagdish Singh v. Natthu Singh, Prativa Devi v. T.V. Krishnan, Satya Gupta v.
Brijesh Kumar, Ragavendra Kumar v. Prem
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Machinery & Co., Molar Mal v. Kay Iron Works (P) Ltd, Bharatha Matha v. R. Vijaya Renganathan and Dinesh Kumar v. Yusuf Ali.]
68. In Jai Singh v. Shakuntala this Court held that (SCC p. 638, para 6) it is permissible to interfere even on question of fact but it may be only in 'very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible--it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection'.
Similar view has been taken in Kashmir Singh v. Harnam Singh "
(emphasis in original)"
(III) Similar observations were made in the case of D.R. Rathna Murthy vs. Ramappa3 and at paragraph No.9, the Apex Court held as under:
3
(2011) 1 SCC 158
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"9. Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the reappreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa, Hafazat Hussain v. Abdul Majeed and Bharatha Matha v. R. Vijaya Renganathan.)"
17. The general rule is that, the High Court will not interfere with the concurrent findings of the Courts below, however, the said rule is not an absolute rule and certain exceptions are well recognized where the Court can interfere when the Courts below have ignored the material evidence or acted on no evidence and arrives at the wrong inferences from the proved facts. The High Court could interfere when it is satisfied that the judgment and decree
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of the Courts below suffers from perversity and illegality warranting interference by this Court. Keeping in view the above principles, this Court has considered the substantial questions of law framed by this Court in this second appeal.
18. The rival contentions urged by the learned counsel for the parties and the material on record have been carefully considered by this Court.
19. Before adverting to the merits of the regular second appeal and answering of the substantial questions of law, it is necessary to consider the interim applications, which have been filed by the plaintiff and the defendant in this second appeal.
(a) I.A.No.1/2013 is filed by the appellant for production of additional evidence and this Court, vide order dated 03.01.2019, ordered that I.A.No.1/2013 for
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production of additional evidence to be considered at the time of final hearing.
(b) I.A.No.1/2023 is filed by the appellant seeking amendment of the memorandum of appeal under Order VI Rule 17 read with Section 151 CPC.
(c) I.A.No.2/2023 is filed by the appellant under Section 100 read with Section 151 CPC seeking to frame additional substantial question of law.
(d) I.A.No.3/2023 is filed by the respondent-plaintiff seeking for amendment of the plaint under Order VI Rule 17 CPC to substitute the word "Block No.1/A 1"
instead of "Block No.1/B" wherever they appear in the plaint.
(e) The respondent-plaintiff has not filed objections to I.A.No.1/2013, I.A.No.1/2023 and 2/2023.
(f) The appellant - defendant has filed objections to I.A.No.3/2023 seeking amendment of plaint by respondent-plaintiff.
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20. I.A.No.1/2013 is filed by the appellant- defendant for production of following documents:
i. Sale Deed dated 06.04.2006 between Arjun S/o Devappa Mirashi and others in favour of Chandansingh Mahendrasingh Parihar (defendant) in respect of Block No.1/A 1 measuring 02 acres 09 guntas 14 anas;
ii. Certified copy of the sale deed dated 08.07.2010 by Arjun Devappa Mirashi and others in favour of the plaintiff in respect of Block No.1/A1/8 measuring 33 guntas iii. No objections have been filed by the respondent-plaintiff for production of additional evidence, the sale deeds dated 06.04.2006 and 08.07.2010 purchased by the appellant-defendant and respondent-
plaintiff has also been produced by the respondent- plaintiff along with I.A.No.3/2023.
iv. The plaintiff and defendant being owners of respective portion is not disputed by either of them, the
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documents along with I.A.No.1/2013 are therefore taken on record as additional evidence.
21. I.A.No.1/2023 is by the appellant for amendment of the memorandum of appeal and the factual aspects have been sought to be amended in the memorandum of appeal, the application has not objected by filing objections, the amendment sought is only narrating the factual aspect and in the said circumstances, I.A.No.1/2023 is allowed.
22. I.A.No.2/2023 is by the appellant seeking to frame additional substantial question of law, this Court is of the considered view that the substantial question of law framed by this Court on 16.09.2013 covers the entire aspect which is sought to be framed by additional substantial question of law by the appellant and hence, I.A.No.2/2023 is disposed of.
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23. I.A.No.3/2023 is filed for amendment of the plaint under Order VI Rule 17 CPC. The amendment sought is to the description of the suit property in the plaint as under:
"Substitute the word, "Block No.1/A 1" instead of "Block No.1/B" wherever they appear in the plaint, namely, at 4th line in Para 2, at 3rd and 9th line in Para 3 of the plaint."
24. The respondent-plaintiff in his plaint avers that there is a road measuring east-west 172 ft. and width of 12 ft. shown as 'C' 'D' in the hand sketch annexed to the plaint and it is further stated that in the plaint, the road described as CD passes through Block No.1/B and the prayer sought in the plaint after amendment before the Trial Court is to declare that the plaintiff has right to pass through this property and also for removal of the obstruction put up by the defendant. It is the case of the plaintiff in the suit that, the road described as "CD" in the plaint passes through Block No.1/B situated in Dandeli,
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further, the road leads to the farm house of the plaintiff and house of the defendant, the house of the defendant is described as "M" in the hand sketch map. It is contended that the registered sale deed has been executed by the common vendor in favour of the plaintiff on 08.07.2010 and it is described as 1/A1/8 and the registered sale had been sought to be produced and at para No.6 of the affidavit accompanying I.A.No.3/2023 states as under:
"6. The Plaintiff purchased the Farm House described in the plaint under a Registered Sale Deed dated 08.07.2010 from its previous vendor and his farm house is described as Block 1/A1/8. The copies of the Registered Sale Deed and the RTC extract for the year 2022-23 are respectively produced herein as Documents Nos.1 and 2. The Defendant also purchased his house under a Registered Sale Deed dated 06.04.2006 from its previous common owner which is described as Block No.1/A1 and the same is described as Block No.1/A1/7 in the RTC extract. The copy of the registered sale deed in favour of the Appellant - Defendant and also the RTC extract are respectively produced along with this application as
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per Documents Nos.3 and 4. It is the case of the Plaintiff that he is possession of the farm house prior to the sale deed under which he has purchased. Thus these two sale deeds describe that the suit property lies in Block 1/A1 and not in Block 1/B. The Plaintiff was under a bonafide impression that the property belonging to the Plaintiff and Defendants are situated in Block No.1/B of Dandeli. Thus he described the road C D in the hand sketch as passing thorough Block No.1/B of Dandeli. Both the parties went to trial under the impression that the suit property is Block No.1/B of Dandeli. Even this mistake which has happened through inadvertence was not noticed by Defendant - Appellant also since the same is not objected as on today by the Defendant - Appellant. This mistake was noticed by the Plaintiff at the time when he got executed the Registered Sale Deed in his favour and also in favour of the Defendant. This has necessitated the Plaintiff to seek the amendment of plaint for substitution of Block number 1/A1 instead of Block No.1/B, more fully described in the application."
25. Learned counsel for the respondent would contend that the plaintiff under the bona fide impression
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that the property belonging to the plaintiff and defendant are situated in Block No.1/B of Dandeli and thus, had described the road "CD" in hand sketch map as passing through Block No.1/B of Dandeli and the mistake in describing the suit schedule property is by inadvertence under the wrong impression about the description of the suit property, until the same was noticed by the plaintiff while getting sale deeds executed in favour of each of the parties.
26. The appellant - defendant filed objections to the application, inter alia, contending that the application is misconceived, barred by limitation, suppression of facts and the amendment sought changes the very nature of the suit.
27. Learned senior counsel, adverting to the objections raised by the appellant - defendant, would contend that the application has to be dismissed on the
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ground of delay and laches and also description of the suit property, now sought to be changed by the plaintiff, introduce a new property after a period of 25 years and sought for dismissal of the application.
28. The application seeking amendment is in respect of substituting the word "Block No.1/A1" instead of "Block No.1/B". The hand sketch annexed to the plaint is as under:
C A M Defendant Path way B D N Plaintiff 1B
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29. Both the parties went in trial understanding that the suit property is Block No.1/A1 and the registered sale deed in favour of the plaintiff and the defendant has been produced by the plaintiff as well as the defendant, necessitating the plaintiff to seek amendment of plaint for substitution. The substitution sought does not change the nature of the property and the amendment neither prejudices the defendant. In order to adjudicate and arrive at a proper conclusion, the amendment sought by the respondent-plaintiff needs to be allowed by permitting the plaintiff - respondent to amend the plaint and correction of suit property by way of amendment is only a typographical error, which this Court is of the considered view the permission needs to be accorded, accordingly, I.A.No.3/2023 is hereby allowed. On amendment of the plaint, opportunity to file additional written statement, further evidence is not necessary, as the dispute is with regard to the usage of the suit property.
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30. Though the appellant-defendant sought to raise several other substantial questions of law and grounds in support of his case, the substantial question of law raised has been entirely covered by the substantial question of law framed by this Court on 16.09.2013.
31. The trial court initially framed the issues and suo moto deleted the earlier issues framed. Suo moto deletion by the trial Court, the material issues that were framed and recasted in the earlier issues framed, which precisely define the scope, trial and burden of proof, gave an unfair advantage to the respondent - plaintiff, of not having to prove the existence of the suit property, as well as the house property and farm land with respect to which he sought to access the road and consequently, such deletion of material issues derailed the entire proceeding.
32. The object and purpose of the pleadings and issue is to ensure that the litigants come into trial with all
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the issues clearly define, to prevent the scope being expanded or stands being shifted during trial and preventing any deviation from the Courts from which the litigation on particular causes must take. The suo moto recasting of the originally framed issues, by the trial Court without affording any opportunity to the parties of being heard and hence, the same is in violation of Order XL Rule 5 CPC.
33. The appellant-defendant would contend that, no relief whatsoever could be granted in favour of the plaintiff by the Courts below, when evidently plaint avers the suit schedule which described the existence of a road in Block No.1/B and demonstrate the property of the appellant-defendant situated in Block No.1/A1, the said fact is not appraisable to the Court, in view of the fact of allowing of the application for amendment, the said contention of the appellant that no relief can be granted in
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light of not describing the suit property properly is not sustainable.
34. The trial Court proceeded on assumption of existence of road as described in the suit schedule, whereas, the original issues which was based on the pleadings of the parties, cast the burden on the respondent-plaintiff to prove the existence of the suit schedule property and the manner of acquisition of his right, if any, it is for the user determined of the appellant and consequently, the entire suit was derailed and the trial Court as well as the first appellate Court by raising wrong questions/issues to answer, eventually ended in answering the wrong questions/issues wrongly and the wrong question would necessarily dissent in a wrong answer and accordingly, the substantial question of law is answered in favour of the appellant.
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35. The Apex Court, in the case of Bachhaj Nahar vs. Nilima Mandal and another4 (Bachhaj Nahar) has held as under at para No.10:
"10. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted.4
AIR 2009 SC 1103
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When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."
36. The materials on record indicate that, before the trial court, an amendment was sought for declaration that the plaintiff has the right to use the road, i.e., the suit property, but there is no claim for easmentary rights over the suit schedule property, what is claimed by the plaintiff is, the existence of a road and the Courts below have erroneously gone to the extent of holding that the plaintiff is claiming the easmentary right over the appellant's- defendant's property and the discretionary relief as granted by the Courts below was unwarranted.
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37. The plaintiff's case as evident from para Nos.2 and 3 is that the suit property is the only road for him to access his suit property which he claimed to be the owner, the plaintiff asserted that he has been using the property for more than 30 years and apart from that, there are other villagers who are using the suit property to go to the Kali river and by erecting a wall on the suit property and gate at Point "A" and "B", the appellant-defendant is trying to obstruct the use of the suit property.
38. The defendant in his written statement has specifically denied the use of suit property by the plaintiff to reach his house and farm land from past 30 years.
39. Oral evidence of DW.1 coupled with the documentary evidence at Ex.D-1 to 19 and D-29 to 36, clearly indicate that the appellant-defendant, as on the date of the filing of the suit, was in lawful possession and enjoyment. The documents produced by the appellant-
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defendant itself evidence that the property as annexed in the hand sketch map at "M" and "N" are the properties in the respective possession of the plaintiff and the defendant. There is a difference between the "road" and the "pathway".
The "road" is defined as under:
"A road is a thoroughfare for the conveyance of traffic that mostly has an improved surface for use by vehicles (motorized and non-motorized) and pedestrians".
The "pathway" is defined as under:
"Pathway is essentially a longer, redundant way to say "path" a track that a person can walk along"
40. The plaint averments states that the suit road has also been used by other people of the area to go to the river, which according to the plaintiff itself is a public road and the same is situated in the suit property as per
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the amendment. The plaintiff has not produced any piece of paper to establish that there was a road existing and the said road has been used by the plaintiff and the other villagers. Evidently, the pleadings are also silent as to the nature of right of the plaintiff either is it, by easement of necessity or easement of prescription. Section 14 of the Indian Easement Act, 1882 envisages easement of necessity, while Section 15 of the said Act envisages the easement of prescription. Section 14 of the Indian Easement Act, 1882 reads as under:
"14. Direction of way of necessity.-When a right to a way of necessity is created under section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner.
When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out."
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41. Easement of necessity is such a right without which a property cannot be used at all, it is relevant to note that there is not even a whisper in the plaint regarding that the suit property is the only road to approach.
42. In order to prove the acquisition of prescription, the plaintiff has to prove that the right was of peacefully and openly enjoyed by him, claiming title thereto as easement and as a matter of right and without interruption. The sale deeds relied upon by the parties does not evidence about the pathway having been used by the vendor. The ingredients to attract prescriptive right, he has to prove the following two counts:
(i) That there was a right of way.
(ii) The said right of way has been used by the plaintiff since more than 20 years peacefully and openly enjoyed by him.
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43. The Apex Court, in Bachhaj Nahar Stated supra at para Nos.13 and 14, has held as under:
"13. A perusal of the plaint clearly shows that entire case of the plaintiffs was that they were the owners of the suit property and that the first defendant had encroached upon it. The plaintiffs had not pleaded, even as an alternative case, that they were entitled to an easementary right of passage over the schedule property. The facts to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out an easementary right. A suit for declaration of title and possession relates to the existence and establishment of natural rights which inhere in a person by virtue of his ownership of a property. On the other hand, a suit for enforcement of an easementary right, relates to a right possessed by a dominant owner/occupier over a property not his own, having the effect of restricting the natural rights of the owner/occupier of such property.
14. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves,
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right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient
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tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence."
44. Easement is such a right, which is been claimed by one person over the property on another. In a suit, ordinarily, the Court can find a case and decree the suit only on the basis of the pleadings of the parties. But when a claim is on the basis of easement of rights, it is all the more necessary that the pleadings should be specific and precise. There is reason therefore: 'Easement' is a precarious and special right, the right of easement is one which a person claims over a land, which is not his own.
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Since the right of easement is a precarious and special rights claimed over the land of another, it is highly essential that the pleadings should be precise and the evidence to the said fact should be in consonance of the pleadings. The easement of prescription as envisaged under Section 15 of the Indian Easement Act, 1882 reads as under:
"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
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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 thereof and of the person making or authorizing 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.
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Explanation IV.--In the case of an easement to pollute water, the said period of twenty years begins when the 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."
45. However, the plaint averments indicate to be a public road, the proof of existence of property as opposed to proof of right of way which has been fructified into a easement of necessary are different. To prove the existence of public road, one is required to produce the public records maintained by the competent authorities who are authorised to maintain such records i.e., the Department of Land Records, admittedly not a scrap of paper is produced which shows the existence of the suit schedule road. Much reliance is placed by both the Courts to believe the story of the respondent - plaintiff to hold that the suit schedule property exists at Ex.P-28. Ex.P-28
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clearly indicates that it is a rough hand sketch prepared by the City Municipal Corporation for the purpose of showing land upon which the houses under Ashraya Scheme were being constructed. It is not an authoritative document prepared by the competent authority which would exhibit for establishing the existence of the suit schedule property by the plaintiff. Ex.P-28 nowhere indicates or demonstrates the existence of the suit property, further, the authenticity and reliability of Ex.P-28 itself gets diluted by the admission of the plaintiff in his cross-examination as held as under:
"¤.¦.28 GvÁgÀ vÀAiÀiÁj¸ÀĪÁUÀ £ÀUÀgÀ¸À¨sÉAiÀĪÀgÀÄ ¥ÀæwªÁ¢UÉ £ÉÆÃnøÀÄ PÉÆnÖgÀĪÀÅ¢®è"
46. The burden of proving the said document is on the person who wants to rely on the said map or the plan. Ex.D-23 is the village map produced by the defendant showing the location of the defendant's property and also Block No.1/B marked at Ex.D-23. Ex.D-23 nowhere
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indicates any reference whatsoever regarding the existence of the suit property which passes through the land Block No.1/B or Block No.1/A1. The Courts below believed the existence and user of the same by the respondent-plaintiff and the impugned judgments of the Courts below do not inspire the confidence of this Court, the approach of the trial Court to decree the suit is in a very casual manner and totally lost sight that no material are forth coming that suit property is a road or a pathway used by plaintiff for more than 30 years.
47. The order of the first appellate Court is a non- speaking order and has completely failed to exercise its discretion vested in it under Section 96 of the CPC. The first appellate Court being the last fact finding Court ought to have re-appreciated and reconsidered the entire oral and documentary evidence as held by the Apex Court, in
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the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs.5 at para No.15, has held as under:
"15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings 5 (2001) 3 SCC 179
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supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to
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reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC 120] ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal
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that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."
48. It is also relevant to note that Ex.P-26 is a document, which is drawn before the jurisdictional police pursuant to the complaint lodged by the respondent - plaintiff against alleged construction of the suit schedule property. The said document has been produced in a criminal case, which acquitted the appellant-defendant of
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committal of any offence as alleged. Though the said material, acquittal of the appellant - defendant would have less consequence as the proceedings before the criminal Court is on the benefit of doubt and in the civil proceedings, it is beyond reasonable doubt. Ex.P-26 is at an undisputed point of time, which forms part of another judicial precedent, assumes great significance and has great evidentiary value and destroys and negates the case of the plaintiff and the existence of the suit schedule property. Ex.P-26 goes to show that the road which connects the property situated on the west of the property belonging to the appellant-defendant bearing Block No.1/A1 runs behind the appellant's property and therefore, assuming and not admitting that the property on the west side of the appellant-defendant's property belongs to the plaintiff and the same can be assessed that the road, which runs and passes behind the appellant's property and demonstrates that there is an existence of
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an alternate road to access the property situated on the west of the appellant-defendant's property. The easement of necessity must be an absolute right and not merely convenient mode of enjoyment of the property, as such, an easement of necessity cannot be granted on the ground of convenience and advantage.
49. The existence of a passage to connect the house property and the farm land of the respondent- plaintiff passing through the appellant's property. At the best, same can be claimed on the ground of convenience and advantage and not as a ground of absolute necessity, since there is an alternative road which connects the property to the west of the appellant-defendant's property. The contention raised by the plaintiff that it is his property and has no other access is totally misleading and false. The existence of a right way which is a private right can be established through the document, there is no express or categorical pleading in the plaint as to the
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manner in which the respondent-plaintiff has acquired the so called easementary right on road as pleaded. The Courts below have failed to apply their mind to the pleadings of the parties and evidence produced and leading to perversity of the order. The Apex Court in the case of Suresh Lataruji Ramteke vs. Sau. Sumanbai Pandurang Petkar and others (Civil Appeal No.6070/2023)6, which practically reviews the entire case law on the scope of second appeal while relying on the earlier judgment of the Apex Court in Nazir Mohamed vs. J.Kamala and others7 has clearly recognised that where, (i) Courts below have ignored the evidence or acted no evidence, (ii) the Courts have drawn inference from proof facts by applying the law erroneously or (iii) the Courts have wrongly cast the burden of proof, a second appeal can interfered with and the substantial question of law are answered holding the Courts below 6 2023 SCC Online SC 1210 7 (2020)19 SCC 57
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have not properly appreciated the pleadings and evidence available on record to ascertain whether the plaintiff was not having alternate road to reach his property other than through suit property nor the plaintiff had right to seek easementary without any corroborating evidence and Courts below were not justified in ignoring Ex.P-26.
50. The first appellate Court which is entrusted with the power of re-looking the case in its entirety as being the last fact finding court and the jurisdiction of the first appellate court is amenable to all facts since the concurrent findings of the courts below are not amenable in the second appeal under Section 100 of CPC. Thus, the appellate Court should have cautiously looked into all the material and arrived at a right conclusion.
51. Placing and bearing the principles of law laid down the vulnerability of the second appeal before this Court warrants interference and the substantial question
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of law is answered in favour of the appellant-defendant and accordingly, this Court pass the following:
ORDER
(i) The regular second appeal is hereby allowed.
(ii) The judgment and decree of the Courts below is hereby set aside.
(iii) The suit of the plaintiff is dismissed.
Sd/-
JUDGE S*