Karnataka High Court
Bhatkal Town Municipality vs Smt Bibi Rabia Since Dead By Her Lrs on 30 August, 2012
Author: N.K.Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 30TH DAY OF AUGUST, 2012
: BEFORE:
THE HON'BLE MR. JUSTICE N.K. PATIL
R.S.A.NO. 1047/2003 (Per. Inj.)
Between:
Bhatkal Town Municipality,
Bhatkal, by its Chief Officer,
Bhatkal.
... Appellant
(By Shri. Santhosh B.Mane, for
Shri. A Ananda Shetty, Advocate)
And
Smt Bibi Rabia since dead by her LRS
1. Bibi Khairunnisa,
Aged about 59 Years,
2. Smt. Bibi Khatiza,
Since deceased by LRs
2a)Zukako Ali Saheb
2b)Abdul Ghani
2c)Riyaz Ahmed
2d)Smt.Ayesha
2e)Smt.Mymunna-
2a to 2e) are the Children of
Late Bibi Khairunnisa,
2
All Residents of No.103, Sulthan Street,
Susagadi, Bhatkal Taluk,
Uttara kannada District.
3. Abdul Hameed,
Aged about 54 years,
Respondents 1 to 3 are
Children of Late Smt. Bibi
Rabia Widow of Meera
All R/O No.103, Sulthan Street,
Susagadi Village, Bhatkal Taluk
Uttara Kannada District.
... Respondents
(R1, R2 (a-c) - Notice Served,
R3-Notice served, R2(d) - Service held sufficient vide
order dated 5.8.2005.)
****
This RSA is filed U/S.100 of CPC against the
Judgment and Decree Dated 24.7.2003 passed in RA
No.201/2001 on the file of the Civil Judge (Sr.Dn.), Honavar,
allowing the appeal and setting aside the Judgment and
Decree Dated 9.12.1997 passed in O.S.No.36/92 on the file
of the Civil Judge (Jr.Dn.), Bhatkal.
This RSA coming on for Hearing, this day, the Court,
delivered the following:
JUDGMENT
This is defendant's appeal, directed against the judgment and decree dated 24th July 2003, passed in Regular Appeal No.201/2001, by the learned Civil Judge (Sr.Dn.), Honavar, setting aside the judgment and 3 decree passed by the Trial Court dated 9th December 1997 in O.S.No.36/1992.
2. The defendant/appellant, while challenging the impugned judgment and decree passed by the Lower Appellate Court, has raised the following substantial questions of law, for consideration.
i) Whether the First Appellant Court was right in holding that the Plaintiff has got right of frontage towards eastern side facing N.H.17 or the Main road in spite of the admitted fact that in between the property of the Plaintiff and the Main road (N.H.17) there exists equal extent of owned by the Appellant?
ii) Whether the First Appellant Court could have held that the Plaintiff has got the frontage on the Eastern side without the Plaintiff establishing that her property abuts the main road (N.H.17).
iii) Whether the finding given by the First Appellate Court that the Plaintiff has got frontage on the Eastern side is ignoring the 4 admission by P.W.1, the Report and Sketch of the A.D.L.R. called for by the Court and the Report of the Commissioner?
iv) Whether the First Appellate Court could have decreed the suit when the relief sought for is for bare injunction without claiming any relief of declaration or declarations of frontage or easementary right.
3. The appellant herein was the defendant and the plaintiff, represented by her legal representatives was the plaintiff before the Trial Court and they would hereinafter be referred to, as per their ranking before the Trial Court.
4. The brief facts of the case are that, in Bhatkal Town, there are 2 (Two) Main Roads. They are N.H.17 and Sulthan Street, which are parallel to each other. On either side of Sultan Street, there are residential houses and it is mainly residential area. So far as N.H.17 is concerned which is situated on the Eastern side to the said Sulthan Street, which is mainly 5 a Commercial area, as on either side of the said road Commercial shops and Shopping Complexes are situated. Though any relief of declaration is sought for in the plaint averments, the pleading in the plaint is with regard to the so-called right of easement and also right of frontage to N.H.17. The type of easementary right is not explained and so far as the frontage is concerned, the admitted position is that in between N.H.17 and the property of the Plaintiff, there is the land of the defendant and question of claiming frontage is also not there. Apart from this, the Plaintiff has claimed to be Co-owners and the averments in the plaint are silent as to whether she has got any right to present suit etc. It is an admitted position that just like all other residential houses in the Area, the house of the Plaintiff with the Main door facing on the Western side and having frontage to Sulthan street. The property bearing Survey No.533-B with an area of 0-3-1/4th (A.G.A.) with the Assessment of Rs.6.25 situated on the Eastern side of the suit schedule property is 6 undisputedly a Government land which was granted in favour of the Appellant Municipality as per Order bearing No.130/171 dated 30th September 1961 from the Deputy Commissioner, North Kanara, Karwar, for the purpose of construction of Septic Tank, Urinals, Lavetory etc., The Municipality had paid the occupancy price to the Government vide order dated 1st February 1960 to the Deputy Commissioner, Uttara Kannada, Karwar. Since then, the defendant Municipality is in actual possession and enjoyment of the above property constructing Latrine and Urinals for the use of the general public. Therefore, at no point of time, the respondent or others could use the property of the Municipality, for any purposes. Apart from this, all the properties on the eastern side of the properties of the private owners situated in Sulthan street are owned by various owners who have put up Shopping complexes facing N.H.17. Similarly, the defendant Municipality also had put up Shops on the portion of the land in its possession and there is no question of any frontage 7 available to the plaintiff to N.H.17, as in between N.H.17 and the property of the respondents the property of the Municipality is situated. As stated earlier the only frontage available to the plaintiff is on the Western side facing Sulthan Street.
5. It is the case of the defendant that the Trial Court framed seven issues for consideration and the important issues are Issue Nos. 2, 3 and 4, on which the relief claimed by the respondents rests. All these three issues are held in the negative and the suit came to be dismissed.
6. It is the further case of the defendant that, before the Trial Court, the plaintiff, i.e. the plaintiff did not step into the Witness Box and it is only her son who was examined as P.W.1 without producing any authority for such appearance. He has admitted that the plaintiff's house with frontage on the Western side, while admitting that all the houses on that side face towards west only with the Main door on the Western side. The Commissioner was appointed and his report 8 also substantiates the said feature. It is also the admitted position that the plaintiff's house abuts the Sulthan street and the Trial Court has therefore, proceeded to hold that there is no dispute between the parties regarding frontage of the plaintiff on the western side. It was also not the case of the plaintiff before the Trial Court that there is any interference with her right with regard to the frontage on the Western side of Sulthan street.
7. The defendant also submits that 'A' Schedule property belonging to the plaintiff abuts the Main road on the Eastern side on the basis of which she has claimed right of frontage. However such a right of frontage will be available only if there are no-other properties existing between the property of the plaintiff and N.H.17. P.W.1 in his deposition has clearly admitted that on the west of N.H.17, the property of Municipality is situated and on the west of the Municipality's properties, the property of the Plaintiff is 9 situated. Having regard to this clear admission, question of frontage on the eastern side is not at all there. Apart from this, P.W.1 failed to establish any authority executed in his favour to depose on behalf of the Plaintiff. In addition to this, the report of the Commissioner and Exhibit D3, the Survey Map prepared by the A.D.L.R. Kumta clearly establishes that the Plaintiff has no right of frontage on the eastern side. The Report of the A.D.L.R. was called for by the Court itself which was prepared on 2.1.1988 which is a public document which supports the case of the defendant. Apart from this plaint sketch produced by the very Plaintiff under Exhibit P.4 also supports the case of the defendant. The documents, i.e. Record of Right, Survey Map produced as Exhibit D1 and Exhibit D3 also supports the case of the defendant to the effect that the property of the Municipality is situated in between the property of the Plaintiff and N.H.17. There is no main road (N.H.17) abutting the Schedule 'A' property of the Plaintiff. The defendant holds almost equal extent of 10 property as owned by the Plaintiff under 'Schedule 'A' and such a large chunk of property cannot held to be a road margin also. Under these circumstances, the Trial Court proceeded to hold that the Plaintiff has failed to prove that she has a right of frontage along the Eastern side of her property, in the absence of proving that her own property abuts the main road. The existence of other shops and establishment on either side of such other properties along the North and South of defendant's property also indicates that the entire extent of property on lengthwise or widthwise was never used as a part of road margin. Having regard to all these circumstances, the Trial Court has proceeded to hold that the plaintiff has failed to establish frontage towards the main road that is N.H.17 on the Eastern side and also failed to establish easementary right of any nature enjoyed by the owners of 'A' Schedule property. In that view of the matter the suit filed by the Plaintiff came to be dismissed with a cost of `2000/-. 11
8. The defendant submits that the Plaintiff filed the Appeal before the Lower Appellate Court and the Lower Appellate Court has now reversed the finding of the Trial Court and granted a decree on a most arbitrary grounds, without considering the admission of the P.W.1, the public documents or other materials relied upon by the Trial Court. In spite of the fact of existence of equal extent of land owned by the Municipality on the Eastern side of 'A' Schedule property, still the Appellate Court proceeded to hold that the Plaintiff has got right of frontage on the eastern side and proceeded to decree the suit. Therefore, the plaintiff, represented by her legal representatives was constrained to redress her grievance by presenting the original suit seeking appropriate reliefs, as stated supra.
9. Earlier, the Trial Court, after considering the averments of the plaint and the written statement filed by the defendant, framed necessary points for consideration, which read thus:
12
1. Whether the plaintiff proves that she is a co-owner of suit A Schedule property?
2. Whether she proves the existence of road on the eastern and western side of A schedule property?
3. Whether she proves that she has been enjoying the open space between the road and A schedule property as frontage and access since time immemorial?
4. Whether the plaintiff proves that she has acquired a right of easement by prescription and as of necessity?
5. Whether plaintiff proves that the proposed construction obstructs the frontage, access and opening to her property?
6. If so, is she entitled for the relief of permanent injunction as prayed for?
7. What decree or order?
10. The Trial Court, after appreciation of the oral evidence of PWs.1 and 2 and DWs.1 and 2 coupled with 13 the documentary evidence at Exs.P1 to P5 and Exs.D1 to D13(a), and evaluation of the same as paragraphs 13 to 15 of its judgment, has recorded a finding of fact, holding that in spite of giving sufficient opportunity, the plaintiff has failed to establish that she has got easementary rights in respect of the disputed lands and answered issue No.1 in the affirmative. It answered issue No.2 in part, holding that the road exists only on the western side; issue Nos.3 to 6 in the negative and issue No.7 as per the final order, dismissing the suit filed by the plaintiff, represented by her legal representatives, holding that there is no property belonging to the defendant in between her own property and the road on her eastern side and that it was a bare necessity on the part of the plaintiff to establish that the plaintiff had willfully and intentionally violated the orders of this Court. Being aggrieved by the judgment and decree passed by the Trial Court, the plaintiff, represented by her legal representatives filed a Regular 14 Appeal No.201/2001 on the file of the learned Civil Judge (Sr.Dn.) Honavar.
11. The Lower Appellate Court, after going through the judgment and decree passed by the Trial Court and after hearing the learned counsel appearing for the parties, framed necessary points for consideration as follows:
1. Does the plaintiff proves the right of access to her 'A' schedule property from eastern side of the highway and right of frontage to her property?
2. Does the plaintiff proves interference and threat by the defendant to the said frontage and right of her such access to her property?
3. Is the plaintiff entitled for injunction prayed for?
4. Is interference to any of the findings of the Trial Court necessary?15
5. What would be the correct and proper order or relief in the circumstances of the case?
6. What decree or order?
12. After going through the judgment and decree passed by the Trial Court and other material available on file and after hearing both the sides, the Lower Appellate Court observed while answering point No.4 that the Trial Court though has discussed at length the evidence placed before it, has committed an error in appreciating with prospective angle and the decisions cited on behalf of the defendant were also made available for discussion before the Trial Court. The Trial Court erred in taking a view that the house of the plaintiff is facing towards western side and the door of her house opens into the western road namely Sultan Street. The Trial Court has also committed an error in finding fault with the plaintiff for not producing best possible evidence. Here, had the Trial Court appreciated the admission of the DW1, the Chief Officer of the defendant in perspective manner, it 16 would not have come to such a conclusion. Therefore, the Lower Appellate Court observed that the Trial Court erred in coming to a wrong conclusion, finding fault with the plaintiff and imposing a compensatory cost of `2,000/-. Further, DW1, the Chief Officer of the defendant - Municipaliaty has admitted many of the facts to be proved by the plaintiff. The Tribunal grossly erred in applying the decisions placed before it that the admissions of DW1, contrary to the documentary evidence available on file, specifically Exs.P3 and P4, while answering point No.4 in the affirmative.
13. Further, so far as Points 5 and 6 is concerned, the Lower Appellate Court, having come to the conclusion that the plaintiff has established her right of ingress and egress from the suit property to highway has to protect frontage and restrain the defendant from posing threat to the right of plaintiff. Thus, the plaintiff is entitled for injunction restraining the defendant from putting up any structure and thus answered issue Nos.5 and 6 and it allowed the appeal with costs and set aside 17 the judgment and decree of the Trial Court in dismissing the suit of the plaintiff with costs and exemplary costs of `2,000/-. The Lower Appellate Court, thereafter decreed the suit of the plaintiff in O.S.No.36/1997 on the file of the Trial Court, restraining the plaintiffs, their officials, and their men by way of permanent injunction from constructing or erecting any building or structure in between the plaint 'A' schedule property and highway on the east road margin obstructing the frontage of 'A' schedule property or ingress and egress from the road to the suit 'A' schedule property. Being aggrieved by the impugned judgment and decree passed by the Lower Appellate Court, the defendant has presented this appeal, seeking appropriate reliefs, as stated supra.
14. The submission of the learned counsel appearing for the defendant/appellant, at the outset is that the Lower Appellate Court grossly erred in answering point No.4 in the affirmative and Point Nos.5 and 6, as per the final order, holding that the Trial Court has committed grave error, resulting in serious 18 miscarriage of justice. Further, he vehemently submitted that the Lower Appellate Court has committed an error in not considering the documentary evidence at Exs.P3 and P4, which are the sketch of the Commissioner and his report. The Commissioner has noted in his report two structures of lavatory with a wall in between and this is very close to the highway on its eastern side. Therefore, it is crystal clear that the plaintiff has failed to substantiate the easmentary right. The said aspect of the matter has been duly considered and appreciated by the Trial Court by assigning valid reasons and recorded a finding of fact at paragraphs 13 and 14 of its judgment. But, this aspect of the matter has not been looked into by the Lower Appellate Court and therefore, he submits that answering point No.4 in the affirmative cannot be sustained and is liable to be set aside, by confirming the judgment and decree passed by the Trial Court, which is reversed by the Lower Appellate Court.
15. Original plaintiff is dead and her legal representatives are brought on record. They are served 19 and un-represented. When this matter was posted for admission on 21st February 2004, the appeal was admitted on the following substantial questions of law:
Whether the appellate Court was justified in reversing the findings of the Trial Court even though the plaintiff had not proved a right of easement by way of prescription over the suit property or a dis-used lavatory?
16. It was the case of the plaintiff that she has got easementary right since decades and she has been enjoying the same and she has put up the lavatory and she and her predecessors have been enjoying such frontage and access to the road, since time immemorial as of right, customarily, continuously and openly to the knowledge of all including the defendant and ita predecessors. Hence, it was her case that she claims to have accrued a right of easement also by prescription as well as by custom. Such a frontage access is absolutely necessary for the better enjoyment of the 'A' Schedule property. It is essential for the movement of the people, 20 cattle heads, head loads, vehicles, etc. from the road and road margin to the plaintiff's property and that the defendant has no right to erect any structure in between the said 'A' schedule property and the said Roads, obstructing the said frontage opening and access. It is alleged that the defendant and its officials visited the road margins of the 'A' Schedule property on the eastern side during the first week of February 1992 and started taking measurements. On ascertaining the same, the plaintiff came to know that the defendant intended to construct buildings in the road margins - in between 'A' Schedule property and the road on the eastern side, thereby blocking the plaintiff's suit 'A' property and thus obstructing the frontage. Immediately herself and her family members protested for the time being the defendant was refrained from constructing the building but thereafter when they again attempted, they were determined to go ahead with their construction at a such place, when they do not have any right over the property when she being the owner of 'A' Schedule property. The 21 threat by the defendant is illegal and the defendant has no right to construct any building in such a property. That threat is imminent, since the defendant is not amenable to reasons that constrained the plaintiff to a suit for the requisite relief of permanent injunction. According to the plaintiff cause of action accrued to her in the first week of February 1992 and immediately she has presented the suit.
17. To substantiate her case, she examined PW1, the son of the plaintiff and One Javeed S/o. Bapu Saheb is examined as PW2 and got marked Exhibits P1 to P5 and closed her side, whereas on behalf of the defendant, the Chief Officer of T.M.C got himself examined as DW1 and examined yet another in-charge Chief Officer of the said TMC, as DW2 and got marked documentary evidence at Exs.D1 to D13 and thus the defendant also closed its side. On the basis of the oral and documentary evidence and other material available on file, the Trial Court framed necessary points for consideration as referred above and after thorough trial 22 and after affording reasonable opportunity of hearing to both the parties to adduce oral and documentary evidence and after hearing the learned counsel appearing for the parties, by giving valid reasons at paragraphs 13, and 14, has held that the plaintiff has failed to establish any sort of her vested rights in the property east of her schedule property. It has been conclusively established that, in the east of the plaintiff's property, there exists a property belonging to the defendant. There is no road margin as contended by the plaintiff. All that line of arguments by the counsel for the plaintiff has been in the air. It is not possible to make out any bone out of it, for proceedings in a contempt application. It was a bare necessity on the part of the plaintiff to establish that the contemner had willfully and intentionally violated the orders of the Court. No such violation could be discerned in the fact and circumstances of the case. Accordingly, various applications filed by the counsel for the plaintiff were disposed of and the suit filed by the plaintiff was 23 dismissed. Being aggrieved by the same, the plaintiff, represented by her legal representatives, filed a Regular First Appeal before the learned Civil Judge (Sr.Dn.)Honavar. The Lower Appellate Court, after considering the judgment and decree passed by the Court below and after going through the entire records available on file and after considering the oral and documentary evidence available on file and after re- appreciation of the same, has framed necessary point for consideration as referred above. Thereafter, it observed that if the Trial Court had appreciated the admission of DW1, the Chief Officer of the defendant in proper perspective, it would not have dismissed the suit of the plaintiff. In view of the admission on the part of the officials of the Corporation, the prayer sought for by the plaintiff cannot be sustained and further observed that the Trial Court has committed an error in imposing such exemplary cost, which is also to be corrected and disallowed and it is suffice to say that DW1, the Chief Officer of the defendant Municipality has admitted many 24 of the facts to be proved by the plaintiff. Further, the Lower Appellate Court observed that failure on the part of Trial Court in applying the decisions placed before it that the admissions of the DW1 in not appreciating has led to a wrong conclusion and answered the said point No.4 in the affirmative.
18. It is significant to note that the reasoning given by the Lower Appellate Court in paragraph 29 of its judgment cannot be sustained and it is liable to be set aside at the threshold. When there is clinching oral and documentary evidence available on file, viz. the oral evidence of PW1 and documentary evidence at Exs.P3 and P4, produced by the plaintiff herself, the Commissioner's report and hand sketch as per Ex.D1, the record of rights, pertaining to suit schedule Property bearing Sy.No.533, the Lower Appellate Court ought not to have reversed the finding of the Trial Court. All these oral and documentary evidence including Ex.D3, survey map prepared by the Assistant Director of Land Records, Kumta (ADLR), pertaining to the properties belonging to 25 the plaintiff as well as the defendant, which was prepared on 2nd January 1988 in pursuance of the orders of the ADLR, Kumta, would reveal that such survey belongs to the Town Municipality only. The extent of the property therein is 0-3-1 ¼ of land. This exhibit D1 when read with the contents of the document at Ex.D3, would reveal the location of the property belonging to the defendant. It is a public document and an original document also. It was secured through the process of the Court from the Assistant Director of Land Records and much credibility could always been given to it. A xerox copy of the said document is also got marked as Ex.D3(a). This aspect has been rightly dealt with by the Trial Court at paragraph 14, internal page 27 of its judgment, wherein it is observed that suffice it to sya that, east of the suit schedule 'A' property, there is a property belonging to the defendant bearing Sy.No.533 measuring 0-3-1¼ of land. There is no main road abutting the schedule 'A' Property as contended by the plaintiff. Such a Survey Number, the extent of which is 26 0-3-1¼ cannot be read as forming road margin itself. If it were to form a road margin, then there ought to have been continued road margin both on the northern side and the southern side also. It appears in the evidence of PWs. 1 and 2 only, that there is no such open space on either side abutting the main road. The Court Commissioner's sketch and report would reveal that there are in existence the shop buildings constructed by the defendant only - north as well as the south of the property in Ex.D1. Further, the Trial Court specifically observed that any piece of ambiguous or contrary oral statements on record would not affect the documentary evidence like Ex.P4, relied upon by the plaintiff herself. That lavatory admittedly has been in existence in such a property belonging to the defendant only. The three shops are shown to be in existence in Ex.P4 though PW1 claims that there have been two shops. There is another structure by the side of these three shops along the northern side. The Court Commissioner would not be a competent person to speak to the Survey numbers 27 in which they are in existence. But, the lavatory being in existence abutting the main road is a fact admitted. That property abutting the main road as could be seen from Ex.D1 read with Ex.D3, belonging to the defendant - TMC only. Several nomenclatures used in describing such a property belonging to the defendant cannot be the criteria for determining the rights of the parties. It may be incidentally, a strip of land as contended by the learned counsel for the plaintiff. If such a strip of land were to form part of the road margin itself, then notwithstanding such property belonging to the defendant the plaintiff would have a right of frontage. It is not the case of the plaintiff that there exists any property belonging to the defendant in between her own property and the main road. The evidence on record is wholly contrary to the claim made by the plaintiff. Therefore, it is crystal clear that the Trial Court has come to the conclusion on the basis of the clinching documentary evidence, survey conducted by the ADLR, 28 Kumta dated 2nd January 1988, coupled with the oral evidence of PW1.
19. Therefore, I am of the considered opinion that, the Trial Court is highly justified in considering the oral and documentary evidence, particularly Exs.D1 to D3 and Exs.P3 and P4 and recording a finding of fact holding that the plaintiff has failed to make out a case for granting the relief sought in the suit. Accordingly, after due appreciation of the oral and documentary evidence specifically with reference to Exs.D1 to D3 and P3 and P4 and other relevant material available on file, the substantial question of law framed by this Court, while admitting the appeal, referred above, is answered in the affirmative.
20. In the light of the discussion made above, the Regular Second Appeal filed by the appellant is allowed. The judgment and decree dated 24th July 2003, passed in Regular Appeal No.201/2001, by the learned Civil Judge (Sr.Dn.), Honavar, is hereby set aside; 29
The judgment and decree passed by the Trial Court dated 9th December 1997 in O.S.No.36/1992 is hereby confirmed.
Further, it can be seen that both the Courts below have failed to take a judicial note that when the plaintiff has registered a suit against the Municipality, no mandatory notice as such is issued under Section 80 of the Civil Procedure Code. This aspect of the matter has been completely lost sight of by both the Courts below and also the parties concerned. If this aspect is taken into consideration, then also, the plaintiff, represented by her legal representatives is not entitled to the relief sought for by them in this appeal.
Sd/-
JUDGE BMV*