Karnataka High Court
Jayanti vs M.H Yogesh on 12 August, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO.30 OF 2010
BETWEEN:
JAYANTI
W/O LATE ANANTH
AGED ABOUT 49 YEARS
DOOR NO. 363/2, CHALUVAMBA AGRAHARA,
MYSORE-570001
...APPELLANT
(BY SMT.VIDYA SELVAMANY, ADVOCATE)
AND:
M.H YOGESH
S/O LATE M.H.HANUMATHARAYAPPA,
MAJOR,
D.NO. 363, CHALUVAMBA AGRAHARA,
MYSORE-570001.
...RESPONDENT
(BY SRI.N KUMAR, ADVOCATE FOR C/R)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 18.11.2009 PASSED IN
R.A.360/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-II, MYSORE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED: 26.10.2006
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PASSED IN O.S.840/2003 ON THE FILE OF THE PRL. I CIVIL JUDGE
(JR.DN) AT MYSORE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.08.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned appeal is filed by defendant questioning the judgments and decrees of the Courts below in decreeing the suit, declaring that plaintiff is entitled to use the common passage measuring 43 ½ x 3 feet in the property, and consequently, defendant is directed to remove the compound wall constructed in the said common passage.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The facts of the case are as under:
Plaintiff has instituted a suit to declare that he has got a right to use the suit schedule property in pursuance of the agreement dated 21.10.1983. Plaintiff has also sought relief of mandatory injunction to direct the defendants to restore the 3 suit common passage by removing Tulasi Katte and tap and also to demolish the compound wall constructed in the common passage during the pendency of the suit. The plaintiff has also sought the relief of perpetual injunction.
3(a) Plaintiff has claimed that the residential house bearing Municipal door No.362 is bequeathed by one M.H. Ramu in favour of plaintiff under registered Will. Plaintiff claims that under the Will, the owner of the residential house has clearly reserved the right of using the suit common passage in favour of the plaintiff. The plaintiff has further contended that the suit passage is exclusively meant for use by adjoining owners including plaintiff, which is described in the schedule annexed to the plaint. Apart from Will, the plaintiff is also asserting right over the suit passage based on the agreement dated 21.10.1983 entered into between the original owner M.S. Ramu, Smt.Lalithamma and the husband of defendant. The plaintiff has also claimed that the husband of defendant has also signed the said agreement. Therefore, 4 plaintiff claims that he is entitled to use the East-West common passage which leads to Srinivasa Temple Road.
3(b) The defendant on receipt of summons contested the proceedings by filing the written statement. The defendant stoutly denied the entire averments made in the plaint. The defendant claimed that her husband has purchased the property bearing door No.362/2K under the registered sale deed dated 24.4.1983 measuring 43 ft. 6"
East-West and 23 ft. North-South (measuring 43 ½ x 20 feet), The defendant claimed that from the date of purchase, the defendant's husband was in exclusive possession. Defendant specifically pleaded that in the sale deed obtained by her husband, there is no reference with regard to the existence of any conservancy lane or passage as alleged in the plaint. On these set of defence, the defendant sought for dismissal of the suit. The defendant also filed additional written statement.
3(c) The plaintiff and defendant in support of their contentions led oral and documentary evidence. The Trial 5 Court having appreciated the oral and documentary evidence has answered issue Nos.1 and 2 in the affirmative and Issue No.3 partly in the affirmative. The Trial Court having examined the evidence on record has come to the conclusion that the plaintiff has succeeded in proving that the suit schedule property is a common passage. However, the Trial Court while considering Ex.P12 was of the view that the agreement dated 21.10.1983 is not proved by the plaintiff. The Trial Court has also come to the conclusion that during the pendency of the suit, the defendant has removed the Tulasi Katte and also the tap and has constructed compound wall during the pendency of the suit.
3(d) The defendants feeling aggrieved by the judgment and decree of the Trial Court preferred an appeal before the Appellate Court. The Appellate Court has concurred with the finding of the Trial Court and has proceeded to dismiss the appeal.6
It is against these judgments and decrees of the Courts below, the defendant has filed the present second appeal.
4. This Court vide order dated 24.2.2010 has formulated the following substantial question of law:
"(1)Whether the Courts below could have held unregistered documents such an agreement said to have been entered into between the plaintiff and husband of the appellant overriding registered as a document namely, the sale deed which is in respect of the property, over which the plaintiff was claiming a right of passage?
(ii)Whether the Courts below were justified in overlooking the bar under Section 78 of the Indian Succession Act, in a bequest being made in respect of the property which did not belong to the testator?
(iii)Whether the Courts below were justified in allowing a claim on the ground that the disputed passage was easement of an necessity, by virtue of the same having been granted in a bequest by the father of the plaintiff, when the father of the plaintiff had no right or claim in respect of the property of the appellant?"
5. Heard the learned counsel for the appellant- defendant and the learned counsel for the respondent-plaintiff.
6. Plaintiff is asserting right over the property owned by the defendant. Plaintiff claims that there is a common 7 passage running between the property owned by one Lalithamma and the defendant. Plaintiff claims that this suit passage is a East-West passage which connects to the Venkataramana Devasthan on the Western side. Plaintiff's property is situated towards the Eastern side, while the defendant's property is situated on the Western side. Plaintiff is seeking access through this East-West common passage to have access to the Western side temple.
7. The entire claim and right over suit passage is based on a Will alleged to have been executed by the erstwhile owner namely Ramu. The testator's property is situated on the Eastern side to which the plaintiff has succeeded under the Will. Plaintiff claims that testator has indicated the existence of the suit passage. The question that needs to be examined is that, whether a testator who has no semblance of right over the property can create a right under the Will though under the registered Will the testator was capable of bequeathing only the property bearing door 8 No.362. The question that arises for consideration is as to whether open space which is part and parcel of defendant's property could be made the subject-matter of the Will. My answer is "No".
8. An easementary right either by way of prescription or necessity has to be pleaded and acquisition of such a right has to be made out by producing documentary evidence. A foundation has to be laid in the plaint. Except bald allegations in the plaint indicating that there is a common passage which runs East-West, there is absolutely no material placed on record indicating acquisition of easementary right in the common passage. Admittedly, the common passage is not located between the property of the plaintiff and defendant. Plaintiff's residential house is towards Eastern side while the defendant's property is on the Western side. To the North of defendant's property, property owned by one Lalithamma is situated.
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9. Defendant in the cross-examination has succeeded in eliciting that plaintiff has access on the Eastern side. Defendant has further elicited that defendant is using the Eastern road which is known as Cheluvamba Agrahara Road. The relevant portion of cross-examination of plaintiff is culled out as under:
"gÁªÀÄÄgÀªÀgÀÄ «¯ï §gÉ¢gÀĪÀ D¹ÛAiÀÄ°è £Á£ÀÄ, JA.f.C£ÀAvï, JA.f gÀWÀÄ, JA.f.ªÀÄAdÄ£ÁxÀ, «dAiÀÄPÀĪÀiÁgï, JA.f ±ÀAPÀgï, ¥ÀæPÁ±ï¨Á§Ä J£ÀÄߪÀªÀgÄÀ ªÁ¸ÀªÁVgÀÄvÉÛêÉ. CªÀgÉ®ègÀÆ ¥ÀƪÀð ¢QÌ£À°ègÀĪÀ gÀ¸ÉÛ¬ÄAzÀ vÀªÀÄä ªÀÄ£ÉUÀ½UÉ §AzÀÄ ºÉÆÃUÀÄwÛzÁÝgÉ JAzÀgÉ ¸Àj. ªÀÄzÀÄVjgÁªÀÄÄ, ®°vÀªÄÀ ä ºÁUÀÆ JA.f.C£ÀavÀÄgÀªÀgÀ ºÉ¸ÀjUÉ DVgÀĪÀ PÀæAiÀÄ¥ÀvÀæUÀ¼À°è PÁªÀÄ£ï ¥Áå¸ÉÃeï §UÉÎ £ÀªÄÀ ÆzÀÄ ªÀiÁr®è J£ÀÄߪÀ «ZÁgÀ £À£ÀUÉ UÉÆvÀÛ®è. ¥ÀæwªÁ¢ ªÀÄvÀÄÛ ®°vÀªÀÄägÀªÀgÀ ªÀÄ£ÉUÀ¼À ªÀÄzsåÉ AiÀiÁªÀÅzÉà ¥Áå¸ÉÃeï E®è JAzÀgÉ ¸ÀjAiÀÄ®è.
Xxxxxx £Á£ÀÄ ºÉýgÀĪÀAvÉ C°è AiÀiÁªÀÅzÉà ¥Áå¸ÉÃeï EgÀĪÀÅ¢®è CzÀÝjAzÀ ¥ÀæwªÁ¢AiÀÄÄ D ¥Áå¸ÉÃeï£À°è AiÀiÁªÀÅzÉà UÉÆÃqÉ ºÁQ®è JAzÀgÉ ¸ÀjAiÀÄ®è, £Á£ÀÄ ¥ÀƪÀðzÀ PÀqÉ EgÀĪÀ ªÀÄÄRå gÀ¸ÉÛ¬ÄAzÀ¯Éà NqÁqÀÄwÛzÀÄÝ £À£ÀUÉ AiÀiÁªÀÅzÉà vÉÆAzÀgÉ DV®è JAzÀgÉ ¸ÀjAiÀÄ®è."
This evidence clearly establishes that plaintiff has an access towards the Eastern side and it is further elicited in the cross-examination that plaintiff and other adjoining owners are using the common passage leading to the Eastern road. 10
10. Plaintiff has placed reliance on an agreement dated 21.10.1983. This document is discarded by the Trial Court as well as the Appellate Court. If this document is ignored, the entire claim of the plaintiff hinges on the Will vide Ex.P11. If testator had not acquired an easement right and if there is no evidence to that effect, the property bequeathed in favour of the plaintiff would not create an easementary right in defendant's property. Though plaintiff claims right of way, plaintiff has not sought the relief of declaration indicating that he has got a easementary right in the suit common passage. It is not his case that the adjoining properties were part and parcel of one compact block and on severance, right of easement by way of necessity arises. The clinching evidence on record clearly demonstrates that plaintiff has convenient alternate routs and further categorical admissions in the cross- examination clearly shows that there is a common passage abutting to plaintiff's property which leads to Eastern road. Therefore, even otherwise, plaintiff cannot assert right over 11 the property owned by defendant under the garb that the passage is kept common and he is entitled to use the same.
11. It is more than trite that a necessity to claim the right of way must be an absolute necessity and not a convenient mode of enjoyment of property. Existence of alternate pathway, however inconvenient is sufficient to reject the easementary rights. Plaintiff claims that the common passage is exclusively meant to be used by plaintiff and defendant and adjoining owners. Except these bald allegations there is no foundation as to how the plaintiff is entitled to have access through the alleged common passage. Except pleadings at para 3 of the plaint to the effect that the said passage is exclusively meant to be used by plaintiff, defendant and other owners and that plaintiff has common right over the suit passage, no credible evidence is placed on record.
12. The Trial Court has proceeded to decree the suit on an assumption that defendant's husband was in the care and 12 custody of Ramu-testator and therefore, the Trial Court proceeds to grant right over the passage. The said finding is perverse. The Appellate Court has also mechanically recorded findings on the same lines. The Trial Court has placed reliance on the contents of the Will where there is a reference that there is a common passage between the property of one M.P .Lalithamma and one M.G. Ananthu, who is the husband of defendant. This finding is palpably erroneous. This Court is of the view that the suit itself was not maintainable and therefore, both the Courts erred in granting the relief of declaration declaring that plaintiff is entitled to use the common passage in the absence of plaintiff claiming easementary rights in respect of the suit common passage. The finding of the Trial Court that since the Will reveals the existence of common passage and since nothing is elicited by plaintiff to disbelieve their evidence is palpably erroneous and these findings recorded by the Trial Court and confirmed by the Appellate Court suffers from serious infirmities. 13
13. Both the Courts have failed to note that the evidence led by plaintiff does not carry any evidentiary value. An easementary right either by way of necessity or prescription cannot be created by a Will. The testator admittedly had no semblance of right in the passage situated between two private parties. Therefore, he could not have created a right in favour of plaintiff under the bequeath. Therefore, both the Courts have erred in not properly appreciating the pleadings and the evidence on record. Therefore, the substantial question of laws framed are accordingly answered in the negative.
14. For the foregoing reasons, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree of the Trial Court dated 26.10.2006 passed in O.S.No.840/2003 and confirmed by the 14 judgment and decree of the Appellate Court dated 18.11.2009 in R.A.No.360/2009 are hereby set aside.
(iii) The suit is decreed with costs.
Sd/-
JUDGE *alb/-