Karnataka High Court
Basanagouda vs Peerasab Huchchesab Challamarad on 9 January, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No.5588 of 2009
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
R.S.A.NO.5588 OF 2009
BETWEEN:
BASANAGOUDA
S/O FAKIRAGOUDA SHIRUR,
AGE 38 YEARS, OCC: DOCTOR,
R/O MANIHAL, TQ-RAMDURG,
DIST BELGAUM.
...APPELLANT
(BY SRI B V SOMAPUR AND
SRI S R RODARATTI, ADVOCATES)
AND:
PEERASAB HUCHCHESAB CHALLAMARAD
AGE 48 YEARS OCC: AGRICULTURE,
R/O MANIHAL TQ-RAMDURG,
DIST: BELGAUM.
...RESPONDENT
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS
COURT TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) RAMADURG, IN
R.A.NO.17/2009, DATED 07.10.2009 VIDE ANNEXURE-A & B.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No.5588 of 2009
JUDGMENT
1. The present appeal is filed by the plaintiff aggrieved by the judgment & decree dated 07.10.2009 passed in R.A.No.17/2009 on the file of Civil Judge (Sr.Dn.), Ramadurga (hereinafter referred o as "the First Appellate Court" for short) in and by which, the First Appellate Court while allowing the appeal filed by the defendant, set aside the judgment and decree dated 08.07.2011 passed in O.S.No.86/2006 on the file of Civil Judge (Jr.Dn.) Ramdurga (hereinafter referred to as "the Trial Court" for short).
2. Brief facts of the case are that, the aforesaid suit in O.S.No.86/2006 was filed by the plaintiff for the relief of permanent injunction restraining the defendant from constructing any wall or chavani or room in the property mentioned as "AEFG" shown in the rough sketch produced along with plaint.
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3. It is the case of the plaintiff that, he is the owner and in actual possession of the property bearing VPC No.1191 situated at Manihal village (hereinafter referred to as "the suit property" for short) described in the plaint. That the defendant is the owner of the suit property shown in the rough sketch. The defendant is trying to construct a room measuring 8 x 6 feet in-front of his house unauthorizedly, if the defendant constructed the said room the same would effect the right of way of plaintiff, which the plaintiff has been enjoying as passage to reach his house since his childhood. That the plaintiff acquired right by way of prescription and the said passage is only mesne of access to the house of the plaintiff, hence, suit for permanent injunction.
4. Defendant appeared and filed his written statement denying all the plaint averments and also questioning very maintainability of the suit. It is the specific contention of the defendant that the plaintiff ought to have filed a suit for relief of declaration of he having -4- RSA No.5588 of 2009 acquired the purported right of easement by way of prescription and that not having been done, suit of the plaintiff for bare injunction is not maintainable. It is the further contention of the defendant that he has obtained necessary permission from the Gram Panchayath for construction of the building in-front of his house and the same would not cause any inconvenience to the plaintiff. That the plaintiff has not specifically stated as to whom does the property over which the defendant is putting up construction belong to and that unless the plaintiff admits ownership of the defendant over the property, plaintiff cannot seek for easementry right, hence sought for dismissal of the suit.
5. The Trial Court based on the pleadings framed the following issues for its consideration.
1. Whether the plaintiff proves that he is having easementry right over the suit property?
2. Whether the plaintiff proves that the defendant is causing interference to the -5- RSA No.5588 of 2009 plaintiff of easementry right over the suit property by the plaintiff?
3. Whether the plaintiff is entitled for the relief as sought for?
4. What order?
6. The plaintiff examined himself as PW.1, another witness as PW.2 and exhibited eight documents as Exs.P.1 to P.8. Two witnesses have been examined on behalf of the defendant as DWs.1 & 2 and exhibited five documents as Exs.D.1 to D.5.
7. The Trial Court on examination and on appreciation of documentary and oral evidence on record, decreed the suit of the plaintiff restraining the defendant by way of permanent injunction from constructing any wall or chavani or room etc., over the suit property shown in the letter "AEFG".
8. Being aggrieved by the same, the defendant preferred regular appeal in R.A.No.17/2007 before the First Appellate Court. Considering the grounds urged in -6- RSA No.5588 of 2009 the memorandum of appeal, the First Appellate Court framed the following points for its consideration.
1. Whether the suit filed by the plaintiff without seeking the relief of declaration to declare that, he has acquired the right of easement over the suit property is maintainable?
2. Whether the judgment and decree under appeal warrants interference?
3. What order?
9. The First Appellate Court on re-appreciation of evidence on record and position of law, held Point No.1 in the negative and the point No.2 in the affirmative and consequently allowed the appeal setting aside the judgment and decree dated 08.07.2009 passed by the Trial Court in O.S.No.86/2007 and eventually dismissed the suit. Being aggrieved by the same, the plaintiff is before this Court.
10. This Court by order dated 27.11.2009 framed the following substantial questions of law for consideration.
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"Whether the lower appellate Court was justified in reversing the judgment and decree passed by the trial court and dismissing the suit on the ground that in the absence of the plaintiff seeking declaration that he has acquired easementary right by way of prescription for the suit passage, he was not entitled for the relief of permanent injunction having regard to the fact that the pleadings and the evidence on record show that the passage in question is not part of the defendant's property and also in the light of the findings recorded by the trial Court that there was no valid licence obtained by the defendant to put up the construction on the suit property.
11. Heard Smt.Ranjita Reddy learned counsel appearing for the appellant and Sri S.B.Doddagoudra appearing for the respondent and perused the records.
12. Learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submits that, the plaintiff has been utilizing the suit space as passage. In paragraph No.3 of the plaint has given description of the property, which is as under: -8- RSA No.5588 of 2009
"III) Description fo the suit property:- The suit property is the open space, infront of the plaintiff house V.P.C.No.1191 in Ward No.VI of the Manihal village.
The suit property is bounded by To East :- House of Defendant To West :- Drain cum passage To North :- House of Surakod and Chellamarad.
To South :- V.P.C.House No.1191 of
Plaintiff.
For the more convincing the whole suit property is explained by letters A.B.C.D.E and the area by letters A.E.F.G is the space 8' X 6' where in the defendant unauthorisidely digged out the ground, for construction of room at the space being used by plaintiff for coming in and going out. The separate hand sketch is annexed, the same be read as component part of the plaint."
13. At paragraph No.4 of the Plaint the plaintiff has pleaded as under:
"It is most humbly submitted that, the same is being used by the plaintiff since childhood as passage, so the plaintiff have a right of easement -9- RSA No.5588 of 2009 by way of prescription over the suit space without interruption by defendant or the residents in the Oni, this is the only space for the plaintiff to use."
14. Thus, perusal of the aforesaid averments in the plaint, make it clear that the plaintiff is conscious of the fact and has so pleaded, that he is claiming relief of permanent injunction based on his purported right of prescription to use the suit space as passage.
15. As rightly pointed out by learned counsel for the respondent that, in the entire plaint there is no whisper as to whom does the suit property belong to. In the absence of the basic elementary pleading in suit for prescription as the one at hand, it is not appropriate to grant the relief of prohibitory injunction without there being a specific averment as to the property over which the right of easement is claimed and the ownership of the property over which such right of prescription is claimed.
16. It is a trite law that in a suit claiming right of easement it is necessary to provide description of
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RSA No.5588 of 2009 dominate tenement and servient tenement. In the absence of these two elements there cannot be suit claiming right of easement.
17. The apex Court in the case of BACHHAJ NAHAR VS. NILIMA MANDAL AND ANOTHER reported in (2008) 17 SCC 491 has held that in the absence of these basic specific averments in the plaint and the plaintiff in the absence of establishing his case of he perfecting his right of easement by prescription and seeking right of declaration in this regard he is not entitled for relief of bare injunction.
18. The Trial Court has not appreciated this aspect of the matter. The Trial Court seemed to have adjudicated all the issues only with regard to the defendant purportedly not obtaining the permission to put up the structure which may not be germane for the purpose of determination of issue involving a claim for right of easement.
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RSA No.5588 of 2009
19. Though learned counsel for the appellant attempted to point out from the evidence more particularly suggestions made in the cross-examination to the defendant witnesses with regard to his property, the very suit being the one for right of easement, the said suggestion would go contrary to the case of the plaintiff. It is not even this case of the plaintiff that the suit property is a public road or public passage. If that is the case of the plaintiff, the scope of the matter would be entirely different.
20. Since the suit is one for permanent injunction claiming right of easement as a passage plaintiff ought to have pleaded and sought for relief of declaration of such right.
21. The Trial Court and the First Appellate Court have not adverted to this aspect of the matter, though the appeal was allowed by the First Appellate Court.
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RSA No.5588 of 2009
22. In that view of the matter, the substantial question of law is answered accordingly and the appeal is dismissed.
23. Notwithstanding the dismissal, the plaintiff is entitled to seek such relief if available under law.
24. In view of dismissal of the appeal pending applications, if any, do not survive for consideration and the same are disposed of accordingly.
sd JUDGE EM List No.: 1 Sl No.: 48