Karnataka High Court
Girijamma vs Srinivasa Rao on 21 March, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:5635
RSA No. 120 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 120 OF 2006
BETWEEN:
1. GIRIJAMMA W/O. H.MANJUNATH ADIGA,
AGED ABOUT 75 YEARS,
R/AT: KALAMANDIR ROAD,
OPP. SUPRIYA LODGE,
GADAG - 582 102.
2. SRI. SURESH
S/O. H.MANJUNATH ADIGA,
AGED ABOUT 52 YEARS,
R/AT: KALAMANDIR ROAD,
OPP. SUPRIYA LODGE,
GADAG - 582102.
3. SRI. CHANDRASHEKAR,
S/O. H.MANJUNATH ADIGA,
Digitally signed AGED ABOUT 45 YEARS,
by SUJATA R/AT: KALAMANDIR ROAD,
SUBHASH
OPP: SUPRIYA LODGE,
PAMMAR The appellant no. 3 & 4
GADAG - 582102. are treated as LRs of
Location: HIGH
COURT OF deceased Appellant No.1
4. SRI. RAMESH & 2 as per Order dated
KARNATAKA S/O. H.MANJUNATHA ADIGA, 29.02.2024.
AGED ABOUT 44 YEARS,
R/AT: KALAMANDIR ROAD,
OPP. SUPRIYA LODGE,
GADAG - 582102.
...APPELLANTS
(BY SRI. G BALAKRISHNA SHASTRY., ADVOCATE)
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NC: 2024:KHC-D:5635
RSA No. 120 of 2006
AND:
1. SRINIVASA RAO
S/O. LAKSHMINARAYANARAO KARANT,
SINCE DECEASED BY HIS LRS
1A. DR. VENKATESH SHRINIVAS KARANTH,
AGE: 48 YEARS, OCC: DOCTOR,
R/O.: SHANKARACHARYA ROAD,
DIST: GADAG, GADAG - 582 101.
1B. SRI. UMESH SHRINIVAS KARANTH
AGE: 45 YEARS, OCC: SERVICE,
R/O. KALAMANDIR ROAD,
DIST: GADAG, GADAG -582 101.
1C. SMT. REKHA D/O. SHRINIVAS KARANTH,
AGE: MAJOR, OCC: NOT KNOW
R/O. KALAAMNDIR ROAD,
DIST: GADAG, GADAG - 582101.
...RESPONDENTS
(BY SRI. V P KULKARNI, ADVOCATE FOR R1(A AND B);
SRI. SANGRAM S. KULKARNI, ADVOCATE FOR R1(C).
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 28.09.2005 PASSED IN
R.A.NO.168/1999 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN),
GADAG, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 30.10.1999 PASSED IN
O.S.NO.85/1996 ON THE FILE OF THE II ADDL. CIVIL JUDGE
(JR.DN), GADAG.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:5635
RSA No. 120 of 2006
JUDGMENT
This regular second appeal is filed by defendant Nos.1 to 4 challenging the judgment and decree passed in R.A.No.168/1999 dated 28.09.2005 by Addl. Civil Judge (Sr.Dn.), Gadag which set aside the judgment and decree passed in O.S.No.85/1996 dated 30.10.1999 by III Addl.Civil Judge (Jr.Dn.), Gadag.
2. Against the divergent finding of fact defendant Nos.1 to 4 have preferred regular second appeal.
3. For the purpose of convenience, ranking of the parties is referred as per their status before the trial Court.
4. The plaintiff has filed suit for declaration that plaintiff has acquired easementary right by way of prescription by making use of the suit passage 'EY' continuously and without interruption in his right for more than 25 years and consequential decree of perpetual injunction against the defendants. It is the case of the plaintiff that plaintiff and defendants are owners of adjacent properties; super structure belonging to them originally -4- NC: 2024:KHC-D:5635 RSA No. 120 of 2006 belongs to Sri.Jagathguru Todada Samsthan Swamiji. The husband of defendant No.1 and father of other defendants purchased the property bearing CTS No.3787/48A/1A/1B1 on 11.12.1957 and constructed residential house on the said property. Further, it is stated one Krishna L Karanth-elder brother of plaintiff has purchased the adjacent property bearing No.3787/48A/1A/1B2 from the said Swamiji on 11.12.1957 and he too put up construction of house and residing along with the plaintiff. The hand sketch map is produced along with the plaint. The plaintiff's property is shown by letters 'AFED'. It is the case of the plaintiff that the plaintiff has been using the passage through G-1 Gate-G1 as shown 'EY' and it is being using for ingress-egress for more than 25 years from the time of his elder brother Krishna Laxman Karanth and that is not obstructed by the defendants for more than 25 years. Subsequently, the defendants have started obstruction to use the said passage 'EY'. Hence, plaintiff is constrained to file suit for declaration of claiming easementary right over the passage through 'EY' through Gate-G1.
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006
5. It is the case of the defendants that the plaintiff has not been using the said passage as he contended for more than two decades and also denied that the plaintiff and the family members used to pass through G-1 gate to reach their house and thus, never used the passage G-1Y. Further submitted that the plaintiff has not become the owner by virtue of Will stated to have been executed by his elder brother K.L. Karanth. Further submitted that the said passage is in exclusive use of the defendants and family members and there are trees, flower plants etc., on the said passage. Therefore, it was never used as a common passage allowing the plaintiff. Thus, denied the plaintiff has acquired the right of way through prescription and pleaded that the suit filed is misconceived one with frivolous ground just to claim the property belonging to the defendants. Therefore, prays to dismiss the suit.
6. The plaintiff has examined three witnesses as PW.2 to 4 and himself examined as PW.1 and got marked documents at Exs.P.1 to P.3(a). The defendants have examined two witnesses as DW.1 and 2 and defendant No.3 is examined as DW.1 and got marked documents at Exs.D.1 to D.12. -6-
NC: 2024:KHC-D:5635 RSA No. 120 of 2006
7. The Trial Court has framed issue casting burden on the plaintiff whether he has proved that he had acquired easementary right of way by prescription by making use of the suit passage EY (also G-1Y). The Trial Court after appreciating the evidence on record, dismissed the suit by holding that the plaintiff has failed to prove the easementary right of way by prescription. The Trial Court appreciated that when K.L. Karanth had purchased the property, there is no mentioning in the boundaries that there is use of passage and also there is no recital in the Will executed by the elder brother Krishna K.L. Karanth in respect of EY passage through G-1 gate. Further the plaintiff has failed to produce the documentary evidence in respect of claiming right of easement by way of prescription. Further the Trial Court has appreciated the evidence on Exs.D6 and D8 and D9 to D11(a) that these documentary evidence have falsified the contention of the plaintiff regarding using of G-1 gate in the EF compound wall through EO passage in order to reach their house and vice versa. Further the Trial Court has appreciated evidence on record, that as per Ex.D4 document wall is constructed on AD line and this goes to show that there is no passage to reach to the house of plaintiff through EY -7- NC: 2024:KHC-D:5635 RSA No. 120 of 2006 crossing AD wall. Further observed that what the plaintiff is contending that there is passage through 'EY' but there are plants, trees, and Tulasi Katta. Therefore by Court Commissioner report, it is proved that there are trees and plants. Hence, the said area is not a common passage. Hence, on all these reasons dismissed the suit.
8. The First Appellate Court on the appeal filed by the defendants has reversed the judgment and decree passed by the Trial Court on the reason that the plaintiff has been residing in the house A, B, C and D along with his elder brother K.L. Karanth and said Krishna K.L. Karanth has executed the Will in favour of the plaintiff. Therefore, the plaintiff has been using the EY passage as a common passage. Further the First Appellate Court has assigned reason that the house was constructed in the year 1959 by the elder brother K.L. Karanth and in the year 1977 the said K.L. Karanth had executed the Will in favour of the plaintiff and much before that the plaintiff has been residing in the said house and using the said passage. Therefore, held that the plaintiff has proved his easementary right of way through EY passage. Further the First Appellate Court has observed that the plaintiff has been using the said EY -8- NC: 2024:KHC-D:5635 RSA No. 120 of 2006 passage through G-1 gate from his predecessor are entitled for more than 20 years. As the plaintiff was residing along with elder brother K.L. Karanth in the property since the house was constructed in the year 1959, therefore, to prove prescription it is not only from the date of acquisition of title by the plaintiff, but before that when the plaintiff was residing along with his elder brother K.L. Karanth and from this time, the said EY passage is being used. Therefore, it is held that the plaintiff proved his easementary right of way by prescription as per Section 15 of the Indian Easements Act, 1882 (for short, 'the Act').
9. Against the divergent opinion between two Courts below, the defendants have preferred the appeal in this case. This Court while admitting the appeal on 15.10.2009 has framed the following substantial question of law:
"Whether the Lower Appellate Court was justified in holding that the easementary right by way of prescription was established on preadmitted facts, in the face of Section 15 of the Easements Act, 1882?"-9-
NC: 2024:KHC-D:5635 RSA No. 120 of 2006
10. Learned counsel for the appellants/defendants submitted that the plaintiff has not produced documents to prove his title even prima facie, when it is the case of the plaintiff that by virtue of Will he has acquired the said property and has become owner. Therefore, unless it is proved that the plaintiff is the owner of the property, then he cannot claim right of easement by prescription and it is held in RSA No.561/2005 dated 08.03.2006 between Shrinivasarao Laxminarayanarao Karant Vs. Shrikant Ramanrao Karant, that in very similar circumstances, the plaintiff has filed suit for claiming similar relief of right of easement by prescription against the another owner of the property and it was held that the plaintiff failed to prove his easementary right over the property. In the present case also the plaintiff has not proved that he is the owner by virtue of Will, even though Will is not under the question, but at least to show prima facie that the plaintiff is the owner, but there is no document produced. Further submitted that, the plaintiff has another way through the property CTS No.3787/48A/1A/1A/1B1 through G-2 gate and it is admitted by the plaintiff. Further submitted that, in which area the plaintiff is claiming that is a common passage
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 there are trees, plants and Tulasi Katta on this area, then it cannot be said that, the plaintiff has been using the said area as a common passage and the Court Commissioner report proves that there are plants, trees and Tulasi Katta on the which way the plaintiff is claiming common passage. Further submitted that as per Section 15 of the Act the plaintiff has to prove that there is an uninterruption in his way for more than 22 years. But the plaintiff is claiming that he has become owner of the property by virtue of Will dated 30.01.1977 and thus, the plaintiff has not proved the ingredient as per Section 15 of the Act. Therefore, the plaintiff has failed to prove the ingredients of Section 15 of the Act to prove his right of easement by way of prescription and this is rightly considered by the Trial Court, but on flimsy reasons, the First Appellate Court has reversed the findings of the Trial Court. Hence, prays to set aside the judgment and decree passed by the First Appellate Court and confirmed the judgment and decree passed by the Trial Court.
11. On the other hand, learned counsel for the respondent/plaintiff submitted that the plaintiff and his family members have been using common passage from the year
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 1959. Since the date of purchase of property by K. L. Karanth and plaintiff was residing along with elder brother K. L. Karanth and from that time, this common passage is used for reaching to house of the plaintiff. Therefore, submitted just because plaintiff has acquired property through Will in the year 1977, then, that right of prescription cannot be reckoned from the year 1977 itself. But even previous to that the plaintiff and defendants have been using the said passage EY through G-1 gate. Further submitted that on the way EY passage, Tulasi Katta was formed subsequent to filing of the suit. Further submitted that in the written statement, the plaintiff has clearly averred that he is using of passage is uninterrupted at any point of time because he is using for more than three decades continuously with knowledge of plaintiff and thus, acquired right of easement by way of prescription and this is rightly considered by the First Appellate Court. Hence, justified the judgment and decree passed by the First Appellate Court and thus, prays to dismiss the appeal.
12. Section 15 of the Indian Easements Act, 1882 stipulates as follows:
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 "15. Acquisition by prescription: Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement, shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested."
13. Therefore, the plaintiff has to prove his acquisition by prescription peaceably enjoyed without interruption for twenty years.
14. Even though the Will is not subject matter in the present suit, but when the plaintiff is claiming that he has acquired title by way of Will executed by K.L.Karant, then there
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 should be prima facie evidence that the plaintiff is owner of the property-ABCD. When the plaintiff and defendants are claiming that they have purchased property from Jagadguru Tontadarya Saunsthana Math, in the said document there is no recital that there is a passage towards Eastern side and that is a common passage to be used by the plaintiff and defendants. When the plaintiff has contended that he has become owner and having title through Will, in the said Will also, there is no recital that there is a common passage to be used by the plaintiff. Though the Will is not subject matter in the present case, but the plaintiff is claiming right of easement by way of prescription and he has to prove prima facie on what basis he has become owner. Unless prima facie evidence is produced in order to show his ownership, he cannot claim right of passage; this is observed by this Court in RSA No.561/2005 dated 08.03.2006 between the plaintiff and other defendants namely Shrikant Ramarao Karant. The plaintiff herein was plaintiff in the said case and filed suit for easement right by way of prescription and this Court has dismissed the suit of the plaintiff by observing that the plaintiff has not produced the document of Will to prove prima facie that he is the owner of the property.
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 The said suit is filed by the very same plaintiff, against the other adjacent owner claiming right of easement, but it was dismissed.
15. In the present case, the suit is filed by the very same plaintiff against the appellants-defendants for claiming easementary right by way of prescription based on the Will. Though the plaintiff is claiming that his elder brother K.L.Karant had purchased the suit property-ABCD and the plaintiff started residing along with said K.L.Karant from the year 1959, but there is no evidence. The plaintiff is claiming that he has become owner and having title in the year 1977 when the said K.L.Karant had executed the Will in favour of plaintiff and the plaintiff might have been residing in the said house from the year 1977 but before that there is no evidence that the plaintiff was residing along with his brother K.L.Karant. Therefore, the plaintiff after becoming owner of the house by virtue of Will that is only in the year 1977 and at the time of filing the suit there are hardly 19 years residing in the said house. Thus, the ingredient of the Section 15 is not proved. The First Appellate Court, without having any evidence and base has
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 erroneously observed that the plaintiff is residing in the ABCD house from the time of his elder brother, for this there is no evidence, but there is only assumption made by the First Appellate Court.
16. Though, the plaintiff has got examined two witnesses as PW-2 and PW-3, they are highly interested witnesses. PW-2 is the partner of plaintiff of Krishna theatre, therefore PW-2 is a business partner of plaintiff; quite naturally PW-2 has stated in favour of the plaintiff. Therefore, PW-2 cannot be believed. Likewise PW-3 is childhood friend of son of plaintiff and also he is very close to the plaintiff. Therefore, PW-3 also cannot be believed. When it is the case of plaintiff that plaintiff is using passage through EY passage of G-1 gate but the plaintiff ought to have examined the neighbouring persons who are residing in the said localities. But the plaintiff has not examined any of the neighbourers who are the best witnesses to say that whether there is a common passage or not. House of the plaintiff and defendants are very much in the middle of the city and not in remote area. Therefore, the neighbourers of the plaintiff and defendants who are best witnesses to depose regarding common passage stated to have
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 been used by the plaintiff, but there are no witnesses from neighbouring houses. Therefore, from the highly interested witness of PW-2 and PW-3 it cannot be believed that the plaintiff has been using EY passage for more than three decades. Except these PW-2 and PW-3 the other remaining witness is the plaintiff as PW-1.
17. Further, from the Court Commissioner report who was appointed during course of trial, it is proved that there are trees and plants on the area in which the plaintiff is claiming common passage. Though as per observation made by the First Appellate Court that Tulasi Katta was constructed after filing the suit, but it is not disputed by the plaintiff in the cross examination that there are several trees and plants with height of 9 to 10 ft. grown up on the area, in which the plaintiff is claiming common passage. This is admitted by the plaintiff. When this being the fact proved 9 to 10 feet heights trees could not be grown up within few days. When this being the evidence, it is difficult to believe that the plaintiff is using the said passage as a common passage to reach his house.
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006
18. It is revealed in the evidence that through the area EY through G-1 gate it is not possible to take even scooter but whereas, the plaintiff has passage to take his scooter and car through other passage which is situated in the Eastern side towards the plaintiffs house. Therefore, this fact is not appreciated by the First Appellate Court correctly and there is no evidence that PW-2 and PW-3 are neighbourers of plaintiff and defendants, then they could have examined other witnesses to say that the plaintiff is using the said area EY though G-1 gate as a passage. Therefore, when PW-2 and PW- 3 are highly interested witnesses as above discussed and they are not neighbourers residing in the area in which the plaintiff and defendants are residing, therefore, their evidence cannot be believed. But the First Appellate Court has committed error by relying on the evidence of PW-2 PW-3 while appreciating their evidence. The Court has to bear in the mind whether witnesses are interested or biased or partisan witness and their status as in what way they are related to the parties. This principle of law is last sight by the First Appellate Court while appreciating evidence of PW-2 and PW-3.
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006
19. When it is the case of the defendant that there is AD wall constructed, but the First Appellate Court has assumed itself that the AD wall has been newly constructed. When it is the case of the defendant that there was a wall constructed AD and after it got dilapidated, a new wall is constructed and there is no passage and there is no gap in the said wall passing through EY then it could not be possible for the plaintiff to use said area EY through G1 gate to reach their house. This is also lost sight by the First Appellate Court and just swayed away by the fact that AD wall is a newly constructed wall. In this regard the trial Court has considered it while appreciating evidence on record, but the First Appellate Court without re-appreciating the evidence in this regard from Ex.D-4, D-11 and D-12, very lightly observed that AD wall is newly constructed wall hence, this is perverse finding of the First Appellate Court. Therefore, the findings of the First Appellate Court that the plaintiff has proved that he and his family members from the time of his elder brother K.L.Karant has been using the said area through G1 gate peacefully without interruption with knowledge of plaintiff is not correct. When the plaintiff is claiming his right as per Section 15 of the Indian Easements Act, 1882, then it is
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 burden on the plaintiff to prove all the ingredients as per Section 15 of the Indian Easements Act, otherwise the relief claimed by the plaintiff cannot be granted.
20. Further, it is not the case of the plaintiff that he has right to claim easement by way of prescription as per document, because in the sale deed when the husband of defendant No.1 and K.L.Karant had purchased the property from Sri. Jagadguru Tontadarya Math, there is no recital that there is a common passage and also in the Will under which the plaintiff is claiming his right of ownership, there is no recital that there is a common passage to be used by the plaintiff. Therefore, when the plaintiff do not have evidence to claim his right of easement by way of prescription by way of document, then by examining the reliable witnesses the plaintiff had to prove. But the plaintiff has failed to prove his right of easement by way of prescription over this property as above discussed. Therefore, in this regard, the trial Court has rightly appreciated the evidence on record but the First Appellate Court has assumed itself the facts contrary to evidence on record and has erroneously reversed the findings of the trial Court. Therefore, the judgment and decree passed by the First Appellate Court is
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 liable to be set aside by confirming the judgment and decree passed by the trial Court.
21. Though, the plaintiff has taken pleading that the plaintiff has been using said ABCD area as common passage through G-1 gate continuously uninterrupted with knowledge of defendants, then the facts that in the very same area in which the plaintiff is claiming common passage, there are several trees and plants and when there are several trees and plants and how it can be said that there is no interruption and there is free passage is not forthcoming by the plaintiff. But when the trees and plants are existed from several years and there is no free area to make passage of the said area, then it cannot be said that there is no interruption for peaceful enjoyment of the area. Therefore, though the plaintiff has averred in the pleading in this regard, but failed to prove that the said ABCD passage is free from all obstruction and enjoying peacefully and with knowledge of the defendants. Therefore, it cannot be possible to say that there is a usage of common passage when in that area several trees and plants were in existence from decades together of the height of above 10 ft. The trees and plants cannot be grown within few weeks to such heights
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 therefore, the plaintiff has absolutely failed to prove his right of easement by way of prescription hence, the trial Court is correct in dismissing the suit.
22. Accordingly, I answer substantial question of law in the negative holding that the First Appellate Court is not justified in holding that the plaintiff is having right of easement by way of prescription has failed to prove ingredients of Section 15 of the Indian Easement Act.
23. The decisions relied on by the learned counsel for the plaintiffs are having different set of factual matrix and the facts are that claiming easementary right by way of necessity therefore, the said judgments are not applicable in the present case.
24. Therefore, for the aforesaid reasons, the judgment and decree passed by the First Appellate Court is hereby set aside by confirming the judgment and decree passed by the trial Court. In the result, the appeal is liable to be allowed. Hence, I proceed to passed to pass the following:
ORDER
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NC: 2024:KHC-D:5635 RSA No. 120 of 2006 i. The appeal is hereby allowed.
ii. The judgment and decree dated 28.09.2005 passed in R.A.No.168/1999 by the Additional Civil Judge (Senior Division) Gadag is hereby set aside.
iii. The judgment and decree dated 30.10.1999 passed in O.S.No.85/1996 by the III Additional Civil Judge (Junior Division) Gadag, is hereby confirmed.
iv. Send back the records to the Courts
concerned along with the copy of
judgment and decree passed in this
appeal.
v. No order as to costs.
vi. Draw decree accordingly.
Sd/-
JUDGE
KGK: Para 1 to 4
SSP: Para 5 to 12
SRA: Para 13 to end
CT:ANB
List No.: 1 Sl No.: 28