Karnataka High Court
Sri H R Somegowda S/O Sri.Rangegowda vs Sri H M Upendra S/O Late Maregowda on 2 September, 2022
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
RSA NO.449 OF 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO.449 OF 2007 (DEC)
BETWEEN:
SRI. H.R. SOMEGOWDA,
S/O SRI. RANGEGOWDA,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURIST,
R/O HALASE VILLAGE AND POST,
TALUKA MUDIGERE,
DISTRICT CHICKMAGALUR - 577 101.
...APPELLANT
(BY SRI VIGNESHWARA S. SHASTRI, SR. COUNSEL FOR
SRI RAGHU H.P., ADVOCATE)
AND:
SRI. H.M. UPENDRA,
S/O LATE MAREGOWDA,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURIST,
R/O HALASE VILLAGE AND POST,
TALUKA MUDIGERE,
DISTRICT CHICKMAGALUR - 577 101.
...RESPONDENT
[BY SRI DHANANJAY JOSHI, SR. COUNSEL FOR
SRI VACHAN, ADVOCATE (NOC)]
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 20.12.2006 PASSED IN
R.A.NO.271/2006 ON THE FILE OF THE PRESIDING OFFICER,
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RSA NO.449 OF 2007
FTC-II, CHIKMAGALUR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 12.11.2001 PASSED
IN O.S.NO.101/1998 ON THE FILE OF THE PRL.CIVIL JUDGE
(JR.DN.) AND JMFC, MUDIGERE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.06.2022, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 20.12.2006 passed in R.A.No.271/2006 by District Judge, Fast Track Court-II, Chikmagalur, and also judgment and decree dated 12.11.2001 passed in O.S.No.101/1998 by Principal Civil Judge (Jr.Dn) & JMFC, Mudigere, this second appeal is filed by plaintiff.
2. Appellant herein was original plaintiff, while respondent herein was defendant in suit. For sake of convenience parties to this appeal are hereinafter be referred to as per their ranking in original suit.
3. O.S.no.101/1998 was filed seeking for declaration that plaintiff got right of easement by way of 3 RSA NO.449 OF 2007 prescription of path situated in 'B' schedule property shown in Commissioner's report in O.S.No.126/1995 to reach 'A' schedule property and for mandatory injunction directing defendant to remove fence put up across path etc.
4. In plaint, it was stated that plaintiff was absolute owner of lands bearing Survey no.94 measuring 01 acre 26 guntas and Survey no.83/1 measuring 02 acres 04 guntas situated at Halase village, Mudigere taluk ('A' schedule properties). It was further stated to reach 'A' schedule properties only path was passing through land belonging to defendant bearing Survey no.93 measuring 01 acre 28 guntas ('B' schedule property). It was stated that width of path was 6ft., and that plaintiff and his predecessors are entitled and were using it from time immemorial uninterruptedly and openly used for transportation of men, manure, material and draught animals to knowledge of defendant. Thus, plaintiff had prescriptive right of easement over land of defendant for pathway.
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RSA NO.449 OF 2007
5. It was further stated that defendant had earlier filed suit in O.S.no.126/1995 against plaintiff and H.K.Nanjunda, obtained ex-parte temporary injunction. Thereafter, defendant fenced 'B' schedule property including pathway shown in Commissioner's sketch. After entering appearance, plaintiff herein got appointed Court Commissioner for spot inspection. Court Commissioner submitted his report along with sketch showing existence of pathway. Considering same, trial Court vacated temporary injunction. Aggrieved by order, M.A.No.25/1995 was filed and it was dismissed vide order dated 04.09.1996 by before Civil Judge (Sr.Dn.) Chikmagalur. Later, on 05.11.1997, O.S.no.126/1995 came to be dismissed for non- prosecution. It was stated that during pendency of suit, under ex-parte temporary injunction, defendant had put up fence across pathway and after dismissal of suit, failed to remove fence. Hence, plaintiff was unable to cultivate 'A' schedule properties. Since, defendant did not heed to 5 RSA NO.449 OF 2007 plaintiff's request for clearing pathway, present suit was filed.
6. Upon service of suit summons, defendant entered appearance and filed written statement denying plaint averments in toto. Filing of O.S.no.126/1995 and dismissal of suit for non-prosecution was also admitted. However, fencing of 'B' schedule property after obtaining temporary injunction was denied. Though Commissioner's report was obtained in said suit, no orders were passed accepting report. Therefore, said report could not be relied upon and plaintiff was not entitled for any relief. Description of 'B' schedule property was also disputed. It was specifically asserted that plaintiff was passing through property belonging to H.K.Nanjunda and Raju since many years and had come up with instant false suit only to harass defendant. Stating that defendant had fenced his land bearing Survey No.93, defendant contended that no cause of action accrued for filing suit.
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RSA NO.449 OF 2007
7. Based on pleadings, trial Court framed following issues and additional issues:
1. Whether the plaintiff proves that he is the absolute owner in possession of the 'A' schedule properties?
2. Whether the plaintiff proves that 'B' schedule pathway is the only way to reach the 'A' schedule properties?
3. Whether the plaintiff proves that, himself and his predecessors in title have been using the said pathway for more than 30 years as alleged?
4. Whether the plaintiff proves that, he has got an easementary right by prescription over the 'B' schedule pathway?
5. Whether the plaintiff proves the alleged interference by the defendant?
6. Whether the plaintiff proves that, the defendant is liable to remove the fence put up across the 'B' schedule pathway?
7. Whether the plaintiff is entitled for the reliefs of declaration and mandatory injunction as sought for?
8. What Order or decree?7
RSA NO.449 OF 2007
8. Thereafter, plaintiff got himself examined as PW1. Exhibits P1 to P12 were marked. Defendant examined himself as DW1. But no documents were marked.
9. On consideration, trial Court answered issues nos.1 to 6 in affirmative and issues no.7 and 8 by decreeing suit with cost declaring plaintiff as absolute owner of 'A' schedule properties and acquired right of easement by way of prescription over 6ft. wide pathway in 'B' schedule property and directing defendant to remove fence put up on pathway. Aggrieved thereby, defendant preferred R.A.no.271/2006 on several grounds.
10. It was contended that judgment and decree passed by trial Court was unsustainable and opposed to law, facts of case and evidence on record. It was contrary to admission that width of pathway was only ½ ft. and further admission that plaintiff had some other pathway to reach his property. Even Commissioner's report also 8 RSA NO.449 OF 2007 disclosed width of pathway was 1½ ft. Court was not justified in rejecting application filed by defendant for appointment of Court Commissioner. It was also contended that there was no proper appreciation of evidence.
11. Based on contentions urged, first appellate Court framed following point for consideration:-
"Whether the impugned judgment is
sustainable in law?"
12. On re-examination, first appellate Court allowed appeal, set aside judgment and decree passed by trial Court and dismissed suit. Against divergent findings, present appeal is filed.
13. Appeal was admitted on 15.01.2009 to consider following substantial question of law:
"Whether the lower appellate Court committed an illegality in not considering the documentary and oral evidence on record particularly Court Commissioner report and the admission of defendant?"
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RSA NO.449 OF 2007
14. Sri. Vighneshwar S.Shastri, learned Senior Counsel appearing for Sri. Raghu H.P., advocate for appellant submitted that plaintiff herein filed suit for declaration of easement by prescription of pathway in 'B' schedule property and for mandatory injunction to remove obstruction. Trial Court decreed suit by referring to order passed in earlier suit granting ex-parte temporary injunction, vacation of same, dismissal of appeal filed against vacating interim injunction and order dismissing suit for non-prosecution. It was submitted that as per Ex.P10, plaintiff submitted representation to Tahsildar on 26.03.1998 for removal of obstruction. As no action was taken, suit was filed on 22.07.1998. Ex.P11 - report of Court Commissioner submitted in O.S.no.126/1995 clearly established existence of pathway. It was submitted that Ex.P12 - sketch submitted along with Ex.P11.
15. In support of pleadings, plaintiff clearly deposed about accrual of easement by prescription. There was no 10 RSA NO.449 OF 2007 dispute about his title over 'A' schedule properties. He stated that since time of his ancestors, they were using pathway in 'B' schedule property belonging to defendant for ingress and egress to their lands. It was further submitted that Commissioner visited spot on 25.08.1995. In his report he stated that fence was put up by defendant about 3 months earlier, which clearly established that plaintiff was using pathway in 'B' schedule property until it was blocked by defendant. Even DW.1 in his deposition stated that there existed a pathway measuring 1½ ft. in width. He further deposed that there was no obstruction to pathway shown in sketch and he had agreed to instructions given by Tahsildar and police not to obstruct pathway shown in sketch. He even admitted that said pathway was being used not only by plaintiff but others also.
16. Learned Senior Counsel further drew attention of this Court to admission elicited in cross-examination of DW.1 that plaintiff was passing through defendant's land 11 RSA NO.449 OF 2007 and that he had not caused obstruction to plaintiff and also even during lifetime of his father to pass through his land. Appreciating said evidence, trial Court decreed suit. First appellate Court on hyper technical approach held that plaintiff failed to prove acquisition of right of easement by prescription. Said reasoning is contrary to evidence on record and therefore, perverse.
17. In support of his submission reliance was placed on decision of Hon'ble Supreme Court in case of Balasaria Constructions (Pvt.) Ltd. v/s Hanuman Seva Trust and Others1 for proposition that question of limitation was a mixed question of law and fact.
18. On other hand, Sri. Dhananjay Joshi, learned Senior Counsel appearing for Sri Vachan R., advocate for defendant would submit that Section 15 of Indian Easements Act, specifically mandates that to establish acquisition of easement right by prescription, plaintiff must 1 ( 20 06 ) 5 SC C 6 5 8 12 RSA NO.449 OF 2007 establish that said right was in existence for a period of at least twenty years continuously and without interruption upto a period within two years immediately preceding suit.
19. It was submitted that even as per plaintiff's case, defendant had caused obstruction to easement by putting a fence after obtaining ex-parte temporary injunction in earlier suit on 20.06.1995. Further, even as per Court Commissioner, fence put up by defendant was about 3 months earlier. Admittedly, suit was filed on 22.07.1998. Therefore, plaintiff miserably failed to establish one of the mandatory requirement prescribed in Section 15 of Indian Easements Act, that suit was filed within two years of its obstruction. Since in instant case, easement claimed was obstructed more than two years prior to suit, plaintiff failed to establish all requirements mandatory in Section 15 of Indian Easements Act. Therefore, impugned judgment and decree of first appellate Court did not call for interference.
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RSA NO.449 OF 2007
20. In support of his submission, he relied upon decision of learned Single Judge of High Court of Kerala, in case of Badariya Madrassa Committee v/s Antony Robert Breganza2 for proposition that even if plaintiff establishes easement for mere walking uninterruptedly for more than twenty years and also two years prior to suit, same would not justify plaintiff's claim for declaring easement in respect of pathway of 6ft. width.
21. He also relied upon decision of Hon'ble Supreme Court in case of Justiniano Antao and Others v/s Bernadette B. Pereira3 for proposition that in order to establish right by way of prescription, it was incumbent upon plaintiff to plead categorically since what date and to which date he was using easement. It was contended that as pleading in instant case fell short of requirement, first appellate Court had rightly exercised jurisdiction and after setting aside decree dismissed suit. In view of specific 2 20 0 6 S CC O nL i n e Ke r 1 4 3 3 ( 20 05 ) 1 SC C 4 7 1 14 RSA NO.449 OF 2007 pleading that obstruction caused by defendant was after obtaining ex-parte temporary injunction on 20.06.1995, without specific pleading and establishing continuous and uninterrupted user of easement within two years prior to filing of suit, requirement of Section 15 of Indian Easements Act, were not established. Therefore, no interference was called for.
22. From above submission, it is not in dispute that plaintiff is owner of 'A' schedule properties, while defendant is owner of 'B' schedule property. Plaintiff claims acquisition of right of easement of pathway through 'B' schedule property, whereas defendant denies existence of easement and also contends existence of alternative way. While passing impugned judgment and decree, trial Court referred plaintiff's pleading that defendant had earlier filed O.S.no.126/1995 against plaintiff and H.K.Nanjunda and after obtaining ex-parte temporary injunction, fenced 'B' schedule property. It referred to Court Commissioner's 15 RSA NO.449 OF 2007 report submitted in earlier suit, wherein Commissioner had clearly indicated about existence of 6ft. wide pathway upto land of defendant and thereafter, shrinking in width to 1½ ft. It also observed that Commissioner had opined that defendant had fenced 'B' schedule property about six months prior to date of his visit.
23. Referring to Ex.P11 and P12 - report and sketch, wherein Commissioner had shown existence of pathway by marking it in red colour and also stated that defendant had put up fence six months prior to inspection, concluded that plaintiff had established existence of easement. While decreeing suit, trial Court also considered contention of defendant regarding existence of alternate pathway. Upon recording a categorical finding that said pathway was not in existence, rejected contention. It referred to unequivocal admission of DW.1 about existence of pathway of 1½ ft. width situated in middle of his land. It held that lack of clear denial by defendant to a suggestion by plaintiff about 16 RSA NO.449 OF 2007 width of pathway to be 6ft., as establishing at 6ft. Based on said conclusion, it proceeded to decree suit.
24. First appellate Court on other hand, held that in view of unequivocal pleading of plaintiff about defendant interrupting use of pathway, merely on basis of suit filed by defendant earlier, plaintiff could not succeed in establishing easement. It held that in view of admitted obstruction, plaintiff failed to establish required period of user of twenty years of easement ending within two years prior to filing of suit. On said conclusion, it set aside judgment and decree passed by trial Court and dismissed suit.
25. Subject matter of suit is right of easement by prescription. Though plaintiff sought for declaration of existence of such right, he failed to plead and establish such right as required under Section 15 of Indian Easements Act. Said provision reads as follows:-
"Section 15 Acquisition by prescription.-Where the access and use of light or air to and for 17 RSA NO.449 OF 2007 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.
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 fulfilment 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 18 RSA NO.449 OF 2007 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.
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."
26. Explanation I - clearly mandates that each period of twenty years uninterrupted user of easement should be established to be in existence within two years prior to filing of suit.
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RSA NO.449 OF 2007
27. Admittedly, instant suit is filed on 22.07.1998. As per plaint, cause of action for filing suit arose on 20.06.1995, when (in pursuance of ex-parte order of temporary injunction obtained in O.S.no.126/1995), defendant put up fence obstructing plaintiff from using pathway. As per plaint, width of pathway was 6ft. Though it is elicited from defendant that there was no obstruction of using pathway of 1½ ft. width passing through schedule 'B' land to plaintiff and others, same would not entitle plaintiff for a decree. It is seen that plaintiff failed to give adequate description of pathway in 'B' schedule. Suit prayer merely refers to Court Commissioner's report at Ex.P.11 in earlier suit. It discloses that defendant had blocked 6ft. wide pathway and also refers to existence of 1½ ft. wide pathway. Without specifically stating which among two pathways plaintiff was trying to enforce, suit could not be proceeded with. Hence, not only on ground of lack of clarity in prayer, but also on ground of failure of plaintiff to plead 20 RSA NO.449 OF 2007 and establish existence of easement as required under Section 15 of Indian Easements Act, judgment and decree passed by first appellate Court would be fully justified.
28. Further, requirements of law mandated in Justiniano Antao (supra) would not be satisfied, as even date of accrual of cause of action mentioned in plaint would be beyond two years prior to suit.
29. Merely on ground that defendant admitted existence of 1½ ft. pathway, High Court of Kerala in Badariya Madrassa Committee (supra) under similar circumstances held such admission would not justify decree for pathway of 6ft. width.
30. But there is admission by defendant about existence of pathway of 1½ ft. in width and admitted position that there was no obstruction by defendant for such right, which would meet requirements of statute. 21
RSA NO.449 OF 2007 Taking same into account, substantial question of law is answered partly in negative.
31. In view of above finding, I pass following:
ORDER i. Appeal is allowed in part.
ii. Judgment and decree dated 20.12.2006 passed by District Judge, Fast Track Court- II, Chikmagalur, in R.A.No.271/2006 and judgment and decree dated 12.11.2001 passed by Principal Civil Judge (Jr.Dn) & JMFC, Mudigere in O.S.No.101/1998 are modified.
iii. O.S.no.101/1998 is decreed only to extent of 1½ feet wide pathway in favour of plaintiff for passing through schedule 'B' land.
Registry is directed to send back Trial Court Records.
Sd/-
JUDGE GRD