Karnataka High Court
G Rangappa vs K T Thimmappa on 4 March, 2016
Equivalent citations: 2016 (3) AKR 434, (2016) 4 KCCR 596
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04th DAY OF MARCH, 2016
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL NO. 687/2014
C/W
REGULAR SECOND APPEAL.NO.686/2014
R.S.A.NO. 687/2014:
BETWEEN:
G. RANGAPPA
S/O LATE MANUR RANGAPPA
AGED ABOUT 73 YEARS
AGRICULTURIST
R/O ARIKYATHANAHALLI,
NIDAGAL HOBLI,
PAVAGADA TALUK,
TUMKUR DISTRICT-561 202. ... APPELLANT
(BY SRI.A.V. GANGADHARAPPA, ADVOCATE FOR
M/S AVG ASSOCIATES)
AND:
1. K.T. THIMMAPPA
S/O MADIWALA THIPPANNA
AGED ABOUT 71 YEARS
2. SMT. HANUMAKKA
W/O K.T. THIMMAPPA
AGED ABOUT 59 YEARS
BOTH ARE R/O ARIKYATHANAHALLI,
NIDAGAL HOBLI,
PAVAGADA TALUK,
2
TUMKUR DISTRICT-561 202. ... RESPONDENTS
(BY SMT. VEENA C.G. ADVOCATE FOR SRI. PUTTAMALLA,
ADVOCATES FOR R-1 AND R-2;
SMT. B.V. VIDYULATHA, ADVOCATE FOR
SRI. SHIVARAJA H.B., ADVOCATE FOR R-1)
THIS APPEAL IS FILED UNDER SECTION 100 OF
C.P.C. PRAYING AGAINST THE JUDGMENT & DECREE
DATED 17.01.2014 PASSED IN R.A.NO.80/2002 ON THE
FILE OF THE PRL. SENIOR CIVIL JUDGE & JMFC,
MADHUGIRI (SITTING AT PAVAGADA), DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 15.3.2002 PASSED IN O.S.NO.178/1993 ON THE
FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC,
PAVAGADA.
R.S.A.NO. 686/2014:
BETWEEN:
G. RANGAPPA
S/O LATE MANUR RANGAPPA
AGED ABOUT 68 YEARS
AGRICULTURIST
R/O ARIKYATHANAHALLI,
NIDAGAL HOBLI,
PAVAGADA TALUK,
TUMKUR DISTRICT-561 202. ... APPELLANT
(BY SRI. A.V. GANGADHARAPPA, ADVOCATE FOR
M/S AVG ASSOCIATES)
AND:
1. K.T. THIMMAPPA
S/O MADIWALA THIPPANNA
AGED ABOUT 68 YEARS
2. SMT. HANUMAKKA
W/O K.T. THIMMAPPA
AGED ABOUT 50 YEARS
3
3. RANGAPPA
S/O SANNA HANUMAPPA
AGED ABOUT 45 YEARS
4. SMT. SAKAMMA
W/O RANGAPPA
AGED ABOUT 56 YEARS
5. SMT. JAYAMMA
W/O RANGAPPA
AGED ABOUT 48 YEARS
ALL ARE R/O ARIKYATHANAHALLI,
NIDAGAL HOBLI,
PAVAGADA TALUK,
TUMKUR DISTRICT-561 202. ... RESPONDENTS
(BY SMT. VEENA C.G. ADVOCATE FOR SRI. PUTTAMALLA,
ADVOCATES FOR R-1 AND R-2;
SMT. B.V. VIDYULATHA, ADVOCATE FOR
SRI. SHIVARAJA H.B., ADVOCATE FOR R-1;
NOTICE TO R-4 IS SERVED AND UNREPRESENTED
V/O DATED. 24.04.2015;
NOTICE TO R-3 IS DISPENSED WITH;
NOTICE TO R-5 SERVICE HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 100 OF
C.P.C. PRAYING AGAINST THE JUDGMENT & DECREE
DATED 17.01.2014 PASSED IN R.A.NO.79/2002 ON THE
FILE OF THE PRL. SENIOR CIVIL JUDGE & JMFC,
MADHUGIRI (SITTING AT PAVAGADA), DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 15.3.2002 PASSED IN O.S.NO.128/1993 ON THE
FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC,
PAVAGADA.
THESE APPEALS BEING HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
These two appeals have been preferred by Sri G Rangappa, who is fifth defendant in O.S.No.128/1993 and plaintiff in O.S.No.178/1993, questioning the correctness and legality of judgment and decree passed in R.A.No.79/2002 and R.A.No.80/2002 respectively whereunder the appeals filed by fifth defendant/plaintiff came to be dismissed by judgment and decree dated 17.01.2014 confirming the common judgment and decree passed by the Principal Civil Judge (Jr.Dn) and JMFC, Pavagada who had decreed the suit O.S.No.128/1993 filed by the plaintiffs, declaring that plaintiffs have right of way through land bearing Sy.No.114/2 by easement of necessity for the purposes of carrying on agricultural operations in their land bearing Sy.No.97/2 and consequently granting permanent injunction restraining the defendants in the said suit from causing obstruction to the plaintiffs over the right of way of plaintiffs and dismissing the suit 5 O.S.No.178/1993 filed by fifth defendant (in O.S.No.128/1993) whereunder plaintiffs (defendants-4 and 5 in O.S.No.128/1993) had claimed the relief of declaration to declare that plaintiffs are the owners of 'XY' cart track and to declare that defendants (plaintiffs in O.S.No.128/1993) have no right of cart way or any type of easementary right to pass through Sy.No.114/2 to reach their land Sy.No.97/2.
2. This Court by order dated 21.07.2014 had admitted the appeals to consider the substantial questions of law formulated thereunder and it reads as under:
RE: RSA NO.687/2014:
1) Whether the trial Court is justified in dismissing the suit of the plaintiff denying the decree for declaration without appreciating the evidence on record in correct perspective?
2) Whether the Courts below are justified in law in granting the relief in favour of respondents basing on the report of the commissioner which does not establish the existence of the cart track on land bearing Sy.No.114/2?6
3) Whether the lower Appellate Court is justified in dismissing the appeals without property understanding the cases pleaded by the parties and being confused with regard to the real question in controversy?
RE: RSA 686/2014:
a) Whether the Judgment of the trial court confirmed by the Appellate Court is sustainable when the defendant had set up title in himself against the claim of the plaintiff?
b) Was not the suit for an order of injunction as sought for not maintainable?"
3. Learned advocates at the time of commencement of the arguments submitted that substantial questions of law formulated in RSA 686/2014 requires to be recasted and as such after hearing the arguments of learned advocates on substantial question of law, this Court by order dated 24.08.2015 formulated following substantial question of law in substitution to what had been formulated on 21.07.2014. It reads as under:
"Whether the Courts below were justified in granting the relief of declaration and permanent injunction in favour of plaintiffs (in O.S.No.128/1993) 7 declaring that plaintiffs have right of way through Sy.No.114/2 by way of easement of necessity for carrying out agricultural operations in the Land bearing Sy.No.97/2 belonging to them on the basis of material evidence available on record, including Court Commissioner's report?
4. I have heard the arguments of Sri A.V.Gangadharappa, learned Advocate appearing for appellant/5th defendant and Smt.B.V.Vidyulatha, learned Advocate appearing for respondent/plaintiff. Perused the records.
5. Before delving upon the facts of the case, it would be necessary to state that during the pendency of present appeals, this Court had appointed a learned Advocate practising before this Court as Court Commissioner to visit the suit schedule property and submit a report indicating as to whether there is any alternate road leading from Arekyathanahally and passing through Sy.Nos.113 so as to reach the property belonging to respondents in Sy.No.97/2 and also to indicate in the said report the approximate width of the 8 road going southwards i.e., towards the property bearing Sy.No.97/2. Accordingly, Court Commissioner has submitted a report on 02.06.2015. Learned Advocate appearing for appellant has filed objections to the said report on 17.06.2015. The learned Advocate appearing for the parties have addressed arguments on this report extensively which will be dealt by this Court during the course of the judgment and while answering the substantial questions of law.
6. Parties are referred to as per their rank in O.S.No.128/1993. Facts in brief which has led to filing of these two appeals are as under:
BACKGROUND OF THE CASE:
Plaintiffs claiming to be the absolute owners in possession and enjoyment of the land bearing Sy.No.97/2 of Kotagudda and claiming to have purchased the same from its original owners Sri. Madivalappa and others under a registered sale deed dated 03.03.1989 contending interalia that 9 composite land bearing Sy.No.97/1 was belonging to Sriyuths Sannarangappa s/o Sanjeevappa, Hanumantharayappa and Subbarayappa, sons of Sri.Kondappa and said land including Sy.No.97/2, 113/A and 114/2 originally belonged to the family of defendants and the family of Sri.Sannarangappa, who are cousin brothers and since divided. It is contended that father of Sri.Rangappa and Sri.Sannarangappa are divided brothers. It is also contended that plaintiffs to enjoy the property bearing Sy.No.97/2 has to pass through the suit schedule cart track at point ABCD as reflected in the suit sketch for better enjoyment which is an easement of necessity and without use of said cart track plaintiffs cannot enjoy the property belonging to them namely Sy.No.97/2. They also contended that their predecessor in title were enjoying the said cart track and there is no other alternate cart track and the easement is in long use. They further contended apart from plaintiffs having right of easement of necessity in Sy.No.114/2, Sri.Sannarangappa s/o Sri.Sanjeevappa 10 and Smt. Lakshmidevamma who were owners of the land bearing Sy.No.97/1, have also got right of cart track and by virtue of a agreement dated 10.7.1987 executed by Sri.Rangappa S/o Sri.Sannahanumappa i.e., first defendant had recognized the right of way to both the parties and all these lands i.e., Sy.No.113/A, 114/2 and 97/1 and 97/2 are contiguous and adjacent lands. They contended that defendants have no manner of right, title and interest over the plaintiff's enjoyment of suit cart track and they are attempting to deny the right of way of plaintiffs to use said cart track at the instance of persons who are inimical towards plaintiffs. Hence plaintiffs sought for declaration of their right to use the cart track in 5th defendant's land and for perpetual injunction against the defendants.
7. Defendants - 1 and 3 filed their written statement admitting the plaint averments and indicating their no objection for suit being decreed. 11
8. 5th defendant filed the written statement admitting that plaintiffs are the owners of Sy.No.97/2.
However, it was denied that Sy.No.113 and 114/2 belonged to 2nd and 3rd defendant. It was contended that 2nd and 3rd defendant have sold Sy.No.114/2 to 4th defendant and 4th defendant had purchased Sy.No.114/2 as Manager of undivided Hindu family and 5th defendant is none other than only son of 4th defendant. Hence, it was contended that Sy.No.114/2 is the joint family property of 4th and 5th defendant. It was also contended that they have purchased not only Sy.No.114/2 but also "XY" Cart Track in Sy.No.113 as reflected in the sketch annexed to the written statement which is exclusively meant for use and enjoyment of Sy.No.114/2 by taking their cart, cattle, etc., by virtue of sale deed dated 14.03.1988. 5th defendant specifically denied that plaintiff has to pass through the cart track ABCD (reflected in the plaint sketch) for entering Sy.No.97/2. It was contended by 5th defendant that cart track 'ABCD' reflected in the foot of written 12 statement runs through Sy.Nos.113, 115, 61, and 97/1 through Halla Kharab to reach Sy.No.97/2 and this is the only way for the plaintiff's to reach their land. 5th defendant also denied of plaintiff having any type of right of easement of necessity or any type of easement over Sy.No.114/2. The agreement dated 10.07.1987 propounded by plaintiff came to be denied. It was specifically denied neither the plaintiffs nor their predecessor having used "XY" (as described in the plaint sketch) having been used as cart track by the plaintiff. 5th defendant denied that plaintiffs have no right of way or any type of easementary rights over Sy.No.114/2. They further contended that plaintiffs are laying false claim at the instance of owners of Sy.No.97/1 since use of land through Sy.No.114/2 being nearer and a short cut to the land of the plaintiffs i.e., Sy.No.97/2. All other averments in the plaint came to be denied. 13
9. Defendants 2 and 4 filed a memo on 13.07.1993 adopting the written statement filed by 5th defendant.
10. Defendant No.4 and 5 in O.S.No.128/1993 also filed a suit O.S.No.178/1993 against the plaintiffs in O.S.128/1993, for the relief of declaration that they are the owners of "XY" cart track and for declaring that defendants in the said suit i.e., plaintiffs in O.S.No.128/1993 have no right of cart track or any type of easementary right from "X" point through Sy.No.114/2 to Sy.No.97/2 as reflected in the plaint sketch and for consequential relief of permanent injunction. Plea put forward by the plaintiffs in said suit is the replica of defence raised by 5th defendant in O.S.128/1993. On service of suit summons defendants 1 and 2 i.e., plaintiffs in O.S.128/1993 appeared and filed their written statement denying the averments made therein and reiterating their contentions as raised in the plaint in O.S.No.128/1993.
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11. On the basis of these pleadings of the parties, trial Court framed issues separately in both the suits and they read as under:
ISSUES IN O.S.No.128/1993
1) Whether plaintiffs prove that their vendor purchased Sy.No.97/2 of Kotagudda village from its rightful owners Sanna Rangappa S/o Sanjeevappa and his brothers for valuable consideration?
2) Whether plaintiffs further proves that Sy.No.97/1, 97/2, 114/2 and 113/1A of Kotagudda were originally belongs to the family of defendants and family of Sanna Rangappa, who are now divided?
3) Whether plaintiffs further proves that they and their predecessors in title were being enjoying the suit cart track of point ABCD to reach their land bearing Sy.No.97/2 of Kotagudda, and there is no other alternative cart track to reach the land except suit cart track?
4) Whether plaintiffs further prove that plaintiffs got right of cart track by virtue of an agreement dated 10.07.1987 executed by first defendant?
5) Whether plaintiffs further prove that subsequent to 10.07.1987 1st 15 defendant sold the land bearing Sy.No.114 to 4th defendant?
6) Whether defendant No.4 and 5 prove that there is other cart track for plaintiffs to reach their land, through Sy.No.113, 115, 61 and 97/1 through halla kharab?
7) Whether defendant No.4 and 5 further prove that the suit schedule sketch is wrong and misleading?
8) Whether defendant No.4 and 5 further prove that there is no cause of action to the suit and suit is not maintainable?
9) What order or decree?
ISSUES IN O.S.NO.178/1993:
1) Whether plaintiffs prove that he is owner of Sy.No.114/2 of Arekyathanahally by virtue of registered sale deed dated 14.03.1988?
2) Whether plaintiffs further prove that defendants have got right of ABCD cart track passes through Sy.No.113, 115, 61 and 97/1 through Halla Kharab to reach Sy.No.97/2?
3) Whether plaintiffs further prove that defendants and their vendors are using ABCD cart track since time immemorial?
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4) Whether plaintiffs further prove that they are enjoying Sy.No.114/2 by another cart track as shown in plaint rough sketch, exclusively?
5) Whether plaintiffs prove that the defendants have no manner of right of cart track to take their cattle or any right of way or any type of easementary right over Sy.No.114/2 from XY cart track to Sy.No.97/2?
6) Whether defendants prove that the land bearing Sy.No.114/2, 113, 59 and 58 of Kotagudda was originally belongs to the family of Thippaiah, Sanna Rangappa, Sanjeevappa and Kondappa?
7) Whether defendants prove that neither they nor their vendors use the halla as the cart track to reach Sy.No.97/2 at any point of time?
8) Whether defendants further prove that no cart track is in existence as ABCD as shown in the plaint rough sketch?
9) Whether defendants further prove that they purchased land bearing Sy.No.97/2 from his vendor by virtue of an agreement dated 09.09.1986?
10) Whether defendants further prove that suit is not maintainable since plaintiff is not entitle for negative relief?
11) What order or decree?"
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12. 1st plaintiff got himself examined as PW-1 and also examined Sri.Sannarangappa, i.e.,1st defendant's father as PW-2 and one independent witness by name of Sri.Hanumantharayappa as PW-3. Plaintiffs in all produced 16 documents and got it marked as Exhibits P-1 to P-16. 5th defendant got himself examined as DW-1. 2nd defendant got herself examined as DW-2. On behalf of 5th defendant three documents were produced and they were got marked as Exhibits D-1 to D-3.
13. Initially trial Court had appointed a Court commissioner to inspect the suit property and to submit a report. Initially Court Commissioner had been appointed exparte and he had submitted exparte report and thereafter he had re-visited the suit schedule property for the second time and after obtaining memo of instructions from plaintiffs and defendants 5 and 2, submitted sketch as per Exhibit C-9 and has also answered the memo of instructions furnished by the 18 plaintiffs on the one hand and defendants 5 and 2 on the other hand as per Exhibit C-10 and C-11. FINDINGS OF TRIAL COURT:
14. Trial Court on evaluation of entire evidence both oral and documentary held that plaintiff is undisputedly owner of Sy.No.97/2 and defendants are the owners of Sy.No.114/2 and the cart track or road running through Sy.No.113 and 114/2 is the road which is in existence from long time and was being used by plaintiffs as well as their vendors to reach the land in Sy.No.97/2 and it was also held that road which according to the defendant runs through Sy.No.113, 114/1, 115 and 61 cannot be used to reach Sy.No.97/2 since there is a halla (unused stream) which is 1 ½ feet in width and same cannot be considered to be a road at all for being used by plaintiffs. On these amongst other grounds trial Court decreed the suit O.S.128/1993 and dismissed the suit O.S.178/1993 by Judgment and decree dated 15.03.2002.19
15. Being aggrieved by said Judgment and decree two appeals came to be preferred by 5th defendant namely one against the Judgment and decree passed in O.S.128/1993 in R.A.No.79/2002 was preferred and against the Judgment and decree passed in O.S.178/1993 in R.A.No.80/2002 came to be preferred.
FINDINGS OF FIRST APPELLATE COURT:
16. The first appellate Court after considering the arguments advanced by the respective learned advocates appearing for the parties formulated the points for its determination in both the appeals and held that Judgment and decrees passed by the Court below is based on proper appreciation of evidence. The first appellate Court also held that the only issue which was to be decided relates to whether plaintiff has right of easement by way of necessity over the cart track alleged to be situated in Sy.No.113/A and 114/2 so as to reach his land bearing Sy.No.97/2 and after re- 20
appreciating the evidence first appellate Court found that fifth defendant had admitted that he has purchased the land bearing Sy.No.114/2 from defendants-2 and 3 and had also admitted that plaintiff had purchased Sy.No.97/2 from Sri Madivalappa and he had also admitted that he had obstructed the plaintiff from passing through Sy.No.113 and 114 at point 'ABCD' by complaining the same to jurisdictional Tahsildar and as such there was clear obstruction. The first appellate Court noticed that D.W.2 - Smt.Sakamma while supporting the claim of fifth defendant had unequivocally admitted that she and third defendant (one of the vendors of fifth defendant) are the wives of first defendant. She also admitted that her father-in-law Sri Sannahanumappa and Sri Sanjeevappa are brothers and they were sons of Sri Thippaiah. Said Sri Thippaiah was the son of Sri Nallarangappa and the evidence of Smt.Sakamma - D.W.2 indicated that Sri Nallarangappa was the propositus who had son by name Sri Thippaiah and he 21 had two sons by name Sri Sanjeevappa and Sri Sannahanumappa and said Sri Sannahanumappa had two sons by name Sri Kondappa and Sri Rangappa and Sriyuths Hanumantharayappa, Krishnappa, Subrayappa and Pandurangappa were sons of Sri Kondappa. Further, Sri Sanjeevappa has two sons by name Sriyuths Sannarangappa and Sanjeevappa and vendor of the plaintiff had purchased the property bearing Sy.No.97/2 from said Sri Sannarangappa who is also the owner of the land bearing Sy.No.97/1 which is situated towards east of the land of the plaintiff . Thus, it clearly indicated that these lands bearing Sy.Nos.97/1, 97/2, 113 and 114 at an undisputed point of time belonged to one single family and they are contiguous lands. First appellate Court having noticed admission of D.W.1 about existence of cart-track in Sy.No.113/1A and 114/2 has confirmed the judgment and decree passed by trial Court and consequently, dismissed both the appeals by separate judgment rendered in both the appeals.
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17. It is against the dismissal of these two (2) appeals i.e., R.A.No.79/2002 and R.A.No.80/2002 dated 17.01.2014, 5th defendant in O.S.128/1993 has preferred these two second appeals.
CONTENTIONS OF APPELLANT (5TH DEFENDANT):
18. It is the contention of Sri.A.V.Gangadharappa, learned counsel appearing for defendant No.5 that land bearing Sy.No.114/2 was purchased by defendant No.4 under a registered sale deed dated 14.03.1988 marked as Ex.D-3 from defendant Nos. 2 and 3 i.e. Smt.Sakamma and Smt.Jayamma and ingress and egress to the said land is from Sy.No.113 and same has been reflected in the sale deed Ex.D-3 itself. He would further contend that plaintiffs who are claiming title to the property bearing Sy.No.97/2 is under sale deed dated 03.03.1989 Ex.P-1 and it does not indicate anything about passage or track in Sy.No.113/1 or 114. He would draw the attention of the Court to the pleading in O.S.No.128/1993 to 23 contend that plaintiffs have claimed their right of easement over the alleged cart-track in Sy.No.114 (belonging to defendants 4 and 5) by virtue of an agreement dated 10.07.1987 Ex.D-2 executed by Sri.Rangappa - first defendant who was not the owner of the said property and as such, the recitals found therein would not come to the rescue of the plaintiffs.
19. He would submit that undisputedly defendants 2 and 3 are the owners of the Sy.No.114/2 and it is they who have executed the sale deed Ex.D-3 in favour of defendant No.4 and said document would indicate that it would create a right in an immovable property and as such it is compulsorily registerable under Section 17 of the Indian Registration Act, 1908, and proper stamp duty has not been paid under Karnataka Stamp Act, 1957, and as such it is an inadmissible document. In support of his submission he has relied upon the Judgment of this Court in the case of K.Anjaneya Shetty Vs K.H.Rangaiah Shetty reported 24 in ILR 2002 Karnataka 3613. He would further contend that plaintiffs have failed to prove the existence of cart- track running in Sy.No.114 and the title deed of the plaintiffs' vendor (Madivalappa) has not seen the light of day and as such existence of cart-track in Sy.No.114 from time immemorial as pleaded by plaintiffs is not established. He would submit that Commissioner's report which has been relied upon by trial Court was a report submitted by the Court Commissioner who had been appointed exparte and subsequent report submitted by Court Commissioner after issuing a notice to parties, is not based on factual topography existing at the spot namely suit schedule property and even otherwise, said report would indicate that there is an existing road from Arekyathanahally to Komarlahally through the land bearing Sy.No.113/1A and road takes turn in another Sy.No.115 to reach Komralahally and submits that it is this road which has been depicted by defendants 4 and 5 in suit sketch filed by them along with O.S.No.178/1993 and referred to as A.B.C.D. in 25 their suit sketch and it is this road / cart-track as reflected in suit sketch (O.S.No.178/1993) as A.B.C.D. which is only road / cart-track available to the plaintiffs to as ingress and egress to Sy.No.97/2 belonging to them. He would also submit that there is no existence of cart-track or road passing through Sy.No.114/2 and at no point of time there was such road / cart-track in existence.
20. He would contend that Court Commissioner appointed by this Court by order dated 27.04.2015 is said to have been complied by the Court Commissioner so appointed and report has been filed on 02.06.2015 which is contrary to facts and not in consonance with the existing factual aspects and as such, the said Court Commissioner report is rejected. Even otherwise he would submit that the Court Commissioner has indicated in his report at page 2 paragraph 2 that a small pathway running from South to North between the lands bearing Sy.Nos.115 and 114/1 is in existence 26 and contends that it is the road which has been referred to by defendants 4 and 5 in their suit sketch (O.S.No.178/1993) as the only road leading to plaintiff's property i.e. Sy.No.97/2 and indicated from 'X' point as B.C.D. and submits that even Commissioner's report if accepted by this Court for any reason, same would support the case of defendant and hence, it has to be necessarily held that a road as indicated by the defendants and depicted as A.B.C.D. in their plaint's sketch (O.S.No.178/1993) has to be held as road leading to the plaintiff's property i.e., Sy.No.97/2 and as such defendants were entitle for a decree of declaration in their suit i.e. O.S.No.178/1993 which was to the effect that defendants i.e. Sy.No.114/2 which was prayed for and hence, Sri.A.V.Gangadharappa, learned counsel appearing for defendant prays for answering the Substantial Question of Law No.1 formulated in RSA No.687/2014 in favour of defendant i.e., plaintiff in O.S.No.178/1993 and seeks for decreeing the suit accordingly.
27
21. Further elaborating his submission he would contend that the document as produced by way of additional evidence and marked as Ex.D-4 would indicate that plaintiff's vendor did not have any right of way either in Sy.No.113 or 114/2. He would contend that Ex.D-5 which is partition deed dated 26.03.1979 relates to lands bearing Sy.No.60, 61 and 97 and do not reflect Sy,.No.113/1 or 114 and as such, Rangappa - defendant No.1 to execute the agreement dated 10.07.1987 Ex.P-2. He would also fairly submit that though in Ex.D-4 it is recited as "Bundidaari" it does not indicate as to its exact location. He would also submit that Madivalappa owner of Sy.No.97/2 and as such, Rangappa could not have executed the document in favour of plaintiffs on 10.07.1987 in respect of Sy.No.97/2 over which they do not possess any semblance of right as on the said date since the owner of Sy.No.97/2 being Madivalappa had executed sale deed in favour of plaintiffs only on 03.03.1989 Ex.P-1. 28 He would also draw the attention of the Court to the evidence of P.W.1 and P.W.3 to buttress his arguments that they have admitted that the first defendant did not have right over in Sy.No.114/2 and it is defendants 2 and 3 who had right and had acquired such right through Will executed in their favour by their father-in- law Sri.Sannahanumappa.
22. He would draw the attentions of the Court to the finding recorded by the First Appellate Court in paragraph 16 which is to the effect that D.W.1 as admitted the location of cart-track in Sy.No.113/1A and 114/2 which is a finding recorded contrary to material evidence available on record and submits that D.W.1 has never admitted to the said effect. He would also submit that plaintiff's claim over the alleged cart-track or road in Sy.No.114/2 is based on easement of existing and plaintiffs have utterly failed to prove the necessary ingredients for enabling them to seek fro such a declaration as prescribed under Section 13 of the 29 Easement's Act and contends that none of such ingredients prescribed under clauses (a) to (e) of Section 13 of the Act has been proved by plaintiffs and as such, trial Court could not have decreed the suit of the plaintiffs and dismissed the counter suit (O.S.No.178/1993) of defendants and prays for decreeing the suit of defendants in O.S.No.178/1993 and dismissed suit O.S.No.128/1993.
23. He would also submit that plaint averments in O.S.No.128/1993 does not even suggest of such plea having been raised and in the absence of such plea parties cannot be called upon to prove the same and as such on that ground also it has to be held that plaintiffs are not entitle for relief and submits that there was no such issue formulated by trial Court and so as to enable the parties to substantiate their claim was disprove the claim put forth by plaintiffs.
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CONTENTIONS OF RESPONDENTS 1 & 2 (PLAINTIFFS):
24. Per contra, Smt.Vidyulatha, learned counsel appearing for respondents submits that there is no substantial questions of law involved in these appeals requiring to be adjudicated or answered. She would also submit that all the properties belonging to family of Nallarangappa and the evidence tendered by plaintiffs in support of plea put forward by them in their plaint (O.S.No.128/1993) has not been controverted or countered by defendants 4 and 5. But on the other hand, evidence of P.W.1, P.W.2 and P.W.3 when read cumulatively it would indicate that suit schedule lands as well as lands adjacent and abutting to these lands were belonging to one family and original porpositus was Sri.Nallarangappa and as such parties were using each others land as ingress and egress to their respective lands since there was no dispute between them with regard to such usage.
31
25. She would further elaborate her submission by contending that alleged road leading from Arekyathanahally to Kamralahally as indicated in the plaint sketch produced by plaintiffs in O.S.No.178/1993 would clearly indicate that the said road or both way gets narrowed down which runs in between Sy.Nos.114/1 and 115 and at point "G" in sketch produced by Court Commissioner and marked as Ex.C-
9. She would also draw the attention of the Court from the said sketch to contend that at point 'G' it has completely narrowed down and there is no further ingress available to proceed and also draws the attention of the Court Commissioner's report filed not only before the trial Court but also filed by the Court Commissioner appointed by this Court to contend that there is no such cart-track or road in existence so as to have the access to the property of plaintiffs in Sy.No.97/2 and on the other hand, evidence tendered by plaintiff which is based on the plea put forward in the plaint to the fact that plaintiffs and their 32 predecessor in title were enjoying the suit cart-tract (passing though Sy.No.114/2) and there being no other alternate cart-track available to them to reach land except the suit cart-track as shown in the plaint sketch (O.S.No.128/1993) and same being on an easement in long use has also been admitted by D.W.2 namely she has admitted the relationship of parties and original propositor being Sri.Nallarangappa and not only the land belonging to plaintiffs and defendants i.e., Sy.No.97/2 and 114/2 originally belong to family of Sri.Nallarangappa and thereafter his successors in interest but also she admits that road or cart-track in Sy.No.113 does not exclusively belong to defendants i.e., plaintiffs in O.S.No.178/1993 and this would indicate that others are also having a right over said cart-track including the plaintiffs and it is this cart-track passing through Sy.No.113 reaching 'X' point and thereafter, it passes through Sy.No.114/2 namely the land belonging to defendants and it is this cart-track which is being used by plaintiffs to have access to their land located in 33 Sy.No.97/2. She would submit that plaintiffs are claiming right by way of:
i) easement of necessity;
ii) on the ground of no other way or road is
available to them to enjoy their property i.e. Sy.No.97/2; and
iii) easement by way of prescription.
26. She would also draw the attention of Court to evidence of D.W.2 to contend that the existence of suit cart-track road and as such she prays for dismissing both the appeals by answering the Substantial Questions of Law in favour of plaintiffs. RE: COMMISSIONER'S REPORT:
27. Before proceeding to delve upon the substantial question of law, it would be necessary to note that on 27.04.2015 an order came to be passed by 34 this Court appointing a learned member of the Bengaluru Bar as Court Commissioner by directing him to visit the spot and submit a report to find out as to "whether there is an alternate road leading from Arekyathanahalli and passing through Sy.No.113 so as to reach the property belonging to the respondents in Sy.No.97/2 or not?". It was made clear to the Court Commissioner by this Court that said exercise is to be undertaken in accordance with the sketch found at page No.126 of the paper book. The said sketch had been prepared by the Court Commissioner who had been appointed before the trial Court had been marked as Ex.C-9. The topography indicated in the said sketch is reproduced hereinbelow which is beneficial for proper adjudication of the substantial questions of law.
3536
28. Since the report submitted by the Court Commissioner has been seriously disputed by the learned Advocate appearing for appellant i.e., 5th defendant, this Court would consider the same during the course of adjudication of substantial questions of law and as such, at this stage, no opinion or view is expressed on the Court Commissioner's report.
29. Since substantial question of law formulated in RSA No.686/2014 and RSA No.687/2014 are inter- linked and having bearing on each other, they are accordingly discussed, analysed, adjudicated and answered hereinbelow:
RE: FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW IN BOTH APPEALS:
30. Perusal of trial Court records would indicate that two (2) suits O.S.No.128/1993 and 178/1993 was being heard independently by same Court and subsequently by order dated 26.06.2001 they came to be clubbed and as such common evidence came to be 37 recorded and common findings came to be recorded by trial Court by answering the issues in common.
31. The first appellate Court entertained both the appeals independently and by a separate judgment and decree has dismissed both the appeals.
32. The material evidence available on record would indicate that plaintiff is the owner of Sy.No.97/2 measuring 3 acres 20 guntas having purchased the same from Sri Madivalappa, his wife and children under a sale deed dated 03.03.1989 - Ex.P-1. Likewise, defendant No.5 is the absolute owner of Sy.No.114/2 having purchased the same under registered sale deed dated 14.03.1988 - Ex.D-3 from Smt.Sakamma (second defendant in O.S.No.128/1993). This fact is not in dispute.
33. The core issue or the point of dispute between the plaintiffs and fifth defendant relates to access to the plaintiff's land i.e., Sy.No.97/2. On the 38 one hand, plaintiff has contended that ingress and egress to his land is through Sy.No.113/1A and 114/2 and there is no other access to his land and it is an easement of necessity. Whereas, defendants-4 and 5 have contended that in order to have access to Sy.No.97/2, plaintiff has to pass through Sy.Nos.115, 60, 61, 97/1 and then enter his land situated in Sy.No.97/2. Since, plaintiff had contended that the road or cart track or path way to his land Sy.No.97/2, as indicated or suggested by the fifth defendant is not in existence and fifth defendant asserting that there is existence of such road or path way or cart track, trial Court had appointed a Court Commissioner and he had submitted a report along with sketch. The said Court Commissioner's report which is in the nature of answering the memo of instructions filed by both the parties came to be marked as Exs.C-10 and C-11. In reply to the memo of instruction of the defendants, it has been stated by the Court Commissioner as reflected in Ex.C-11 to the following effect:
39
"2. As per the spot inspection, there is a road leading to Komaralahally from Arekyathanahally in Sy.No.113 in between Sy.No.113 and 115 there is a deviation near the Sy.No.114/1, the road as mentioned in the sketch C.D.E.F. The width of the way is 9 feet again the width of the way is decreased at the point of E.F. The width in E.F. up to the point of G is 2 feet. From the point of G. A.XY channel (halla) is commenced from Sy.No.61 and it is passed through the Sy.No.97/1, 97/2 and it continue to other lands. The width of the channel (halla) is in ground level the measurement from 2 feet. There is a Bund constructed by the stones in the point of E.F. and it ended in the point of G. As per the shown in the sketch.
3. There is no road either in Sy.No.115 or in Sy.No.61.
Pavagada sd/-
Date:11/11/93 Court Commissioner
(Emphasis supplied)
Likewise, in reply to memo of instructions filed by the plaintiff, it has been pointed out by the Court Commissioner to the following effect:
"2. There is a road leading from Arekyathanahally to Komaralahally through land bearing Sy.No.113/1a and also the road take turn there and turn in another Sy.No. 115, to reach Komaralahally.40
3. There is a 8 feet width AB Cart Track as shown in the Commissioner sketch in Sy.No.113/1A and the way is closed by thorn (mullu) and the groundnut crops are standing in the Sy.Nos.114/1 and 114/2. In Sy.No.113/1A is groundnut crops are not standing.
4. It is true that there is way in Sy.No.113/1A and it takes deviation in east northern corner. In east northern corner, the way is closed from thorn.
Pavagada sd/-
Date:11/11/93 Court Commissioner
(Emphasis supplied)
34. It is in this background and in the
background of rival contentions raised, has to be examined to find out as to whether Courts below committed error either in non-appreciation of available evidence or improper appreciation of available evidence or erroneous appreciation of available evidence resulting in the plaintiff's suit O.S.No.128/1993 being decreed while fifth defendant's suit O.S.No.178/1993 being dismissed.
35. The sale deed dated 03.03.1989 - Ex.P-1 under which plaintiff has purchased Sy.No.97/2 does 41 not indicate about existence of any road, cart way or path way from any side. The sale deed dated 14.03.1988 - Ex.D-3 under which document fifth defendant has purchased property bearing Sy.No.114/2 would indicate that the purchasers have been given right of path way through Sy.No.113/1 and there is a clear recital to the north of the fifth defendant's property is the land belonging to Sri Sannarangappa. These are undisputed facts.
36. At an undisputed point of time, the property bearing Sy.Nos.113, 114 and 97, 60 and 61 belonged to the joint family of plaintiff's vendor. P.W.2 - Sri Sannarangappa has clearly stated that defendants-2 and 3 are the wives of defendant No.1 - Sri Rangappa and properties bearing Sy.Nos.113, 114, 97, 60 and 61 of Kothugudda village were the ancestral properties. He has also stated that from the time of his grand father, cattle, carts and people were passing through Sy.No.113 and 114 to reach Sy.No.97. He has further stated, since 42 the time of partition they were passing through Sy.Nos.113 and 114 to reach Sy.No.97 and plaintiff has continued to use the same way. He has also stated that there is no other alternate way. Nothing worthwhile has been elicited in the cross examination of this witness to discredit his evidence. On the other hand, the tenor of the cross examination would indicate that to reach Sy.No.97, plaintiff has to travel through 'halla'. In the evidence of P.W.2 dated 17.01.2002, it has been suggested by the fifth defendant to the following effect:
"I do not know xxx passing through Sy.No.115 and 113. It is false to say that plaintiff is using halla from Kumarlahally main road to reach his land bearing Sy.No.97."
P.W.3 who is an independent witness and who knows the topography existing at the properties in dispute, has also stated to the following effect:
"The land bearing Sy.No.97 devolved to the share of Kondappa and Sannarangappa. The cattles, carts, etc., should reach to Sy.No.97 through Sy.No.113, 114 from Komaralahalli - Arekyathanahalli main road."43
Nothing worthwhile has been elicited in the cross examination of this witness also.
37. At this juncture, it would be appropriate to note the report of the Court Commissioner appointed by this Court vide order dated 27.04.2015. Perusal of the said report would indicate that he has visited the spot and observed that there is no access to land bearing Sy.No.97/2 apart from the pathway passing through Sy.No.113 in East - West direction and passing through the land in Sy.No.114/2 on the North - South direction. It is further observed by the Court Commissioner that the land bearing Sy.No.97/2 is a land locked property and there is no path way or alternate road to reach the same. Though Mr.Gangadharappa has vehemently contended that the Court Commissioner's report should not be accepted, he has also relied upon the said Commissioner's report to contend that at page 2 paragraph 2, the said Commissioner has opined that 44 small path way run from south to North direction between the lands bearing Sy.No.115 and 114/1 and as such, he contends that it is this road or cart track or path way which is the access to the plaintiff's land Sy.No.97/2 and which is referred to by the defendants-4 and 5 in their written statement as well as in their suit O.S.NO.178/1993 and as such, he has submitted the Court Commissioner's report should be read in favour of defendants-4 and 5. As already observed herein above, the Court Commissioner appointed before the trial Court as well as by this Court have categorically opined that Sy.No.97/2 is land locked property and there is no such cart track or road in existence so as to have access to said Sy.No.97/2 through Sy.No.115, 60 and 61. As observed by the Court Commissioner, the alleged cart track situated on North Eastern side is a 'halla' or a old water channel and same cannot be used as a cart track. In fact D.W.2 (second defendant) in her cross- examination dated 2.2.2002 has admitted that said 45 stream is 4 to 5 feet in width and it is located in between land bearing Sy.No.114 and 97.
38. As rightly contended by Smt.Vidyulatha, learned Advocate appearing for plaintiff that the road or path way in question is an easement of necessity to the plaintiff as contemplated under Section 13 of the Indian Easements Act, 1882. The illustration to Section 13 would be of benefit to be taken note of and it reads as under:
"A sells B a field then used for agricultural purposes only. It is inaccessible except by passing over A's adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A's adjoining land to the field sold."
39. The material evidence namely, both oral and documentary on hand would clearly indicate that the access or ingress and egress to the plaintiff's land i.e., Sy.No.97/2 is through Sy.No.113/1A and 114/2 namely, through the land belonging to the defendants (O.S.No.128/1993) and as such, the trial Court was 46 fully justified in decreeing the suit of the plaintiff and dismissing the fifth defendant's suit (O.S.No.178/1993) by refusing to grant a negative decree, which have been rightly affirmed by the first appellate Court. There is no error committed by the Courts below calling for interference.
40. In the light of the discussions lmade herein above, substantial questions of law are answered in favour of plaintiff and against defendants-4 and 5.
Hence, I proceed to pass the following:
ORDER
(a) Second Appeals RSA Nos.686/2014 & 687/2014 are hereby dismissed
(b) Judgment and decree dated 17.01.2014 passed in R.A.No.79/2002 and R.A.NO.80/2002 by Prl.Senior Civil Judge & JMFC, Madhugiri (sitting at Pavagada) affirming the common judgment and decree 47 dated 15.03.2002 passed in O.S.Nos.128/1993 and 178/1993 by Prl.
Civil Judge (Jr. Dn.) and JMFC, Pavagada, is hereby confirmed.
(c) Parties to bear their respective costs.
(d) Registry to draw the decree accordingly.
Sd/-
JUDGE *sp/SBN