Karnataka High Court
Sri N Vijendra Rao S/O Late N Srinivas Rao vs Vasudeva Pal S/O Late Baba Pal on 25 April, 2016
Equivalent citations: 2016 (3) AKR 86, (2016) 4 KANT LJ 626, (2016) 3 KCCR 2086, (2016) 3 ICC 44
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.S.A. NO.2057/2006
BETWEEN:
SRI N VIJENDRA RAO
S/O LATE N SRINIVAS RAO
HINDU, AGED ABOUT 71 YEARS
R/AT RADHA SADAN
D.NO.2-2-87 CHILIMBI
MANGALORE-57500 6 D.K.
... APPELLANT
(By Sri: O SHIVARAMA BHAT, ADV.)
AND:
1. VASUDEVA PAL
S/O LATE BABA PAL
AGED ABOUT 72 YRS
2. GURUDATTA
S/O VASUDEVA PAL
HINDU, ADULT
3. GIRESHA
S/O VASUDEVA PAL
HINDU, ADULT
4. DINESH PAL
2
S/O VASUDEVA PAL
HINDU ADULT
RESPONDENTS NO.1 TO 4 ARE
R/AT D.NO.2-2-91/2
BEHIND COOL CRAFTS
CHILIMBI MANGALORE-575006 D.K.
... RESPONDENTS
(By Sri: MOHAN BHAT, ADV.)
RSA FILED U/S 100 CPC AGAINST THE JUDGMENT
AND DECREE DATED:21.4.2006 PASSED IN RA.NO 692/2004
(RA.NO.138/1999) ON THE FILE OF THE PRESIDING OFFICER
AND DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-I,
D.K., MANGALORE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED: 16.9.1999
PASSED IN OS.NO. 276/1994 ON THE FILE OF THE PRL.CIVIL
JUDGE (JR.DN.), MANGALORE, D.K.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 11.12.2015 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, A.V.CHANDRASHEKARA, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal filed under Section 100, C.P.C. is directed against the divergent judgment passed in a regular appeal in RA.138/99 which was pending on the file 3 of Senior Civil Judge at Mangaluru, Dakshina Kannada District.
2. The appellant herein is the sole plaintiff of an original suit in O.S.276/94. Respondents herein are the defendants in the said suit. Parties will be referred to as plaintiff and defendants 1 to 4 as per their ranking before the trial court. Defendants 2 to 4 are the sons of the 1st defendant.
3. A suit had been filed for the reliefs of declaration that the plaintiff has absolute title to the right of easement marked in letters 'RRR' by way of prescription and for the consequential relief of permanent prohibitory injunction against the defendants or their men claiming through them. The said suit came to decreed as prayed for against which an appeal was filed under Section 96, C.P.C. Later, the appeal was allowed and the matter was remitted to the trial court to frame few more issues and to examine the 4 commissioner. After remand, the suit was again decreed as against which an appeal came to be filed in terms of Section 96, C.PC.. The said appeal is allowed and thereby the judgment and decree of the trial court is set aside. Hence this divergent judgment and decree which is not helpful to the plaintiff is called in question before this court on various grounds as set out in the appeal memo.
4. The facts leading to the filing of this appeal are as follows;
a) Plaintiff is stated to be in lawful possession and enjoyment of 27 cents of land in Survey No.99/9 of Kolur village, Mangaluru City and the buildings put up thereon in No.2/2/87, 98, 99 and 90 along with easementary right of way and water connection appurtenant thereto. According to him, he has easementary right over the space measuring 12 feet width right from Kolur ferry road up to his building in the land of the defendant described as 'B' 5 schedule. The house and vacant land of the defendants are is to the south of 'A' schedule property.
b) It is stated that the 1st defendant is the lawful owner of 'B' schedule property inclusive of the space measuring 12 feet which is a road connecting the plaintiff's property with Kolur ferry road existing on the southern side. Since the defendants tried to interfere with the plaintiff's peaceful possession and enjoyment of the 12 feet road which is the only mode of access to his property, he had to file a suit.
c) According to the plaintiff, he had been using this 12 feet road marked as 'RRR' for more than 20 years and thus he is stated to have acquired easementary right by way of prescription. It is his case that he purchased 'A' schedule property by virtue of a sale deed executed by Vasudev Shetty and Revathi Shetty in document No.765/73 dated 31.10.1973 and since then he has been in possession and enjoyment along with the easementary 6 right of way, water, light and air appurtenant thereto. The property of the defendant as described in 'B' schedule is situated on the southern side of 'A' schedule property. Defendants 1 to 4 being members of the same family, are residing in the said house. On the eastern side is the right of way across 'B' schedule property connecting Kolur ferry road with the plaintiff's property and that is the only access to his property.
d) According to the plaintiff, the said road indicated in the letters 'RRR' which is 12 feet wide is bounded by mud compound wall on the western side and a compound wall of laterite stones on the eastern side and that the said road is a part and parcel of property bearing Survey No.99/12 belonging to the 1st defendant and this road is absolutely meant for the plaintiff to have access to his property. It is his case that apart from this piece of land, there is no other road or pathway to approach or to connect 'A' schedule property. This right of way, according 7 to the plaintiff, is being used ever since the year 1944 even by his vendor-Vasudev Shetty.
e) It is also his case that this road indicated by the letters 'RRR' was being used by Smt.Ayeshabi who was in possession of property bearing Survey No.99/9 even before 'B' schedule property was settled in favour of the 1st defendant. Prior to 1996, when the suit properties were being used by Ayeshabi, plaintiff is stated to have purchased 'A' schedule property along with the easementary right of way inclusive of the right of way indicated by the letters 'RRR.'
f) It is his case that in the year 1956, Smt.Ayeshabi exchanged the property vide document No.1969/1956 dated 3.9.1956 under which the schedule right of way is clearly indicated as the only access to 'A' schedule property. For better explanation, a rough sketch is appended to the plaint indicating the existence of 'A' 8 schedule property along with the right of way and 'B' schedule property.
g) The right of way indicated by the letters 'RRR' is stated to be on the eastern edge of Survey No.99/12 of the defendants and the plaintiff is stated to be making exclusive use of the same for more than 20 years prior to the filing of the suit without any interruption. Thus the plaintiff is stated to have acquired easementary right by way of prescription which cannot be disturbed by the defendants or any persons claiming under them. Since the defendants tried to obstruct his peaceful enjoyment of the right of way indicated in the letters 'RRR,' on 13.2.1994 the plaintiff had to file a police complaint against the defendants, and in spite of the same, they (defendants) did not stop their illegal activities and therefore he was constrained to file a suit.
h) The 1st defendant who is the father of defendants 2 to 4, has filed detailed written statement denying all the 9 averments in the plaint and has called upon the plaintiff to prove the same. The averment that the right of way indicated by the letters 'RRR' has had been used by the plaintiff ever since 1973 and his vendors since 1944, is specifically denied. According to them, the pathway was allowed during the pendency of the suit by taking advantage of the order granted by the trial court and the plaintiff is using his credentials about the right of way. It is stated that there was no mamul right existing at any point of time and that the documents could not have mentioned the right of way in their property.
i) It is their case that while exchanging the property in the year 1956, Smt.Ayeshabi had given outlet in Survey No.99/13 which is to the east of Survey No.99/12 to pass through the 12 feet wide road. It is stated that Ayeshabi could not have reserved any way in the defendants' property. According ot them, the said way is mentioned in 10 the subsequent document executed by Ayeshabi as the road existing in Survey No.99/13.
j) It is the specific case of the defendants that the plaintiff has an outlet on the northern side of his property and that there was an iron gate on the northern wall. `The plaintiff is stated to have removed it and blocked it so as to create a right in the defendants' property and to enable him to sell the northern portion of the property. As such, it is averred that the plaintiff has no easementary right over the disputed space measuring 12 feet and that there were steps to reach Survey NO.99/9 and the plaintiff, in order to create a right in their property, has removed the steps and has blocked the said space.
k) The plaintiff's suit is stated to be false, frivolous and imaginary one. The entire 'B' schedule property inclusive of this road of 12 feet width is stated to be in possession of the defendants and plaintiff has no manner of right, title and interest over any portion of 'B' schedule 11 property. The 1st defendant has averred that from the main road, i.e. Kolur ferry road, there is a pathway which branches off from the main road with a width of 5 feet and then towards the east, north and again east. It is stated that there was one more cross road that branches off near Kodibail village. The house of the plaintiff and the 1st defendant is stated to be in between these two roads and houses on the southern side have direct access from Kolur ferry Road and the houses on the northern side have access from the road as shown in the rough sketch annexed to the written statement.
l) It is stated that just a few days prior to the filing of the suit, plaintiff blocked a shed made of stones in order to grab valuable land of this defendant in 'B' schedule property. According to the defendants, there is no cause of action for the suit and the alleged cause of action is only a got-up one to file a false suit.
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m) Later, a re-joinder came to be filed by the plaintiff after the written statement was amended. According to the plaintiff, the 12 feet wide road mentioned in the exchange deed dated 3.9.1956 is the same road which is indicated by the letters 'RRR' and has been in existence ever since 1956. The averment that Ayeshabi had given outlet from Survey No.99/9 to 99/13 to pass through the 12 feet road is specifically denied. The road mentioned in the exchange deed is none other than the road indicated by the letters 'RRR' and the alleged outlet mentioned in the written statement is specifically denied. The averment that there were steps to reach from Survey No.99/13 to Survey No.99/9 and that the plaintiff has removed those steps and blocked the said exit is also specifically denied. According to the plaintiff, 'A' schedule property in Survey No.99/9 is situated at a higher level than the property in Survey No.99/12 belonging to the defendants and the approximate height is 10 feet.
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5. On the basis of these pleadings, the following issues came to be framed by the trial court:
1. Whether the description of the suit property is correct?
2. Whether the plaintiff proves that the existence of "RRR" Roadway and he absolutely making use of the same for better enjoyment of the Plaint 'A' Schedule property since from 1944?
3. Whether the plaintiff is entitled for declaration and that he has acquired absolute title to the right of easement over the "RRR" by prescription?
4. Whether the plaintiff is entitled for declaration and for a consequential permanent prohibitory injunction as prayed in the suit?
5. What order or reliefs that the parties are entitled for?
In all 7 witnesses inclusive of the plaintiff came to be examined on behalf of the plaintiff. On behalf of the defendants, as many as 3 witnesses were examined inclusive of the 3rd defendant-Girish, son of the 1st defendant. The suit came to be decreed on 23.8.1996 as 14 against which an appeal was filed in R.A.177/96 which was allowed by order dated 7.7.1997.
6. The matter was remanded to the trial court with a direction to frame four more issues as indicated in paragraph 23 of the judgment of the first appellate court and to allow the defendants to produce additional evidence as prayed in I.As.3 and 4.
7. Consequent upon the remand, the suit was again re- numbered as O.S.276/94 and 3 more witnesses were examined on behalf of the plaintiff and 2 more witnesses on behalf of the defendant. The trial court framed the following issues in O.S.276/94, as directed by the 1st appellate court.
1. Whether the plaintiff proves the existence of suit road in S.No.99/12 belong to the defendants?
2. Whether the plaintiff proves his right of easement over the suit road acquired by prescription?
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3. Whether the plaintiff is entitled to the relief of declaration and consequential relief of injunction as prayed?
4. To what order or decree?
Suit came to be decreed as prayed for by order dated 16.9.1999. The said judgment dated 16.9.1999 passed by the trial court was once again called in question before the first appellate court in terms of Section 96, C.PC. and it was numbered as R.A.692/01.
8. The said appeal was allowed on 21.4.2006 by framing the following issues for consideration as found in paragraph 10 of the judgment:
1. Whether the judgment and decree passed by the lower Court is illegal, perverse and unjustifiable one?
2. Whether the judgment and decree warrants interference?
3. What order?16
Both the points have been answered in the affirmative and ultimately the judgment of the trial court is set aside. Hence the plaintiff has approached this court by filing this second appeal in terms of Section 100, C.P.C.
9. This court had admitted the appeal on 5.2.2007 by framing the following substantial question of law:
" Whether the Lower Appellate Court was justified in holding that the plaintiff has not established his right of easement by prescription in spite of over whelming material on record by way of Exs.P-2, P-2, P-26(a), P- 31 and P-32 and the Commissioner's report."
Subsequently the said substantial question of law was modified as follows:
"Whether the plaintiff has proved that he has been using 12 feet road way (RRR) shown in the plaint sketch, in assertion of a title, as of right, peaceably and openly, continuously without interruption and for a period of 20 17 years and thus, has acquired right of easement by prescription?"
10. Both the learned counsel have submitted their arguments at length and have relied on several citations in support of their respective contentions.
REASONS
11. Whenever the first appellate court dealing with an appeal under Section 96, C.P.C. intends to upturn a well considered judgment passed by the trial court, it has to come to close quarters and assign valid reasons indicating as to where the trial court has gone wrong and what should have been the right approach. Principles to this effect have been succinctly explained and reiterated by the Hon'ble apex /01 in the case of SANTOSH HAZARI .v. PURUSHOTTAM TIWARI (AIR 2001 SC 965). The first appellate court is also expected to frame appropriate points for consideration in terms of Order XLI Rule 31(a), C.P.C. on the basis of grounds urged in the appeal as also 18 grounds raised with permission of the court, while submitting arguments on merits.
12. In the present case, the learned judge of the first appellate court who has dealt with R.A.692/01 has framed only two points which are found in paragraph 10 of the judgment. The first point formulated is an omnibus point and does not deal with the grounds raised in the appeal and certainly it can be said that it does not indicate the essence of the main grounds raised in the appeal or the contentions urged by the parties.
13. In paragraph 16 of the judgment, the learned judge has held that Ex.P-1, sale deed dated 31.10.1973 under which the plaintiff is stated to have acquired title and the exchange deed dated 3.9.1996 do not clearly speak about the existence of the 12 feet wide road in Survey No.99/12. Admittedly 'B' schedule property belongs to the 1st defendant and the same is not in dispute. Though he has 19 denied the averment in regard to acquisition of title by the plaintiff in respect of Survey No.99/9, no suggestion is put to PW-1 in his cross-examination that the northern side of the land is nor his i.e. plaintiff's property. The entire property indicated in the rough sketch appended to the plaint which is inclusive of 'A' schedule and 'B' schedule property and Survey No.99/13 originally belonged to Ayeshabi, is not in dispute. There is also no dispute that about 3 cents of land were given by the 1st defendant for widening Kulur ferry road out of a total of 27 cents and therefore, the total extent of land now belonging to the 1st defendant is only 24 cents.
14. The learned judge of the first appellate court in paragraph 31 of the judgment has discussed about the possibility of creating and providing ingress and aggress for the plaintiff either in Survey No.99/13 or 99/14 cannot be ruled out as Ayeshabi, was its previous owner and the 20 same was exchanged in favour of Shanbhog vide dated 3.9.1956, and that such existence of road, according to the trial court, is in accordance with the sketch prepared by the Commissioner of Assistant Director of Land Records (ADLR, for short). The case of the defendants is that there is a road lying on the western edge of Survey No.99/13.
15. What is argued by the learned counsel for the defendants is that the road so mentioned either in the sale deed or exchange deed was made available as access from Survey No.99/13 to Survey No.99/9, and therefore, there was absolutely no road left in Survey No.99/12. Ex.P-26 is a copy of the sketch appended to the licence issued by the City Municipal Corporation of Mangaluru ot the 1st defendant to renovate the house in 'B' schedule property. While seeking permission/licence, the 1st defendant himself had produced a sketch showing existence of his property on the western side of the road. Of course, the 21 width of the said road indicated in the plan. is not mentioned.
16. What is argued by the learned counsel for the defendants is that the road so shown cannot be considered as part and parcel of Survey No.99/12 but the eastern boundary of Survey No.99/12, and that theh road is in existence in Survey No.99/13. Of course Ex.P-26 depicts the width of the road as 8 feet. Therefore, the learned judge of the first appellate court, in paragraph 35 of the judgment, has held that there is inconsistency in regard to the width of the road claimed by the plaintiff and the width of the road shown in Ex.P-26. Hence it is argued by the learned counsel for the defendants that the plaintiff cannot take advantage of the weakness of the defendant's case and that the plaintiff has to succeed on the strength of his own case. It is further argued by the learned counsel for the defendants is that the initial burden cast on the 22 plaintiff is not effectively discharged and therefore, the onus did not shift on the other side. He has relied on Sections 101 and 102 of the Evidence Act.
17. What is 'burden of proof' is very well explained by the Hon'ble apex court in the case of NARAYAN BHAGAWANTRAO GOSAVI BALAJIWALE .v. GOPAL VINAYAK GOSAVI & OTHERS (AIR 1960 SC 100). It is only the legal burden which remains constant and the moment the initial burden is discharged, the onus goes on shifting on the basis of the evidence placed on record by the parties and their witnesses. The relevant portion of the judgment in the case of NARAYAN BHAGAWANTRAO GOSAVI is applicable and is extracted below:
10. The appellant contended that this was a special suit under Section 5(3) of the Charitable and Religious Trusts Act, 1920, and prove that there was a religious and charitable trust of a public character in favour of the deity. He contended that the two Courts below had placed 23 the burden of proof upon him to show by positive evidence that he deity was a family deity, and that the properties were his private properties. According to him, the defendants ought to have proved their case, and if they failed to prove affirmatively that case, then the suit ought to have been decreed in his favour.
The expression "burden of proof" really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that means that on a contested issue one of the two contending parties has to introduce evidence. Whichever way one looks, the question is really academic in the present case, because both parties have introduced their evidence on the question of the nature of the diety & the properties and have sought to establish their own part of the case. The two Courts below have not decided the case on the abstract question of burden of proof; nor could the suit be decided in such a way. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence 24 and the conflicting evidence can be weighted to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.'
18. In the present case, the plaintiff is not claiming any right of way, but only a prescriptive easement. His case is that he has acquired a right of easement by way of prescription by using the same for more than 20 years. If he had claimed only a right of easement, then the question of existence of any alternative way on the northern side of 'A' schedule property would have arisen. In fact, the plaintiff has reiterated all the contents of the plaint in his examination-in-chief. He has been cross-examined at length. In paragraph 12 of his cross-examination, PW-1 has deposed that the approximate area of the space over which he is claiming easementary right could be 3 cents.
19. Two-and-a-half cents is equal to 1,089 sq.ft. Plaintiff claims that the approximate length of the disputed 25 space is 100 feet starting from Kolur ferry Road on the south and an iron gate is installed by him in the southern edge of his property, i.e. on the northern edge of the defendant's property. He has deposed that he has pupt up 4 buildings in 'A' schedule property and the door of his house faces the west. He has specifically deposed that he has put up a shed on the further north of another building and it is adjacent to the compound wall on the northern side. He has admitted that people going to Adarshnagar walk from Kolur-ferry Road which is adjacent to the north of his property. According to him, there may be 20-25 houses in Adarshnagar. A suggestion put to him that if the shed put up by him adjacent to the northern side is removed, he can make use of this road, is specifically denied. He has stated that the said shed cannot be removed.
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20. PW-1 has relied on Ex.P-3, the permission obtained form the Municipal Corporation at Mangaluru while renovating his house. In it, a road is shown on the eastern side of the property belonging to the defendants. In fact, he has specifically denied a suggestion that he has access on the northern side of the property which is a road leading to Adarshnagar from Kolur-ferry Road. In paragraph 14 of his cross-examination, PW-1 has specifically deposed that to the east of the road indicated by the letters 'RRR', is the property of Rashid Khan and in between the property of Rashid Khan and the schedule road indicated by the letters 'RRR', is the compound. He has admitted that the property of Rashid Khan is in Survey No.99/13 of Kolur village, and has clarified that adjacent to the side of the compound wall adjacent to Survey No.99/12, there are coconut trees which are 20 years old and also a mango tree which is 60 years old. 27
21. PW-1 has specifically deposed in paragraph 14 of his cross-examination that no road exists abutting the said compound wall which bifurcates Survey No.99/12 and No.99/13. It is not suggested to him that there exists a road immediately on the eastern side of the compound wall of Survey No.99/13. He has stated that the property in Survey No.28/A which is on the north-east of the defendant's property is at a higher level and that No.99/9 is comparatively on a lower trajectory, and that Survey No.99/12 is also on a lower trajectory when compared to Survey No.99/9.
22. One important aspect is made known to the court by PW-1 during his cross-examination as found in paragraph 15 of his cross-examination. He has specifically deposed that on the edge of the land in Survey No.99/9 and 28/A, he has put up a retaining wall and that was put up in the year 1978 and about 4 feet of the property in Survey 28 No.28/A is used. This would definitely indicate that the land in Survey No.99/9 and 28/A are separated by a retaining wall and he has installed an iron gate on gthe southern side of his property which is on the northern edge of the defendant's property. Therefore the existence of any out let in Sy.No.99/9 to 99/13 is highly improbable. He has specifically deposed that the iron gate is on the north-eastern edge of the dfendant's property. He has specifically deposed in paragraph 16 of his cross- examination that there is absolutely no outlet from Survey No.99/13 to go to his property and that the land in Survey No.99/13 is on a lower trajectory when compared to Survey No.99/9. He has specifically deposed that Survey No.99/13 is on a lower trajectory of 8-10 feet from No.99/9. There are no steps leading from Survey No.99/9 to Survey No.99/13 and that the moment he opens the iron gate put up on the south eastern edge of his property, 29 he will step into Survey No.99/12, i.e. the property of the defendants.
23. This material assertion of PW-1 about the retaining wall being put up in between his land and Survey No.28/A and there being no steps from Survey No.99/9 to Survey No.99/13 and that No.99/13 and No.99/12 being bifurcated by laterite stone wall, the plaintiff's assertion cannot be found fault with.
24. PW-2, Ganesh Kamath was a tenant in one of the buildings put up by the plaintiff in 'A' schedule property. He has specifically deposed that the 12 feet road is in existence ;in the property of the defendants and that is the only access to the plaintiff's property and that he vacated the house. It is his case that he had made use of the said 12 feet road indicated by the letters 'RRR' while bringing his belongings in a Matador van to occupy the rented house 2 years prior to the filing to the suit. It is his case 30 that he has a Matador of his own and he uses it both for commercial purpose and for personal use. He has specifically deposed that the defendants had put up laterite stones in the said space indicated by the letters 'RRR' and had made it unusable just prior to the filing of suit. He has identified Exs.P-18 to P-24 as photos depicting the realities found in the schedule property. In his cross-examination conducted on 20.11.1995, PW-2 has specifically deposed that the 1st defendant had threatened him not to depose in favour of the plaintiff, lest, he would cause some problem to him. He is stated to have given a complaint to the police in that regard. Though time was granted to cross-examine PW-2, he was not cross- examined and therefore his assertion has virtually remained unchallenged. This is in great support of the assertion of the plaintiff.
25. Varadaraj-PW-3 knows the plaintiff and the defendants and has spoken about the existence of the right 31 of way as shown in the letters 'RRR.' It is his case that he had transported the household articles near Vasudev Pal's place.
26. Yallappa-PW-4 was working in ADLR Office at Mangaluru. Ex.P-2 is the nakashe (map) of Kolur village and Ex.P-2(a) is the certified copy and the same had been produced by him. He is also not cross-examined and therefore, the contents of Ex.P-2 cannot be denied.
27. Lokesh Achar was the village accountant of Kolur village and has got marked Ex.P-31 which depicts the field of entire Survey NO.99. Ex.P-32 is a copy of the licence issued by the Municipal Corporation, Mangaluru, to the 1st defendant on 22.11.1990. It is supported by the map furnished by the 1st defendant himself vide Ex.P-33. While putting up a house, he has shown existence of a road on the eastern side. When the court commissioner Sri Inavalli went to the spot and inspected in the presence of the 32 plaintiff and the 3rd defendant, there was no road in existence in Survey No.99/13. Even when he visited the spot for the second time at the instance of the court, there was no road as such in Survey No.99/13. This aspect of the matter has been taken into consideration by the learned trial judge in the earlier judgment as well as the latter judgment. The earlier commissioner's report is marked as Ex.C-1 in which the court commissioner has mentioned about the road as an access to the plaintiff's property up to the public road i.e. Kolur Ferry road. Ex.C- 1 depicts that there is a direct approach to the defendant's property from Kolur-Ferry Road and the commissioner- ADLR had also submitted a report with a sketch in which it is shown that Adarshnagar is to the south of 'A' and 'B' schedule property and the existence of the road is shown in Survey No.99/12B. This report is not objected to by the parties.
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28. Of course neither the plaintiff nor the defendants have submitted any objections to the report of the ADLR and the trial court has reiterated the same. The same cannot be found fault with. Hence the report becomes evidence for all purposes in terms of Order XXVI Rule 10(2), C.P.C. While analyzing the evidence of the parties, the learned trial judge has relied on some of the useful admissions elicited from the mouth of the 3rd defendant examined as DW-1. The best person to have spoken about the case was the 1st defendant, but he has not chosen to examine himself. What is deposed by DW-1 is that his father has nervous problems and shaking of hands and legs; poor vision and that he does not have proper memory and is unable to attend court to give evidence. Therefore, a specific suggestion is put to him that his father has been purposefully withheld, lest, he would speak the truth and thereby their defence would be shattered. 34
29. In fact, the land in Survey No.99/12 is in the name of the 1st defendant himself. DW-1 has admitted in cross- examination that towards the east of 'B' schedule property is a wall of some person and he does not know him. He has admitted a suggestion as true that he has raised this wall and there is heap of mud. He has further admitted that on the western side of the wall as shown in Ex.P15, the plaintiff is using the road and according ot him, he is using the road after obtaining injunction order. He has admitted that the existence of the iron gate as found in Ex.P-18, photograph and that the said gate belongs to the plaintiff. He has feigned ignorance about the width of the road shown to him in Ex.P-18. In fact he has deposed that he has not heard the name of Ayeshabi or her husband Sheikh Saheb, and does not know that the property originally belonged to Ayeshabi. He does not even know that Sheikh Saheb, at the time of selling the property to the plaintiff, had left 12 feet wide road for the purpose of 35 being used as road. He does not even know that Ambabai was dead. In fact, the 1st defendant rlies upon the deed executed by Ambabai. He does not know anything about Ayeshabi executing the deed of exchange with Ramanath and later on Vasudev Shetty and Revathi Shetty enjoying the property till 1973.
30. On the other hand, DW-1 has specifically admitted that there is a compound wall towards the northern side of plaintiff's house and he does not know when the shed was put up. He is not able to say how many days prior to the filing of the suit the shed was put up. On the other hand, PW1 has asserted that long back the shed was constructed and there is no access to his property from the northern road. The defendant is stated to have objected when the plaintiff started using the disputed road. He has admitted in his cross-examination conducted on 11.3.1996 as true that as per Ex.P-26, on the northern side, there is a gate 36 put by the plaintiff. This is not a new gate and this was put up in the year 1978.
31. Unless there was any access on the southern side, the question of installing a gate on the south eastern edge of the plaintiff's property would not have arisen. DW-1 also does not know when the plaintiff constructed the house in his property, though he has denied a suggestion that plaintiff reconstructed the house in the year 1978 and was using the pathway as access.
32. Thus the useful admissions elicited from the mouth of DW-1 cannot be brushed aside. In fact, DW-1 has admitted that he was at the spot when the court commissioner visited for the first time. He has feigned ignorance as to whether there was any drainage, cable wire or electricity and water connections below the disputed road indicated by the letters 'RRR.' He has feigned ignorance about the number of tenants in the property 37 belonging to the plaintiff and their names. What is asserted by him during the course of his cross- examination held on 12.3.1996, is that there is no 12 feet wide road for the plaintiff to come out of his property, except the disputed road. He has admitted that Ex.P-14, photograph was put up after the plaintiff obtained injunction order.
33. Kalyani-DW-2 was examined on 21.3.1996 and she has deposed that since 2 years, the plaintiff is reaching his property through the land of the defendants and earlier to that, he had put up a shed on the northern side and closed the entrance. In her cross-examination, she has specifically deposed that nobody informed her about the case and she knew the defendants for the last 60 years. Her house is next to the house of the defendants and she left 20 years back and started living in Darshan Gudde. She has admitted that earlier it was 25 cents and now it is 38 21cents. She has feigned ignorance about the sons of Vasudev Pal-1st defendant. She has specifically deposed that she had seen Vasudev Pal a day before giving evidence in court and he was walking on the road. On enquiry, Vasudev Pal is stated to have told her that he was going to the store. She had received the court notice a day prior to meeting Vasudev Pal. She is stated to have not told anything to him to attend the court and that she did not like informing him about court summons received by her.
34. From a plain reading of the evidence of DW-2, it is clear that the 1st defendant was capable of attending court and giving evidence. DW-2 met him and they talked to each other. Withholding of material evidence like this, i.e. 1st defendant, would be adverse to the case of the defendants. Hence adverse inference would have to be drawn under Section 114(g) of the Evidence Act on the ground that the 1st defendant is purposefully withheld 39 from giving evidence, lest, it would expose the case of the defendants.
35. Dw-2 has deposed in cross-examination as follows:
'On the northern side of plaintiff's property, there is a compound wall. Towards the northern side of plaintiff's property, there is 10' compound wall upto northern end. The said wall constructed about 2 years back. Two years back on the northern side, there was some mud wall. There was a passage to the plaintiff to go to his house, I have seen the plaintiff closing the passage and putting the shed 2 years back.' She has specifically admitted that after the defendants' property, there is a pathway through which a man can pass through, and that plaintiff is using that passage which is in the end of defendants' property. From this, it is clear that there is a pathway in existence connecting Kolur-Ferry. Road on the south as described in the schedule. The width, according to DW-2, is 2 feet. When the court commissioner advocate visited the spot, he had specifically shown the existence of a road as indicated by the letters 'RRR.' It was bounded on the east by laterite stone compound wall, west by heaps of mud from the south upto the north.40
36. DW-1 who is the son of the 1st defendant, has specifically admitted that he was present when the ADLR visited the spot and that he (ADLR) did not ask him anything about the road on the western side of Survey No.99/13. He has admitted that there is a compound wall in between Survey Nos.99/12 and 99/13 and that there is an old mango tree adjacent to the side wall and also few coconut trees. He has admitted that inEx.D12, it is not shown that the road runs in Survey No.99/13. He has admitted that in Ex.D7, the road spoken to by him is not shown. He has admitted that his father purchased the property from Sheikh Golal, and that the plaintiff has put up a gate on either side of the gate, stone pillars are erected.
37. DW-4, Rashid Ahamad Boloor is the son of Sheikh Boloor. In his cross-examination, he has admitted that when he purchased the property, the plaintiff was using 41 the road existing on the north side of Survey No.99/9 and that road was in existence from Survey Nos.99/9 to 99/13 and the plaintiff was using the same. He has specifically admitted that in the sale deed executed by his mother to the plaintiff, nothing is mentioned about the road leading from Survey Nos.99/9 to 99/13.
38. In criminal cases, prosecution is expected to prove the guilt of the accused beyond all reasonable doubt, and a higher degree of proof is required. Evidence recorded in civil cases is to be assessed on the touchstone of intrinsic probabilities. Whose case is more probable will have to be found out applying the principles enunciated by the Hon'ble apex court in the case of NARAYAN BHAGAWANTRAO GOSAVI (supra). As held in the said decision, the burden of proof is the legal burden which remains constant and the moment the initial burden is 42 discharged, the onus goes on shifting on the basis of the evidence placed on record by the parties.
39. In the present case, the plaintiff is examined and has produced voluminous documentary evidence. The evidence of material witness, i.e. PW-2 who was a tenant under the plaintiff, has virtually remained unchallenged. Defendants have tried to take advantage of non- mentioning of 12 feet wide road in the sale deed obtained by the plaintiff and also in the exchange deed as the road connecting Kolur-Ferry Road on the southern side of the defendants' property. This cannot be blown out of proportion to non-suit the plaintiff.
40. Sri Inavally T.N. a practicing advocate of Mangaluru Bar had been appointed as court commissioner when an interim order was granted by the trial court and he had submitted a detailed report along with a sketch. He was asked to visit the spot again after appearance of the 43 defendants. The ADLR also chose to file a detailed report. Apart from this, the very licence obtained by the 1st defendant from the Municipal Corporation, Mangaluru, to renovate his house, ,depicts the existence of a road linking Kolur-Ferry Road and Survey No.99/9 on the eastern side of his property. The trial court has specifically held that the defendant has thoroughly failed probablise existence of the road which is immediately on the eastern side of the laterite stone wall put up in between Survey Nos.99/12 and 99/13. Some important and useful admissions elicited from the mouth of DW1-3rd defendant and his witnesses have been brushed aside by the first appellate court while upturning the well considered passed by the trial court.
41. Section 13 of the Indian Easements Act, 1882, speaks of easement of necessity and quasi-easements. Section 15 of the said Act speaks about acquisition of easement by prescription. The plaintiff herein has averred 44 that he has acquired easement by way of prescription on the ground that he has had been using the access measuring 12' feet in width indicated by the letters 'RRR' running from Kolur-Ferry Road to his house on the eastern edge of the defendants' property for more than 20 years. Section 15 of the Easements Act, with illustration 'A,' is reproduced below:
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, an 45 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 fulfillment 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 enjoyment by reason 46 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 thereon 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.
Illustrations- A A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, 47 but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto, as an easement and as of right, without interruption, from 1st January, 1862 to 1st January 1882. The plaintiff is entitled to judgment.
The words 'as an easement' appearing in Section 15 are indicative of the fact that the right must be enjoyed by a person in his capacity as owner of certain land (called dominant heritage) for the beneficial enjoyment of the land over certain other land not of his own. The true meaning of the expression 'as of right' is that the enjoyment of the right should not be a secret or by stealth or by sufferance or the leave and licence of another person. Therefore, the animus of the person exercising the right, which is a question of fact, is required to be determined from the circumstances proved on record of each case. If positive evidence to prove this fact is not available, the court is within its rights to draw a presumption from long 48 continuous user of a right that such user which was open, peaceable and unobstructed must be in conscious exercise of right.
42. Therefore, the animus of the person exercising the right which is a question of fact, is required to be determined based on the degree of proof in each case. The person who claims to have acquired easement by way of prescription must necessarily aver that he had had been using the property of the other openly, peaceably and without interruption.
43. A person who claims prescriptive right of easement is expected to prove that it is a right and that is is being used for more than 20 years up to the time within 2 years next to the institution of the suit where the claim is contested. The difference between customary easement and prescriptive easement is that persons claiming customary easement are not only expected to prove the 49 elements as set out in Section 15 of the Easements Act, but also something more, that is to say, customs set up was reasonable, certain and compulsory. For a person claiming easement by way of prescription, it is not necessary that the user should be exclusive, but the person who exercises it under some claim existing in his own favour independently of all others.
44. The plea of prescriptive easement and customary easement are contradictory and inconsistent with each other and hence both cannot co-exist. In the present case, the plaintiff has specifically averred in paragraph 3(a) of the plaint that apart from the roadway indicated by the letters 'RRR,' there is no other road or approach connecting from Kolur-Ferry Road which is a public road and that it is absolutely meant for better enjoyment of 'A' schedule property. In paragraph 3(h), plaintiff has specifically averred that he has been enjoying the said road 50 as an easement openly, peaceably and without any interruption for the past 20 years and has acquired absolute prescriptive right. The prayer sought for in paragraph 6(a) is declaration that the plaintiff has acquired absolute right of easement over the roadway indicated by the letters 'RRR' by way of prescription and for consequential permanent injunction.
45. Learned counsel representing the defendants, Mr.Mohan Bhat has relied on a decision of the Hon'ble apex court in the case of BACHHAJ NAHAR .v. NILIMA MANDAL & ANOTHER (CDJ 2009 SC 194 = 2009(1) SCJ
368). In paragraph 14, the Hon'bleapex court has specifically held that pleadings necessary to establish easement by prescription are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in 51 peaceful, open and uninterrupted enjoyment of the right for a period of 20 years (ending within 2 years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used.
46. The case of the plaintiff in the present case is that 'A' schedule property was purchased by him in the year 1973 from its owner who had in turn acquired it by way of 52 exchange deed in the year 1956. In both the documents, there is a specific reference about the existence of a connecting road. Just because it is not mentioned as a road linking the plaintiff's property with Kolur-Ferry Road, it cannot be said that the plaintiff has failed to prove existence of the disputed road. As already discussed, the 1st defendants has taken a specific plea that there is a separate way leading from Survey Nos.99/9 to 99/13, but he has not been able to probablise even remotely the existence of any road in Survey No.99/13. All the requirements, as indicated in paragraph 14 of the decision in the case of BACHHAJ NAHAR (supra) are found in the plaint filed in the present case.
47. Learned counsel representing the defendants has relied on yet another decision rendered in the case of RAMA KANYABAI & ANOTHER .v. JAGADISH & OTHERS (CDJ 2011 SC 36). What is ultimately held is 53 that the easement of prescription can be acquired only peaceably and in open enjoyment without interruption for a period of 20 years and that customary easement can be acquired by virtue of local customs. As already discussed, the plaintiff in the present case has not claimed customary easement. On the other hand, he has specifically averred that even before he purchased the property, the earlier owner was making use of this 12 feet wide space running upto 100 feet a distance of from Kolur-Ferry Road upto his property and that he continued to enjoy the same.
48. Though the plaintiff and his witnesses have been thoroughly cross-examined, the defendants have not been able to elicit anything from their mouth to even remotely suggest that the shed so put up by him in schedule 'A' property abutting the compound wall on the northern side was of recent origin. Nothing is forthcoming about the opening on the northern side compound wall abutting the 54 road as access to his land, though the plaintiff has admitted existence of a road running east-west on the northern side of the compound wall put up in his property.
49. Learned counsel, Mr.Mohan Bhat has relied upon a decision rendered in the case of THULAHALLI KOTRABASAPPA .v. PUJARI RANGAOOA (CDJ 1995 KAR 262 = 1986(2) KLJ 605) to contend that the requisite pleadings are not forthcoming in the present case to claim easementary right by way of prescription. As per the facts in the case of T.KOTRABASAPPA (supra), there was neither pleading nor issue regarding acquisition of easement by way of prescription. In fact, no argument also had been advanced in regard to acquisition by way of prescription.
50. Thus the above three decisions relied on by the learned counsel for the defendants are of no assistance to the case of the defendants in any manner.
5551 Yet another decision reported in the case of JUSTINIANO ANTAO & OTHERS .v. SMT.BERNADETTE PEREIARA (AIR 2005 SC 236) is relied upon by Mr. Mohan Bhat. As per the facts of the said case, the plaintiff had claimed right of access through prescription and was using it as an access to his house as of right through the approach of the defendant for more than 20 years. But he was not able to prove the continuous user. Apart from that, the plaintiff had access to his house on the southern side being used by her for a long time. Therefore, the claim made by the plaintiff therein for having acquired prescriptive easementary right, is held to be not maintainable. The facts of the present case are quite distinguishable from the facts of the said case and hence the said decision is not of any help to the case of the defendants.
56
52. Long continued user gives rise to a presumption, which however, is rebuttable by proof to the contrary. Such use must have been as of right and not with leave and licence of another. In fact, he is not claiming any licence or lease in any manner.
53 The trial court has considered the evidence in great depth and has assessed the evidence on the basis of broad preponderance of probabilities. The plaintiff and his witnesses have categorically deposed that the plaintiff has had been using the disputed portion in the defendants' land as roadway and no serious inconsistencies are found in the evidence of the witnesses examined on behalf of the plaintiff to disbelieve or disregard their version.
54. The first appellate court has blown out of proportion few inconsistencies found in the case of the plaintiff to non-suit him. Non-mentioning of 12 feet wide road as a link to connect Kolur-Ferry Road with 'A' schedule property 57 in the sale deed or exchange deed, will not come in the way of the plaintiff and it does not support the case of the defendants. On the other hand, licence obtained by the 1st defendant at the time of renovating his house clearly indicates existence of a road on the eastern side connecting Kolur-Ferry Road and plaintiff's 'A' schedule property. He has not probablised that the said road exists in Survey No.99/13 belonging to another.
55. Useful admissions elicited from the mouth of DW-1 (3rd defendant) and non-examination of the 1st defendant who purchased 'B' schedule property long back, have not been taken into consideration. There is no reason to disbelieve the first commissioner's report and the report submitted by the same advocate-commissioner for the second time and also the report of the another commissioner which is not objected to by the parties to the suit. Thus, viewed from any angle, this court is of the 58 opinion that the first appellate court has committed serious illegality and perversity by ignoring the overwhelming evidence placed on record. Thus the modified substantial question of law is answered in the affirmative.
56. Plaintiff had been protected by way of an interim order throughout the pendency of the matter in the trial court as well as the first appellate court. For the first time, the injunction which was in force came to an end when the first appeal was allowed in 2006. On the basis of the same, the defendants started obstructing the plaintiff's peaceful enjoyment and use of the roadway in question and even tried to damage the road, and therefore, this court had been requested to appoint a commissioner to visit the spot and to take appropriate action on the basis of the report. Consequently, Sri K.V.Narasimhan, retired judge and now a practicing advocate of this court was 59 appointed as commissioner and to submit a report along with a sketch.
57. By virtue of the order dated 29.11.2006, Sri K.V.Narasimhan was appointed as commissioner and as per the report submitted by him, plaintiff had filed an application for a direction to restore the schedule road and on 5.2.2007 an order was passed by this court on I.A.3 and the same is as follows:
ORDER ON I.A.No.III The plaintiff has filed an application for a direction 1to the defendant to restore the suit schedule road, as after the disposal of the appeal the defendant has dug and removed the mud from the road. Prima Facie I am satisfied that the suit schedule road is the only way to which the plaintiff can enter his property. In fact, the photographs which are produced in this case on which reliance is placed by the Courts below, clearly shows that this passage claimed by the plaintiff measures 100 ft. east to west and 12 ft. north to south, situate on the western side of the 60 compound wall of the defendant's property. If the defendant has removed the mud from the said road and made it impossible for the plaintiff to use it as road for ingress and egress to his house, the plaintiff is at liberty to restore the road by taking such steps so that he can use the said road for his ingress and egress. The cost of restoration of the said road would be subject to the result of this appeal.
Sd/-
Judge Since there were some typographical errors, the same was rectified and necessary clarification was given vide order dated 26.3.2007 and the same is reproduced hereunder:
I.A.II/2007 Vide order dated 5.2.2007, in the 11th line 1st word is typed as 'western'. It ought to be 'eastern'. It is for the correction of the said mistake, the present application is filed.
2. In the order dated 5.2.2007 it is observed that the photographs produced in this case on which reliance is placed by the Courts below, clearly shows that the passage claimed by the plaintiff measures 100 ft. east to west and 12 ft. north to south, situate on the western side of the compound wall of the defendant's 61 property. However, on an application filed by the appellant for correction of the typographical error of the said portion of the order it was made clear that the passage claimed by the plaintiff measures 100' North to South and 12' East to West, by the order dated 14.2.2007. Therefore , it is made clear that the passage is situated beyond the defendant's compound wall. But by mistake, it is mentioned as 'western' side. It ought to be the 'eastern' side.
3. The respondent has filed his objections to the said application.
4. I have heard the learned counsel for the parties.
5. I am satisfied that the aforesaid mistake pointed out by the appellant is a mistake which requires to be rectified. Therefore, in place of the word 'western' in the 11th line, the word 'eastern' shall be substituted.
Accordingly, I.A.II/2007 is allowed.
Sd/-
Judge Of course restoration of the disputed road is subject to the outcome of the appeal. Anyhow the plaintiff has got the way restored on the basis of the order passed by this court. 62
58. In the light of the affirmative finding on the re-framed substantial question of law, the appeal will have to be allowed in its entirety and the judgment passed by the first appellate court will have to be set aside.
59. In the result, the following order is passed:
ORDER The appeal is allowed in its entirety. The judgment passed by the first appellate court in R.A.692/04 (R.A.138/99) dated 21.4.2006 is set aside. Consequently the judgment of the trial court in O.S.276/94 dated 16.9.1999 is restored with costs.
Sd/-
JUDGE vgh*