Karnataka High Court
Raghu Ganesh Naik vs Shivanand Narayan Naik on 31 January, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.5173/2012 (DEC/INJ)
BETWEEN
1. RAGHU GANESH NAIK
AGE: MAJOR, OCC: AGRI.,
R/O. KUMBARKERI, KADWAD,
TQ : KARWAR
DIST: UTTAR KANNADA.
2. SUDHAKAR GANESH NAIK
AGE : MAJOR, OCC : AGRIL.,
R/O. KUMBARKERI, KADWAD,
TQ : KARWAR
DIST: UTTAR KANNADA.
... APPELLANTS
(BY SRI.J.S.SHETTY ASSOCIATES & SRI.DEEPAK S.SHETTY, ADVS.)
AND
1. SHIVANAND NARAYAN NAIK
AGE : MAJOR, OCC: AGRIL.,
R/O. KUMBARKERI, KADWAD
TQ : KARWAR.
DIST: UTTAR KANNADA.
2. SANTHOSH NARAYAN NAIK
AGE : MAJOR, OCC: AGRI.,
R/O. KUMBARKERI, KADWAD,
TQ: KARWAR.
DIST: UTTAR KANNADA.
2
3. SMT.DURGABAI SRIKANT NAIK
AGE : MAJOR, OCC: AGRIL.,
R/O. KUMBARKERI, KADWAD
TQ : KARWAR.
DIST: UTTAR KANNADA.
4. ULLAS KRISHNA NAIK
AGE: MAJOR, OCC : AGRIL.,
R/O. KUMBARKERI, KADWAD
TQ.KARWAR
DIST: UTTAR KANNADA.
5. RAMABAI KRISHNA NAIK
AGE: MAJOR, OCC: AGRIL.,
R/O. KUMBARKERI, KADWAD
TQ : KARWAR.
DIST: UTTAR KANNADA.
6. VASUDEV BABU LNAIK
AGE: MAJOR, OCC: AGRIL.,
R/O. KUMBARKERI, KADWAD,
TQ : KARWAR,
DIST: UTTAR KANNADA.
7. GANAPAI BABU NAIK
AGE: MAJOR, OCC: AGRI.,
R/O. KUMBARKERI, KADWAD,
TQ : KARWAR, DIST: UTTAR KANNADA.
... RESPONDENTS
(BY SRI.SANGRAM S.KULKARNI, ADV. FOR
SRI.V.P.KULKARNI, ADV. FOR R1-R3, R6 & R7,
R5 DECEASED AND R4 IS LR OF DECEAESD R5)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
THAT THE JDUGMENT AND DECREE DATED 24.10.2011 PASSED IN
R.A.NO.23/2005 BY THE ADDITIONAL CIVIL JUDGE (SR.DN.) KARWAR
AT KARWAR CONFIRMING THE JUDGMENT AND DECREE DATED
20.06.2005 PASSED BY CIVIL JUDGE (JR.DN.) KARWAR AT KARWAR
IN O.S.NO.5/1994 MAY KINDLY BE SET ASIDE BY ALLOWING THIS
APPEAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned regular second appeal is filed by unsuccessful defendants wherein both the courts below decreed the suit filed by respondents/plaintiffs declaring that respondents/plaintiffs have acquired right by way of easement of necessity in Sy.No.115/1D of Kadwad village as shown in suit hand sketch and consequently both the courts below have granted perpetual injunction thereby restraining the present appellants/defendants from disturbing peaceful enjoyment and usage of suit path.
2. Facts leading to the case are that:
Respondents/plaintiffs filed a suit for declaration claiming easementary right and consequential relief of injunction. Respondents/plaintiffs specifically contended that suit land bearing Sy.No.115 was originally owned by one Ghanshyam, which was cultivated by ancestors of plaintiffs and defendants. Respondents/plaintiffs further contended that there is residential house in the said land. 4 Respondents/plaintiffs further contended that suit land was subsequently divided into separate pot hissas based on actual possession. Based on actual possession, the parties submitted form No.7 seeking grant of occupancy right and the Land Tribunal has conferred occupancy rights. Respondents/plaintiffs specifically contended that appellants/defendants were granted occupancy rights to an extent of 33 guntas in Sy.No.115/1D.
Respondents/plaintiffs have specifically pleaded that Sy.No.115/1D which is divided into pot hissa constitutes eastern half of entire suit survey number, which is surrounded by paddy field. Respondents/plaintiffs further claimed that there is a Karwad/Kadwad public road. Respondents/plaintiffs have taken a specific contention that since the time of their ancestors they are using pathway, which is depicted in the hand sketch annexed along with the plaint. Respondents/plaintiffs specifically contended that there is pathway of four feet which runs across Sy.No.63 from South-East corner of Sy.No.63 and 5 thereafter it passes through boundary line of Sy.Nos.115 and 114. On these set of pleadings, respondents/plaintiffs filed a suit asserting easmentary right over the suit pathway.
3. The appellants/defendants on receipt of summons contested the proceedings and stoutly denied the entire averments made in the plaint and specifically contended that there is a panchayat road on the extreme south of Sy.No.115/1D and there is also separate pathway on the western side of boundary of Sy.No.115/1D. Therefore, appellants/defendants contended that these two alternate roads are being used by respondents/plaintiffs and as such, they are not entitled for relief of declaration of easmentary right as claimed in the plaint.
4. Both the parties to substantiate their claim let in oral and documentary evidence. Respondents/plaintiffs examined two witnesses and relied on documentary evidence vide Exs.P1 to P12. By way of rebuttal evidence, 6 appellants/defendants examined one witness as D.W.1 and relied on documentary evidence vide Exs.D1 to D10. During the pendency of the suit, Commissioner was appointed and based on memo of instructions, he visited the spot and submitted his report. The trial court having assessed oral and documentary evidence and also Commissioner's report has come to the conclusion that respondents/plaintiffs have succeeded in establishing existence of pathway and that they have been using it since the time of their ancestors. However, the claim made by respondents/plaintiffs in regard to alleged existence of public well in Sy.No.115/1D was negatived by the trial court. The trial court having referred to the Commissioner's report has recorded a categorical finding that evidence on record clearly demonstrate existence of pathway. Therefore, the trial court was of the view that respondents/plaintiffs are entitled to use the pathway and therefore, they have got easmentary right in the suit schedule property. Accordingly, proceeded to grant the 7 relief of declaration by holding that respondents/plaintiffs have got easmentary right by way of necessity to use the pathway and consequently granted perpetual injunction.
5. The present appellants/defendants feeling aggrieved by the judgment and decree of the trial court preferred an appeal in R.A.No.23/2005. The first appellate court having independently assessed oral and documentary evidence has meticulously examined the Commissioner's report and other supporting documents placed on record by respondents/plaintiffs. The first appellate court having independently assessed oral evidence on record has meticulously discussed at para 16 of the judgment indicating the existence of pathway. The first appellate court was of the view that present appellants/defendants even after remand have failed to establish the existence of alternate way. On these set of reasoning, the first appellate court proceeded to dismiss the appeal.
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6. Heard the learned counsel for the appellants, learned counsel for the respondents and perused the judgments under challenge.
7. What emerges from the records is that, suit land bearing Sy.No.115 was one compact land. The parties to the suit were admittedly tenants and there was partition based on their actual enjoyment and cultivation. Therefore, in terms of actual possession, hissa proceedings have taken place and sub-division was effected by the authority. Both the courts below have concurrently held that suit land admittedly was one single unit and on account of sub- division, the respondents/plaintiffs who are adjoining owners are entitled to use the pathway to have excess to the main road. The Commissioner on local inspection has submitted his report and the same depicts existence of pathway in the land bearing Sy.No.115/1D. Both the courts below have concurrently held that respondents/plaintiffs are entitled to use suit pathway. Both the courts below 9 have also taken note of the fact that appellants/defendants have not contested the Commissioner report by filing objections. Both the courts have found that appellants/defendants have not cross-examined the Commissioner. Therefore, the material on record coupled with the Commissioner report clearly depicts the existence of suit pathway.
8. Though the counsel for appellants/defendants would vehemently argue and contend before this court that Commissioner report is infact in his clients favour, however, the said contention cannot be acceded to. The materials on record coupled with the Commissioner report clearly establish the existence of pathway. The appellants/defendants have come to the court with a specific stand that respondents/plaintiffs have two alternative roads. Having taken such a contention, it was equally incumbent on the part of the appellants/defendants to discharge their initial burden by producing clinching 10 rebuttal evidence to demonstrate the existence of alternative road. The first appellate court infact has taken judicial note of the material fact that even after remand by the first appellate court, the present appellants/defendants have not chosen to lead further evidence to prove the existence of alternative road. Therefore, by placing reliance on the evidence adduced by respondents/plaintiffs coupled with the Commissioner's report, both the courts below have come to the conclusion that respondents/plaintiffs have easmentary right by way of necessity.
9. From the material on record, it is forthcoming that separate pot hissas are formed in Sy.No.115. It is also forthcoming from the records that occupants of Sy.No.115 were conferred with occupancy rights by the Land Tribunal. Therefore, there are various sub-divisions in Sy.No.115. If Sy.No.115 originally was one single compact and if there are pot hissas on account of adjudication of claim of occupants in Sy.No.115, then the doctrine of implied grant 11 in the present case on hand is squarely applicable. Both the courts below have recorded a concurrent finding of fact that plaintiff cannot use his land i.e., dominant tenement unless he is given an access through the suit pathway. The Commissioner report coupled with other clinching evidence clearly establishes the existence of a pathway. In the present case on hand, both the courts below have concurrently held that there is severance of tenement and therefore, I am of the view that on account of severance of tenement, the easement that arises are easement of necessity or continuous or apparent easements, which are necessary for reasonable enjoyment of the property granted. The clinching evidence on record adduced by respondents/plaintiffs clearly establishes that all the owners of pot hissas in Sy.No.115 have been using the suit pathway continuously and easement in the present case on hand has arisen on account of severance of tenement and therefore, all the holders of sub-division survey numbers have retained their right to use the suit pathway and 12 therefore, they are entitled to use the suit pathway to the extent which was enjoyed before Sy.No.115 was further sub-divided on account of grant of occupancy rights by the Land Tribunal to the various applicants including the plaintiffs herein.
10. Therefore, this court under Section 100 of CPC cannot re-appreciate the evidence on record. If the existence of pathway is proved and both the courts below have concurrently held that respondents/plaintiffs using the pathway since the time of their ancestors, this court cannot venture into re-appreciate the entire evidence on record and also the Commissioner's report by having recourse to Section 100 of CPC.
11. No substantial question of law arises for consideration in the case on hand. Accordingly, the appeal stands dismissed.
SD/-
JUDGE MBS/-