Karnataka High Court
Smt. Shahajadbi W/O Mahaboobsab Nadaf vs Sri Agasar S/O Gudulal Shaikh on 25 August, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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RSA No. 100849 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO.100849 OF 2022
(DEC/INJ)
BETWEEN:
SMT. SHAHAJADBI,
W/O MAHABOOBSAB NADAF,
SINCE DECEASED BY HER LEGAL HEIRS
1. SRI. SAHEBALAL,
S/O MAHEBOOBSAB NADAF,
AGE: 63 YEARS, OCC: SERVICE,
R/O KADAPATTI, TALUK: JAMKHANDI,
DISTRICT: BAGALKOT - 587 119.
2. SRI. AKBARSAB,
S/O MAHEBOOBSAB NADAF,
AGE: 56 YEARS, OCC: COOLIE,
R/O KADAPATTI,
TALUK: JAMKHANDI,
DISTRICT: BAGALKOT - 587 119.
3. SMT. MALANABI,
W/O AMINSAB GANGANALLI,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O KADAPATTI,
TALUK: JAMKHANDI - 587 119.
...APPELLANTS
(BY SRI. GIRISH A. YADAWAD, ADVOCATE)
AND:
1. SRI. AGASAR,
S/O GUDULAL SHAIKH,
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O KADAPATTI, TALUK: JAMKHANDI,
DISTRICT: BAGALKOT - 587 119.
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RSA No. 100849 of 2022
2. SRI. SHRISHAIL,
W/O SHIVAPPA ITTI,
AGE: 58 YEARS, OCC: PRIVATE WORK,
R/O GOKAK, DISTRICT: BELAGAVI - 591 218.
3. SRI. BASAPPA,
S/O SHIVAPPA ITTI,
AGE: 56 YEARS, OCC: PRIVATE WORK,
R/O HIDKAL DAM,
DISTRICT: BELAGAVI - 591 107.
4. SRI. DUNDAPPA,
S/O SHIVAPPA ITTI,
AGE: 55 YEARS, OCC: PRIVATE WORK,
R/O HIDKAL DAM,
DISTRICT: BELAGAVI - 591 107.
5. SRI. SHRISHAIL,
S/O SHIVAPPA ITTI,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O KADAPATTI, TALUK: JAMKHANDI,
DISTRICT: BAGALKOT - 587 119.
6. SRI. BASAPPA,
S/O SHIVAPPA ITTI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O KADAPATTI, TALUK: JAMKHANDI,
DISTRICT: BAGALKOT - 587 119.
7. SRI. DUNDAPPA,
S/O SHIVAPPA ITTI,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O KADAPATTI, TALUK: JAMKHANDI,
DISTRICT: BAGALKOT - 587 119.
8. RAHEEMSAB,
S/O MAHEBOOBSAN NADAF,
AGE: 60 YEARS, OCC: PRIVATE WORK,
R/O KADAPATTI, TALUK: JAMKHANDI,
DISTRICT: BAGALKOT - 587 119.
...RESPONDENTS
(BY SMT. DEEPA PAVAN DODDATTI, ADVOCATE FOR
SRI MRUTYUNJAY TATA BANGI, ADVOCATE FOR R1;
R2 & R5 - R7 - HELD SUFFICIENT;
R3, R4 & R8 - SERVED)
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RSA No. 100849 of 2022
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF C.P.C., AGAINST THE JUDGMENT AND
DECREE DATED 07.01.2022 PASSED IN R.A.NO.5/2020 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, JAMKHANDI,
REJECTING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.10.2019, PASSED IN O.S.
NO.138/2014 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, JAMKHANDI,
DISMISSING THE SUIT FILED FOR DECLARATION, MANDATORY
INJUNCTION AND PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though appeal is listed for admission, with consent of learned counsel for parties, it is taken up for final disposal.
2. Challenging judgment and decree dated 07.01.2022 passed by Principal Senior Civil Judge, Jamkhandi (for short, "first appellate Court") in R.A.no.5/2020 and judgment and decree dated 28.10.2019 passed by Additional Civil Judge and Judicial Magistrate First Class, Jamkhandi (for short, "trial Court") in O.S.no.138/2014, this appeal is filed.
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3. Appellants herein are legal representatives of original plaintiff along with respondent no.8 herein, while respondents no.1 to 7 herein were defendants no.1 to 4 and 6. For sake of convenience, they shall hereinafter be referred to by their rank in original suit.
4. O.S.no.138/2014 was filed seeking for relief of declaration of plaintiff's right of way over suit property and for consequential relief of injunction restraining defendants from obstructing plaintiff's right and for mandatory injunction to remove obstruction etc.
5. In plaint, it was stated that plaintiff was owner in possession of property bearing VPC no.32 of Kadapatti village from date of its purchase, i.e. 09.10.1978, from Sri Ningappa S/o Dundappa Byakod. It was stated that defendant no.1 was owner of open space bearing VPC no.33/3 and defendant no.2 was owner of open space bearing -5- RSA No. 100849 of 2022 VPC no.31 of Kadapatti village. In between properties of defendants no.1 and 2, there was open space as shown in hand sketch map accompanying plaint. Plaintiff's house was marked with alphabets 'ABCD', while open space was marked as 'KLMN'. To south of said house property was common passage, which was only way for plaintiff for ingress and egress to his house. He had put up a window and door towards southern wall and constructed toilet. Drainage water from said toilet flowed from plaintiff's house through common passage and therefore, plaintiff had right of way over said land. It was alleged that defendants had raised a small wall to obstruct his enjoyment of said area. Left with no other way to reach her property, plaintiff was passing through house of his daughter from north. Width of said passage was 10 ft. infront of defendants' house and bifurcated their properties. It was further stated that plaintiff was using said passage openly, -6- RSA No. 100849 of 2022 peacefully and without obstruction to knowledge of defendants and they never objected to it. It was averred that except said passage, there was no other way for plaintiff to reach his property.
6. It was pleaded that defendants started obstructing plaintiff's right of way illegally by building wall with intention of closing passage permanently. Attempts for resolution through elders failed, constraining plaintiff to file suit.
7. It was further stated that plaintiff had earlier filed O.S.no.52/2006 which came to be dismissed. Even appeal was dismissed. In RSA no.5540/2011, this Court observed that plaintiff needed to file comprehensive suit claiming declaration and reserving such liberty to plaintiff, appeal was disposed off. Thereafter, instant suit was filed.
8. On service of suit summons, only defendants no.1, 4 and 6 entered appearance. -7- RSA No. 100849 of 2022 Defendants no.2 and 3 were placed ex-parte, while defendant no.5 was reported dead. Only defendant no.1 filed written statement denying plaint averments and contending that plaintiff was owner of VPC no.32, while defendants no.1 and 2 were owners of VPC no.33/3 and 31 respectively. Existence of common passage and toilet as claimed was denied. Even causing obstruction was denied. It was stated that plaintiff did not have any right title or interest over property belonging to defendant and there was no cause of action for filing suit.
9. Based on pleadings, trial Court framed following issues:
(1) Whether plaintiff proves that there existed a 10 feet width wahiwat road in front of his house and house of the defendant?-8- RSA No. 100849 of 2022
(2) Whether the plaintiff proves that he is having right of easement over the suit road?
(3) Whether plaintiff proves the alleged interference of defendant no.1 in the suit road as stated in the plaint?
(4) Whether plaintiff proves that he is
entitled for the relief of
declaration, consequential relief
of permanent injunction and also for mandatory injunction as claimed in the plaint?
(5) What order or decree?
10. Thereafter, plaintiff no.1(d) and another were examined as PW.1 and PW.2 and got marked Exs.P1 to P15. On other hand, defendant no.1 was examined as DW1 and two other witnesses as DWs.2 and 3 and Exs.D1 to D10 were marked.-9- RSA No. 100849 of 2022
11. On consideration, trial Court answered issues no.1 to 4 in negative and issue no.5 by dismissing suit.
12. Aggrieved by said decree, plaintiff filed R.A.no.5/2020 on several grounds. It was contended that judgment and decree passed by trial Court was erroneous, contrary to law, facts of case and evidence on record. Trial Court framed incorrect issues and on perverse findings dismissed suit. It failed to consider observations of this Court in RSA no.5540/2011 reserving liberty to file comprehensive suit. Influenced by previous judgment, it dismissed suit on technical grounds.
13. Based on contentions urged, first appellate Court framed following points for its consideration:-
(1) Whether this Court could
intervene in the impugned
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RSA No. 100849 of 2022
judgment and decree passed in
O.S.no.138/2014 dated 28.10.2019?
(2) What order?
14. It answered point no.1 in negative and point no.2 by dismissing appeal.
15. Against concurrent judgment and decree, plaintiff has preferred this appeal.
16. Sri. Girish A. Yadawad, learned counsel for plaintiff submitted that impugned judgment and decree passed by both Courts were illegal, erroneous and unsustainable in law. It was submitted that their existed 10 ft. wahivat road between properties of defendants no.1 and 2 and used for ingress and egress by plaintiff. Court Commissioner had mentioned about its existence in his report. First appellate Court assigned undue importance to properties purchased by plaintiff no.1(d) and held existence of alternative access road. Even Ex.P15 sale deed was ignored. It was
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RSA No. 100849 of 2022 submitted that Court Commissioner in his report indicated existence of window and door towards south-east of his property. It was also reported that a wall was constructed obstructing said door and window and existence of 10 ft. wide passage on other side.
17. Learned counsel submitted following substantial question of law for consideration:-
"Whether both Courts were justified in dismissing suit ignoring contents of report submitted by Court Commissioner which indicated existence of common passage?"
18. On other hand, Smt.Deepa Pavan Doddatti, advocate appearing for Sri. Mruthyunjay Tata Bangi, learned counsel for respondent no.1 supported impugned judgment and decree and submitted that findings of both courts were concurrent and no substantial question of law
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RSA No. 100849 of 2022 arose for consideration. It was submitted that plaintiff had failed to plead and establish existence of passage and easement. Both Courts had arrived at specific finding of fact about existence of alternative way. Therefore, there was no merit in appeal.
19. Heard learned counsel, perused impugned judgment and decree and records.
20. From above submission, it is not in dispute that plaintiff was owner of property bearing VPC no.32 of Kadapatti village while defendant no.1 was owner of VPC no.33/3 and defendant no.2 owner of VPC no.31. While plaintiff claims that area marked with letters 'KLMN' in plaint hand sketch was open space which he was using without any obstruction uninterruptedly and as matter of right to knowledge of whole world from date of purchase of her property, defendants
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RSA No. 100849 of 2022 deny existence of passage and right of plaintiff to pass through it.
21. While passing impugned judgment and decree, trial Court cast burden of establishing existence of right of easement and interference by defendants, upon plaintiff. It referred to pleadings wherein plaintiff asserted that property bearing VPC no.32 was purchased by her, from one Ningappa S/o Dundappa Byakod on 09.10.1978 and about existence of east-west common way in between open space of defendants no.1 and 2 facing north-south as described in plaint hand sketch and further about existence of window and door in southern wall of plaintiff's house. It also referred to pleading about plaintiff having constructed toilet towards southern side of his property, drainage water of which passed through southern common passage to reach main drainage. As per plaint, there was no other way for ingress
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RSA No. 100849 of 2022 and egress to plaintiff's property and hence, claimed right of easement of necessity.
22. It referred to oral evidence of plaintiff through PW.1 and PW.2 and documentary evidence Exs.P1 to P15. It also referred to deposition of DWs.1 to 3 and Exs.D1 to D10 and proceeded to conclude that plaintiff utterly failed to prove existence of common passage on southern side since Ex.P2 sale deed dated 09.10.1978 did not mention about existence of passage towards southern side in its boundary description. Based on said conclusion, it dismissed suit.
23. First Appellate Court referred to Court Commissioner's report and contents of Exs.P2, P3 to P5 which indicated that suit property was surrounded by other properties. It refers to boundary description in Ex.P15 sale deed pertaining to plaintiff's vendor. In said sale deed there was reference to right retained by Mallappa
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RSA No. 100849 of 2022 Channappa Itti vendor of Ningappa Byakod over 4ft.6" passage to south of property purchased. It was held that in absence of specific conveyance of said right, in Ex.P2 sale deed, it could not be held that vendor had intention of conveying right of passage over vacant space. As against said evidence, Ex.D1 certified copy of sale deed of property purchased on 28.03.2009 contained averment about common passage of 4ft.6" width to reach road situated on north of plaintiff's property. Ex.D1 was marked by confronting PW.1 daughter of original plaintiff with it. Since this would indicate existence of alternative way to reach public road, right of easement of necessity would be negated.
24. Insofar as claim about existence of door and window on southern wall of plaintiff's property, it held that there was no effort on part of plaintiff to establish since when they were in
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RSA No. 100849 of 2022 existence and duration they provided access to common passage. It also held that plaintiff failed to establish construction of lavatory by producing permission obtained from authorities. On said findings, it dismissed appeal.
25. In order to establish right of easement by necessity, Section 13 of Indian Easements Act, mandates plaintiff to establish that such easement was apparent, continuous and necessary for enjoyment of property transferred. In instant case, plaintiff purchased suit property from Sri. Ningappa S/o Dundappa Byakod on 09.10.1978 under Ex.P2. Said Ningappa Byakod in turn purchased it from Mallappa Channappa Itti under sale deed dated 30.10.1967 - Ex.P15. While passing impugned judgment and decree, first appellate Court has categorically held that under Ex.P15 - sale deed, Mallappa Channappa Itti retained right of use of passage measuring 4ft.6"
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towards south of property. And there is no mention of same in Ex.P2 about such easement being conveyed.
26. Further defendants have led evidence to establish existence of alternative way by getting marked sale deed - Ex.D1, whereunder, PW.1 purchased property situated north of plaintiff's property. Said deed contains recital about pathway enabling plaintiff to reach public road. Hon'ble Supreme Court in case of Hero Vinoth (Minor) v/s Seshammal reported in 2006 (5) SCC 545 has held:
"...It is limited to barest necessity however inconvenient it is irrespective of question whether a better access could be given by servient owner or not. When an alternate access becomes available, legal necessity of burdening servient owner ceases and easement of necessity by implication of law is legally withdrawn or extinguished as
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statutorily recognised in Section 41. Such an easement will last only as long as absolute necessity exists."
27. Both Courts have held that plaintiff failed to establish easement was by grant. Since defendants established that there was cessation of absolute necessity, rejection of suit would be fully justified in view of Section 41 of Indian Easements Act. Therefore, no substantial question of law arises for consideration.
28. In view of above, I pass following:
ORDER Appeal is dismissed with costs.
SD JUDGE Vmb/GRD