Karnataka High Court
Maharudrappa Puradappa Kurhatti vs Fakirappa Channappa Shintri on 5 October, 2012
Author: N.K.Patil
Bench: N.K.Patil
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 5TH DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE N.K.PATIL
R.S.A.NO.294/2004 (DEC & INJ)
BETWEEN:
1. MAHARUDRAPPA PURADAPPA KURHATTI
AGED: 63 YEARS, OCC: AGRICULTURE
R/O NAVALGUND TQ DHARWAD DIST
2. VIRUPAXAPPA PURADAPPA KURHATTI
AGED: 59 YEARS, OCC: AGRICULTURE
R/O NAVALGUND TQ DHARWAD DIST
3. CHANNABASAPPA VEERABASAPPA KURAHATTI
AGED: 41 YEARS, OCC: AGRICULTURE
R/O NAVALGUND TQ DHARWAD DIST
4. BASAPPA VEERABASAPPA KURAHATTI
AGED: 37 YEARS, OCC: AGRICULTURE
R/O NAVALGUND TQ DHARWAD DIST. ... APPELLANTS
(BY SRI.V.V.GUNJAL,
SRI.V.S.GUNJAL AND
SRI.SHIVAPRASAD, ADVS)
AND:
1. FAKIRAPPA CHANNAPPA SHINTRI
AGED: 48 YEARS, OCC: MILITARY SERVICE
R/O NAVALGUND, JAIPUR SUB.F SHINTRI
14 SIJGIROP, 56 APC
2
2. SMT.DRAXAYANI W/O FAKREPPA SHINTRI
P.A.HOLDER OF DEFENDANT NO.1
AGED 46 YEARS, OCC: AGRICULTURE
R/O NAVALGUND
3. SMT.PARVATEVVA W/O CHINNAPPA SHINTRI
AGED 76 YEARS, OCC: HOUSEHOLD
R/O NAVALGUND
4. NEELAKANTAPPA PURDAPPA KURHATTI
AGE: 67 YEARS, OCC; AGRICULTURE
R/O NAVALGUND. ... RESPONDENTS
(BY SRI.MADAN MOHAN M.KHANNUR, ADV FOR C/R1,
R2 AND 3 ARE SD,
APPEAL ABATED AGAINST R-4 V/O DATED 30.08.2012)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 16.2.2004 PASSED IN R.A.NO
143/2003 (R.A.NO.32/1997) ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, DHARWAD, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 17.2.1997
PASSED IN O.S.NO 30/1987 ON THE FILE OF THE MUNSIFF,
NAVALGUND.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiffs being aggrieved by the impugned judgment and decree dated 16.02.2004 passed in R.A.No.143/2003 on the file of the Principal District Judge, Dharwad, confirming the judgment and decree dated 3 17.02.1997 passed in O.S.No.30/1987 on the file of the Munsiff, Navalgund, for considering the following substantial questions of law:
a) Whether an agreement creating
easementary right is compulsorily
registerable?
b) Whether the document falls under Section
17 of the Registration Act in which case the Registration will be compulsory?
c) Whether the inaction on the part of the defendant No.1 for period about 12 years or not to acquisance on defendant?
2. The brief facts of the case are that the plaintiffs filed a suit against the defendants for declaration of easementary rights over 5' width open space on western, northern and southern side of property bearing CTS No.1746 of Navalgund to reach the eastern road and for letting waste and rain water and for keeping agricultural implements and to put up tap pipes and electricity wirings respectively and restraining the defendants from obstructing the easementary rights permanently and for removal of lavatory constructed in 4 WXYZ portion of the hand sketch map and to award costs of the suit.
3. Plaintiff Nos.1, 2 and defendant No.4 are full brothers and plaintiff Nos.3 and 4 are the sons of elder brother of plaintiff Nos.1 and 2. Defendant No.1 is husband of defendant No.2 and defendant No.3 is mother of defendant No.1. The suit property bearing CTS No.1746 of Navalgund shown by letters ABCD in the hand sketch map is in the possession of defendants. The suit property bearing CTS No.1746 of Navalgund measures 200 sq. yards and it is a 'B' tenure property. The properties bearing CTS No.1745/1, 1747/2 and 1756/2 are ancestral properties of plaintiffs and the properties bearing CTS No.1747/3 and 1745/3 are also in their possession and enjoyment since the time of their ancestors. The above said properties of plaintiffs are situated on the western side of the suit property. The plaintiffs have an easementary right over the 5' width open space situated on western side of the suit property bearing CTS No.1746 of Navalgund to reach their 5 properties as well as eastern government road and they have also an easementary right over the 5' width open space on the northern side of the suit property to let waste and rain water of their properties and so also they have got an easementary right over 5' width open space on the southern side of the suit property for keeping agricultural implements and so also for tap connections and wiring purpose in the 5' width open space around the suit property as shown in the hand sketch map.
4. The plaintiffs are exercising their above said easementary rights for more than fifty years over the suit property without any obstruction and without interruption to the notice of defendants, as well as public and it has also been mentioned in the records of the suit property. Further, on 25.11.1974, defendant No.3 executed the document in favour of the plaintiffs, on a stamp paper with respect to their easementary rights. But defendant No.1 in the first week of February, 1987 while he had come on leave, illegally obstructed the plaintiffs for their above said easementary 6 rights at the instance of some ill-wishers of the plaintiffs by putting bund and constructing lavatory in WXYZ portion and by obstructing the passage through the 5' width western open space of suit property and by blocking the flow of waste and rain water. The defendants, have no right, title, interest in whatsoever manner, to obstruct the above said easementary rights of the plaintiffs and they have not heeded the elders' advise. In the circumstances, the plaintiffs were constrained to file the suit, seeking declarative and injunctive reliefs with respect to their easementary rights and they have prayed for decreeing the suit with costs and for removal of the lavatory through Court Commissioner at the cost of defendants.
5. Upon service of notice to the defendants, defendant Nos.1 to 3 put their appearance through counsel and filed their written statement contending that the avertments of the suit are all false and frivolous and self serving one them and defendant No.4 is not related to the plaintiffs. It was denied that the plaintiffs have got easementary rights over 5' 7 width western open space of the suit property to reach southern government road as well as their properties and they have got easementary rights over 5' width northern open space of the suit property to let waste and rain water of their properties and that they have got easementary rights over southern 5' width open space of the suit property to keep agricultural implements and that they have got easementary rights over 5' width surrounding the open space of the suit property to put up tap pipes and electricity wirings. There is a government road on the southern side of the properties of plaintiffs and the plaintiffs use the said government road to reach their properties. They have not used the suit property in reaching their properties at any time and the waste and rain water of their houses is not let over the suit property but it has been let through the open space of plaintiffs to the southern government road. The plaintiffs be put to strict proof of their contention that the properties bearing CTS No.1745/1, 1747/2 and 1746/2 are their ancestral properties and that properties bearing CTS Nos.1747/3 and 1745/3 are in their possession and 8 enjoyment since the time of their ancestors. They denied that the plaintiffs have easementary rights over the suit property bearing CTS No.1746 as averred in plaint para 1 and that entry of easementary right is made in property card of the suit property. They also denied that the plaintiffs are exercising their easementary rights for more than 50 years without any obstruction, interruption and to the notice of defendants as well as public. The dung pit or shed are not in existence as shown in the hand sketch map by the plaintiffs and the plaintiffs be put to strict proof of the existence of property bearing CTS No.1745 as shown in their hand sketch map. Further, they denied that the outlet of waste water is in existence at point 'K' as shown by the plaintiffs in their hand sketch map and the existence of property bearing CTS No.1745 as shown in the hand sketch map by the plaintiffs is false and frivolous one and that defendant No.1 obstructed the plaintiffs in the first week of February 1987 while he had come on leave without heeding the advise of elders and the place of WXYZ of lavatory has not been shown in the hand sketch map by the plaintiffs and they are not entitled for any 9 reliefs in that regard. The plaintiffs have no right, title, interest of whatsoever nature to pass through the western portion of suit property. The plaintiffs have no easementary rights of whatsoever kind over the suit property and no question of obstruction to their easementary rights will arise. It was also denied that on 25.11.1974 defendant No.3 has executed the document on a stamp paper in favour of the plaintiffs with respect to their easementary rights. Defendant No.3 has not executed any document in favour of the plaintiffs and the one produced by the plaintiffs is false and concocted one and the signature on the said document also is not of defendant No.3. The plaintiffs are not entitled to seek declaration with respect to any kind of easementary rights in law over the suit property. Defendant No.1 has constructed septic lavatory in his property bearing CTS No.1746 after obtaining due permission from Town Municipal Council, Navalgund and the said lavatory cannot be demolished in law. Neither the plaintiffs nor defendant No.4 have obstructed in any manner at the time of construction of said lavatory and therefore the plaintiffs are not entitled for 10 mandatory injunction sought by them for demolition of latrine. The plaintiffs and defendant No.4 by colluding with each other and by taking undue advantage of military service of defendant No.1 and with a malafide intention of getting unlawful gain are threatening defendant No.2 and 3 and they have filed the present false suit to harass them. They contend that the suit filed by the plaintiffs is liable to be dismissed with exemplary costs.
6. On the basis of the pleadings of the parties, the trial court framed the following issues for consideration:
i) Does plaintiff proves that suit properties bearing CTS No.1745/1, 1747/2+1, 1756/2 are the ancestral properties and further proves that they are in actual possession and enjoyment of suit properties bearing CTS No.1747/3, 1745/3?
ii) Does plaintiffs prove that they are using western 5' space as passage and northern 5' space to pass waste and rain water and southern 5' space for storing agricultural implements and 5' space 11 around the suit property bearing CTS No.5' space around the suit property bearing CTS No.1746 for taking tap and electricity since 50 years without any obstruction and interruption?
iii) Does plaintiffs proves that defendant No.3 has executed a document on 25.11.1974 with respect to easementary right of 5' space towards the western side of suit property bearing CTS No.1746?
iv) Does plaintiffs proves the alleged
obstruction by the defendants to their
enjoyment of easementary rights as
contended in plaint para-4?
v) Does plaintiffs proves that they are
entitled for the reliefs claimed?
vi) What order or decree?
7. To substantiate their case, plaintiff No.2 and three witnesses have been examined as PW-1 to PW-4 and Ex.P.1 to Ex.P.5 have been marked on the side of plaintiffs.
Defendant No.1 and two witnesses have been examined as DW-1 to DW-3 and defendant No.4 has been examined as 12 DW-4 and the documents Ex.D.1 to Ex.D.20 have been marked on behalf of defendants.
8. The trial court after hearing the learned counsel appearing for both the parties and after perusal of the relevant materials on the file and placing reliance on the well settled principles of the Apex Court and this Court has dismissed the suit. Being aggrieved by the said judgment and decree, the plaintiffs filed an appeal in R.A.No.143/2003 on the file of the Prl. District Judge, Dharwad. The lower appellate court after going through the judgment and decree of the trial court and the material available on the file has framed the following points for consideration:
i) Whether the finding of the trial court that the plaintiffs have failed to prove that the properties bearing CTS Nos.1745/1, 1747/2+1 and 1756/2 are their ancestral properties, is illegal?
ii) Whether the finding of the trial court that plaintiffs have filed to prove that they are using western 5 ft space as passage, northern 5 ft. space to pass waste and 13 rain water, southern 5 ft space for storing agricultural implements and 5 ft space around the suit property for taking tap and electricity since fifty years without any obstruction and interruption is illegal?
iii) Whether the finding of the trial court that plaintiffs have failed to prove that defendant No.3 has executed a document on 25.11.1971 with respect to the easementary rights of 5 ft towards western side of the suit property bearing CTS No.1746, is illegal?
iv) Whether the finding of the trial court that the plaintiffs have failed to prove the alleged obstruction by the defendants to their enjoyment of the easementary rights, is illegal?
v) Whether the finding of the trial court that plaintiffs have failed to prove that they are entitled for the reliefs claimed is illegal?
9. After due re-appreciation of the oral and other material available on the file by assigning valid reasons and taking into consideration clause 3 of the agreement has 14 opined that the said document is compulsorily registerable. In spite of granting sufficient opportunity, the plaintiffs have not produced any documentary evidence to establish that they have got the easementary right over the suit property and further it is specifically held that when defendant No.1 was constructing the house, the plaintiffs did not object to the said construction and there was no obstruction by defendants to the easementary rights of the plaintiffs. Therefore, the appellate court dismissed the appeal. Being aggrieved by the impugned judgment and decree passed by the courts below, the plaintiffs/appellants have presented this appeal.
10. The appellants have contended in the memorandum of appeal that the document does not create any interest in the said land as such it is not registerable. It is also contended that the rights of the defendants is in no way affected by the said agreement since the land is in the possession of the defendants which they also enjoy. It is merely a permission given by the defendants to use it 15 without affecting the rights or interest of the defendants. The appellants have also contended that the appellate court which is the final court of fact finding, has not considered the evidence of PW-3 and PW-4. Since, PW-3 was the person who has entered into the agreement with the plaintiffs, he ought to have entered the witness box and given evidence explaining the circumstances under which this agreement was executed. The court ought to have drawn an adverse inference against the defendants. It is further contended that both the courts have not considered the material available on record and have recorded concurrent finding of facts against the appellants and the same are liable to be set aside.
11. As against this, learned counsel for the caveator/1st respondent interalia substantiated the judgment and decree passed by both the courts below, that the same are passed after due appreciation of the oral and documentary evidence available on file. He denies that the plaintiffs are exercising their easementary rights for more than 50 years without any 16 obstruction, interruption and to the notice of the defendants as well as public. He also denies that defendant No.1 obstructed the plaintiffs in the first week of February, 1987 while he had come on leave, without heeding to the advise of elders and the place of WXYZ of lavatory has not been shown in the hand sketch map by the plaintiffs and they are not entitled for any reliefs in that regard. He also submits that the plaintiffs have no right, title or interest of whatsoever nature to pass through the western portion of suit property. The plaintiffs have no easementary rights of whatsoever kind over the suit property and no question of obstruction to their easementary rights will arise. Defendant No.1 has constructed septic lavatory in his property bearing CTS No.1746 after obtaining due permission from the Town Municipal Council, Navalgund, and the said lavatory cannot be demolished in law. Neither the plaintiffs nor defendant No.4 have obstructed in any manner at the time of construction of said lavatory and therefore the plaintiffs are not entitled for mandatory injunction sought by them for demolition of lavatory. Therefore, he submits that both the 17 courts below after due appreciation of the oral and documentary evidence on the file have recorded concurrent finding of fact against the appellants and that no substantial question of law arise in this appeal. Hence, the appeal is liable to be dismissed as devoid of merits.
12. When this matter had come up for admission, the case was admitted on 13.04.2004 to consider the following substantial question of law:
"Whether an agreement creating easementary right is a compulsorily registerable document?"
13. After careful consideration of the submissions made by the parties and after going through the impugned judgment and decree passed by the courts below what emerges is that it is the claim of the plaintiffs that they have easementary right over 5 ft. space to the south of the suit schedule property to store agricultural implements and the land allotted to defendant No.4 under Ex.D.9 was allotted only for the purpose of storing agricultural implements. In 18 Commissioner's report, there is no indication that such agricultural implements are stored in the suit schedule property. There is no evidence to show that in fact such storage was made by the plaintiffs at any time. According to the plaintiffs, they have a right to take electricity and water connection through the suit schedule property in an area of 5 ft. around the suit schedule property. It is not the case of the plaintiffs that they have taken said electricity or water connection and therefore, they have easementary right over the suit schedule property. It appears as far as this right is concerned, they are mainly relying on the document Ex.P.5.
14. Before considering document Ex.P.5, the lower appellate court referred to the evidence on record to see whether the land was allotted to defendant No.3 who is the executant of Ex.P.5 according to the plaintiffs. It is the case of the defendants that since, defendant No.1 is in the army, he is unable to attend the office and he had made a request to the Government to allot the land in her favour. Therefore, 19 the land was allotted in the name of defendant No.3 who is none other than his mother.
15. Ex.D.1 is the certified copy of the application given to the Tahsildar by defendant No.1 Fakkirappa. The relevant portion of Ex.D.1 reads thus:
" I lost my father in my childhood, only aged mother is looking after the family. I told my mother to apply in court for land CTS No.1746 and the area is 200 sq. yards which is just in front of my uncle house. Being in Army, it is no possible for me to attend the Court every now and then. I suggested to my aged mother to appeal for the land in the court. She attended the court along with my uncle named N.P.KURAHATTI but they want my presence in the court.
Therefore, I request your honour that sanction may please be granted to my family to construct a house in CTS No.1746. During my leave in 1974, I will also attend the court if necessary arises."
16. The said application was forwarded to the Tahsildar by the Lieutenant, Adjutant, Officiating Officer Commanding 20 of the Army under Ex.D.2. Ex.D.3 is the order under which suit schedule property was allotted to defendant No.3. As can be seem from Ex.D.3, earlier, the said land was allotted to one M.D.Waddar by the Assistant Commissioner and on an application made by defendant No.3, the allotment made in favour of said Waddar was cancelled and the land was given to Parvatevva. It appears since defendant No.1 is in the Army, the land was allotted in the name of defendant No.3 for convenience. The said land was granted to said M.D.Waddar by an order dated 18.18.1972. It means, before the land was granted to Parvatevva, the said land was granted to M.D.Waddar. Ex.D.15 is another document which shows that the suit schedule property was granted to defendant No.4 herein on 31.07.1967. In the year 1972, the said land was granted to M.D.Waddar. It means, prior to grant of the land to defendant No.3, the said land was granted in favour of M.D.Waddar and there is no question of there being any dispute between defendant No.3 and defendant No.4 in connection with the suit schedule property. These facts are mentioned which are necessary to consider 21 whether Ex.P.5, the agreement alleged to have been executed by Parvatevva can be accepted in the evidence or not.
17. The case of the plaintiffs in this case is mainly rested on Ex.P.5. Because there is no oral and documentary evidence to show that for a required length of time, the plaintiffs were exercising their right of easement over the suit schedule property.
18. Ex.P.5, according to the plaintiffs not only confirms their right but also recognizes the fact that they have been exercising the right of way and other rights over the suit schedule property.
19. The counsel who represented the plaintiffs contended in the evidence that, PW-1 has not denied the execution of Ex.P.5 by defendant No.3. But he has only pleaded ignorance. Defendant No.3 who is executant has not been examined before the court and hence, an adverse inference has to be drawn against the defendants. 22
20. As can be seen from the evidence of defendants which is elicited in the cross-examination, defendant No.3 is an illiterate old lady. It appears her eye sight is not good. However, the burden was on the plaintiffs to prove the said document.
21. To prove Ex.P.5, PW-2 is examined by the plaintiffs. Plaintiff No.1, plaintiff No.2 and defendant No.4 are all stamp vendors. Defendant No.1 at the relevant time, when it is alleged that the document is executed, was in the Army. It appears at the relevant time, only defendant No.3 was residing at Navalgund. Certain corrections and over writings are made in Ex.P.5. It is submitted that the right created under Ex.P.5 is a restricting covenant and therefore incapable of valuation. Therefore, the registration of this document is not necessary.
22. It is significant to note that clause 3 of the agreement, Ex.P.5 reads thus:
23
"¤ªÀÄä UÀ¼Éà ¸ÁªÀiÁ£ÀÄ ªÀ ZÀPÀÌr ©qÀ°PÉÌ gÀ¸ÉÛ ¸ÀtÚ¢zÀÄÝ £À£Àß 1746 gÀ zÀQët ¨sÁUÀzÀ 5 ¥üÆlÄ eÁUÉAiÀÄ°è £Á£ÀÄ ªÀÄ£É PÀlÄÖªÀ ¥Àæ¸ÀAUÀ §AzÀ°è 5 ¥üÆlÄ eÁUÉ ¤ªÀÄUÉ ©lÄÖPÉÆnÖzÉÝÃö£É. CzÀgÀ°è ¤ªÀÄä ZÀPÀÌr ©qÀ°PÉÌ £À£ÀßzÁUÀ° ªÀ £À£Àß ªÀA±ÀdgÁUÀ° AiÀiÁªÀÅzÉà vÀgÀzÀ vÀAmÉ ªÀ vÀPÀgÁgÀÄ ªÀUÉÊgÀöÊ ¤ªÀÄä PÀÆqÀ ªÀiÁqÀĪÀÅ¢®è."
23. If this recital is considered, it shows that 5' space is given to the plaintiffs and the same is capable of valuation. Therefore, by Ex.P.5, it is not only easementary rights that are given but the said entire space of 5 feet on the southern side is given to the plaintiffs. In view of this fact, the lower appellate court has rightly held that this document was compulsorily registerable.
24. Therefore, if the rights mentioned in Ex.P.5 are enforced, the suit schedule property becomes unfit for defendant Nos.1 to 3 to use the same.
25. The plaintiffs are claiming right of easement to take electricity and tap connection through an area of 5 ft. along the border of the suit schedule property. It is not the case of the plaintiffs that they have exercised this right by taking electricity and water connection, and when they have not 24 exercised this right at any time, much less within the prescribed period to acquire the right, there is no question of they having any easementary right for the same.
26. It is significant to note that defendant No.1 after obtaining necessary permission from the Town Municipal Council of Navalgund has constructed a house and also a lavatory on the suit schedule property and at that time, plaintiffs did not object for the said construction. When the plaintiffs have no right, there is no question of anybody obstructing their easementary rights. The conduct of the plaintiffs in keeping quiet while defendant No.1 was constructing a house and lavatory also shows that there was no obstruction by defendant No.1. Therefore, the lower appellate court has rightly held that the trial court was justified in coming to the conclusion that there was no obstruction by defendants to the easementary rights of the plaintiffs and also holding that the plaintiffs are not entitled for the reliefs claimed in the suit. The said reasoning is well founded and well reasoned. Both the courts below after due 25 appreciation of the evidence taking into consideration oral and documentary evidence available on the file have recorded concurrent finding of fact. The appellants have not made out any ground to interfere with the impugned judgment and decree passed by both the courts below. Therefore, the appeal is dismissed as devoid of merits. There is no substantial question of law as such involved in this appeal. Ordered accordingly.
SD/-
JUDGE Jm/-