Karnataka High Court
Bhangarewwa S/O Tippanna Ganager vs Ismail And Ors on 3 June, 2024
-1-
NC: 2024:KHC-K:3536
RSA No. 200244 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200244 OF 2017
(DEC/INJ)
BETWEEN:
BHANGAREWWA S/O TIPPANNA GANAGER
AGE:49 YEARS, OCC: AGRICULTURE,
R/O: CHADACHAN, TQ: INDI,
DIST: VIJAYAPUR.
...APPELLANT
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
1. ISMAIL S/O AMEENSAB TAPAL
SINCE DECEASED BY LR'S.
Digitally signed
by SUMITRA
SHERIGAR
Location: High
1A. SHERALI S/O ISMAIL TAPAL
Court of AGE: MAJOR, OCC: AGRICULTURE,
Karnataka
1B. SHAKEEL AHMED S/O ISMAIL TAPAL
AGE: MAJOR, OCC: AGRICULTURE,
1C. AMEENSAB S/O ISMAIL TAPAL
AGE: MAJOR, OCC: AGRICULTURE,,
1D. LAILABI W/O RUKMUDDIN MULLA
AGE: MAJOR, OCC: HOUSEHOLD WORK,
1E. YASEEN D/O ISMAIL TAPAL
AGE: MAJOR, OCC: AGRICULTURE,
-2-
NC: 2024:KHC-K:3536
RSA No. 200244 of 2017
1F. HASHIM S/O ISMAIL TAPAL
AGE: MAJOR, OCC: AGRICULTURE,
ALL ARE R/O: WARD NO.3, CHADACHAN,
TQ: CHADACHAN, DIST: VIJAYAPUR.
2. SARIKHA @ VITABAI W/O SHIVAJI JADHAV
AGE: MAJOR, OCC: AGRICULTURE,
R/O: C/O GOPAL, S/O SHIVAJI JAHAV,
NEAR MARATHA SCHOOL,
AT:POST:DIGRAJE KASBA,
DIST: SANGLI-416305.
(MAHARASHTRA STATE)
3. GEETA W/O KHANDU POLA
AGE: 27 YEARS, OCC: H H WORK,
R/O: C/O GOPAL, S/O SHIVAJI JADHAV,
NEAR MARATHA SCHOOL,
AT: POST:DIGRAJE, KASBA,
DIST: SANGLI-416305.
(MAHARASHTRA STATE)
...RESPONDENTS
(BY SRI DESHPANDE G.V., ADV. FOR R1(A) TO (F), R2 AND R3)
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET-
ASIDE THE JUDGMENT AND DECREE DATED 27.08.2016
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC INDI,
ALLOWING R.A.NO.12/2016 AND RESTORE THE JUDGMENT
AND DECREE DATED 05.01.2016 PASSED BY CIVIL JUDGE AND
JMFC INDI IN SUIT O.S. NO.289/2008, AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-K:3536
RSA No. 200244 of 2017
JUDGMENT
The plaintiff is in the second appeal assailing the judgment and decree in R.A.No.12/2016 dated 27.08.2016, on the file of the Senior Civil Judge and JMFC, Indi, reversing the judgment and decree in O.S. No.289/2008 dated 05.01.2016, on the file of the Civil Judge and JMFC, Indi, whereby, suit seeking declaration of an easement of prescription was dismissed by the First Appellate Court.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. Plaintiff instituted suit for declaration that the plaintiff has perfected right over the suit 'CD way' by way of easement of prescription, which is situated in B.L. Nos. 25 and 26 of Chadachan, Village. The plaintiff avers that the plaintiff is the owner of the land bearing B.L. No.27, measuring 19 acres, 20 guntas, along with her brother and -4- NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 sisters and defendant No.1 is the owner of the land bearing B.L. No.26/1A, measuring 2 acres, 26 guntas, B.L. No.26/1C measuring 3 acres 20 guntas and B.L. No.26/2 measuring 8 acres, 11 guntas and defendant No.2 is the owner of the land bearing B.L.No.25 measuring 4 acres 30 guntas of Chadachan Village, Indi Taluk, Bijapur District. It is averred that plaintiff reaches her land from government Chadachan to Havinal Road at point 'C and cross D' and enters their land, in the land of both defendants. Point C to D is the cart way to reach the plaintiff's land and there is no alternative way, except this cart way. Plaintiff further avers that since 100 years ago, the plaintiff, her father and predecessor are/were entitled to use and enjoyment of this way from time immemorial. The 'CD cart' is the suit way and has been used by the plaintiff without obstruction for more than 20 years, and this fact is well known to the defendants as well as the public at large of the village, and that the plaintiff has perfected right over the suit way by way of easement of prescription.
-5-
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017
4. Pursuant to the suit summons issued by the Trial Court, defendant No.2 appeared and filed his written statement, admitted the ownership of the plaintiff, but denied that the plaintiff reaches her land from the government, Chadachan-Havinal Road at point 'C and cross D', enters the lands of both defendants. The defendant specifically denied that there is a road existing between the two defendants' lands, survey Nos.25 and 26 of Chadachan village and about any cart way in the property to reach the land of the plaintiff, defendant No.2 denied that since 100 years back, the plaintiff's father and predecessor were used to and enjoyed this way from time immemorial.
5. The Trial Court, on basis of the pleadings, framed the following issues:
"1. Whether the plaintiff proves the existence of the suit CD cart way?-6-
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017
2. Whether the plaintiff further proves that, they been making use of suit CD way to reach her land since time of her ancestors and enjoying the way since time immemorial and perfected the right over the suit way by way of easement of prescription?
3. Whether the plaintiff further proves that, the defendants are causing obstruction to her use and enjoyment of suit CD cart way?
4. Whether defendants prove that, the plaintiff is using alternative way through Havinal road for reaching her land ?
5. Whether the plaintiff is entitled for the relief of declaration and injunction as sought for?
6. What order or decree?"
6. In order to substantiate the claim, plaintiff examined herself as P.W.1 and got marked documents at Exs.P.1 to P.6. On the other hand, defendant No.2 (B) examined herself as DW1 and two witnesses as D.Ws.2 and 3 and got marked documents at Exs.D.1 to D.5. -7-
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017
7. The Trial Court, on basis of the pleadings, oral and documentary evidence, held that:
i. Plaintiff proved the existence of the suit 'CD' cart way.
ii. Plaintiff has been making use of the suit 'CD' way to reach her land since the time of her ancestors and enjoying the way since time immemorial and perfected the right over the suit way by way of easement of prescription.
iii. Plaintiff proves that the defendants are obstructing to her use and enjoyment of suit 'CD' cart way.
iv. Defendants have failed to prove that the plaintiff is using alternative way through Havinal road for reaching her land.
And by judgment and decree, the Trial Court decreed the suit of the plaintiff, declaring that the plaintiff has -8- NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 perfected her right over the suit 'CD' cart way situated in the land of the defendants and restrained the defendants and anybody claiming through them permanently from causing any type of obstruction to the plaintiff's use and enjoyment of the suit cart way.
8. Being aggrieved, defendants preferred appeal before the First Appellate Court.
9. The First Appellate Court, while re-appreciating the entire oral and documentary evidence, deferred with the judgment and decree of the Trial Court and held that the plaintiff has failed to establish with regard to the existence of the 'CD' cart road and there was an alternative way for the plaintiff to reach her land and there is a road from Chadachan to Havinal and by the judgment and decree, allowed the appeal of the defendants, set aside the judgment and decree of the Trial Court and decreed the suit of the plaintiff.
-9-
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017
10. Aggrieved by the reversal of the judgment and decree of the First Appellate Court, the present appeal is filed by the plaintiff.
11. Heard Sri D.P. Ambekar, the learned counsel for the appellants and Sri. Deshpande G.V., the learned counsel for the Respondents.
12. Learned counsel appearing for the appellant would contend that the First Appellate Court, while reversing the judgment of the Trial Court, has grossly misread the admissions of D.Ws. 1 to 3 and only relied upon the report of the Court Commissioner to reverse the findings of the Trial Court. Learned counsel would submit that the ingredients necessary for the grant of easement of prescription have been established by the plaintiff and the plaintiff was entitled for the decree in her favour by the Appellate Court that, in a suit for prescriptive easementry right of way, the existence or non-existence of
- 10 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 an alternative way to reach the dominant heritage is irrelevant. Learned counsel takes this Court to the admission of D.W.1 to contend that D.W.1 is not having the aright of Dominant heritage, D.W 1 in his cross examination has categorically stated that even if there is no alternative way, the defendants are not ready to provide any way from the land of the defendants.
13. Per contra, learned counsel appearing for the respondents-defendants would justify the judgment and decree of the First Appellate Court and contend that the way shown by the plaintiff is not in existence, the Court Commissioner report categorically evidence the said fact and the First Appellate Court has rightly considered the evidence of D.Ws.1 to 3, the evidence of Court Commissioner and the Court Commissioner report and has arrived at a conclusion that the plaintiff has not acquired the right of prescription over the suit land to reach her property and would contend that the findings of fact
- 11 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 recorded by the First Appellate Court being the last-fact finding Court does not warrant any interference under section 100 CPC.
14. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the judgment and decree of the Courts below including original record.
15. At the cost of repetition, it is necessary to reiterate the facts, the plaintiff is seeking relief of declaration that she has a right of easement of prescription over the suit 'CD' which is situated in B.L. Nos.25 and 26 to reach the plaintiff's land in B.L. No.27 and that there is no alternative way except this way. The averments made out in the plaint at para Nos.4 and 5 reads as under:
- 12 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017
4. The Plaintiff reaches to his land from Government Chadachan to Havinal road at point C and cross D and enters in their land in the land of both defendants. One cart tract is existing in the land of Defendant No.1 and another cart track is existing in the defendant No.1 as shown in the plaint hand sketch. Point C to D is cart way to reach the plaintiff to her land. There is no any alternative way except this way. Since from 100 years back the plaintiff, his father and predecessors in title are/were use and enjoyment of this way from time immemorial. This cart way well trodden cart way to reach the land of the plaintiff. The CD cart way shown in the plaint hand sketch is hereinafter referred to as "suit way" in this plaint. The Plaintiff has produced hand sketch which show the correct picture of the CD cart way. Same is part and partial of this plaint.
5. The said cartway is used by the plaintiff without obstruction more than 20 years and this facts is well known to the defendants as well as public at large of the village. No body have obstructed till today to use and enjoyment of the said way. Hence the plaintiff have perfected right over the suit way by way of easement of prescriptions. Hence the plaintiff has right over the suit way.
- 13 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017
16. The suit laid down by the plaintiff against the defendants seeks to enforce an easementry right of the way 'CD', which admittedly passes through the defendants' property. The perusal of the pleadings of the plaintiff would indicate that the plaintiff claims that point 'C to D' is a cart way to reach her land through the property of the defendants and that there is no alternative way except this way, and this cart way has been used since 100 years ago and without obstruction for more than 20 years to the knowledge of the Respondents and public at large.
17. The plaintiff claimed in her plaint stating that she has got prescriptive right and by way of necessity. Easement of prescription and easement of necessity are mutually contradictory and destructive, on the said ground itself, the plaintiff's suit has to fail, even otherwise, the material on record revealed that the Court commissioner appointed before the Trial Court has categorically stated in
- 14 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 his report that: "¥ÀæwªÁ¢AiÀÄgÀ d«ÄãÀÄUÀ¼À ¸À.£ÀA.25 ªÀÄvÀÄÛ 26 gÀ £ÀqÀÄªÉ AiÀĪÀÅzÉà UÁr ºÁ¢ EgÀĪÀÅ¢®è. ¥ÀæwªÁ¢AiÀÄgÀ d«ÄãÀÄUÀ¼À £ÀqÀÄªÉ AiÀiÁªÀÅzÉà ºÀ½AiÀÄ UÁr ºÁ¢ EgÀĪÀ¢®è. ªÁ¢AiÀÄÄ ¥ÀæwªÁ¢-2 EªÀgÉƧâgÀ d«ÄãÀzÀ°è ºÁzÀÄ vÀ£Àß d«ÄäUÉ ºÉÆÃUÀ®Ä G¥ÀAiÉÆÃV¸ÀÄvÁÛ¼É". Ex.P1 is the village map, the plaintiff relied in respect of the land bearing survey No.27. The Ex.P1 does not reflect the cart way but a government road "Hj¤AzÀ gÀ¸ÉÛAiÀÄÄ ºÁ«£Á¼ÀPÉÌ zÁj" The road stated in Ex.P.1 is also clear from the Commissioner's report which indicates the very road. The Trial Court failed to appreciate Ex.P.1 and the Commissioner report, which made the Trial Court arrive at a wrong conclusion about the existence of the 'CD' cart way.
18. Section 15 of the Indian Easements Act 1882 ('the Act' for short) deals with prescriptive easements, which states that as a right relating to access and use of light or air and for any building having been peacefully enjoyed by any person claiming title thereto, as of right
- 15 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 without interruption for 25 years. The right of way of easement of prescription can be provided, if the plaintiff was able to establish that he or she has acquired the right of prescription by proving the ingredients provided under Section 15 of the Act. In order to get a decree of declaration for easement of prescription, the plaintiff must prove that:
i. There must be pre-existing easement which must have been enjoyed by the dominant owner;
ii. The enjoyment must have been peaceable;
iii. The enjoyment must have been as an easement;
iv. The enjoyment must have been as of right;
v. The right must have been enjoyed openly;
vi. The enjoyment must have been for a period of 20 years;
- 16 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 vii. The enjoyment for 20 years must have been without interruption.
19. Under Section 15 of the Act, uninterrupted use of 20 years peacefully and openly is the ingredient which has to be proved by the party. There is no evidence to hold that the plaintiff is using the 'CD' cart as a right for a continuous period of 20 years against the interest of the true owner. In the absence of any such evidence to prove the necessary ingredient as enumerated under Section 15 of the Act, the plaintiff cannot claim the easement of prescription.
20. The Apex Court, in the case of Bachhaj Nahar v. Nilima Mandal1, has held at paragraph No.14 as under:
"14. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of 1 AIR 2009 SC 1103
- 17 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 drainage, right to a water course, etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have to plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an 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 peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two 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 the defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the
- 18 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 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. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence."
21. The plaintiff has to plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property. The pleadings are necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant.
22. The report of the Court Commissioner corroborating with the evidence of the Court Commissioner and the evidence of the parties, it cannot be held that the plaintiff has been using and enjoying any existing
- 19 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 easement as a right of easement for more than 20 years openly, peacefully and without any interruption as such. The Court Commissioner has categorically stated that there is no way or any cart way in between survey Nos.25 and 26, on the other hand, the Court Commissioner report goes to show that the plaintiff has an alternative way as stated supra. The relief of declaration by way of easement of prescription or easement of necessary is such a right which is on some others property and the existence of the pathway cannot be by a matter of right.
23. The First Appellate Court, while reversing the judgment and decree of the Trial Court, has rightly considered the Commissioner's report and the evidence of the parties to arrive at a conclusion that the plaintiff has failed to establish his right to the 'CD' way, existence of the 'CD' way and the 'CD' way being used for more than 20 years and accordingly, for the reason stated supra, this Court is of the considered view that the First Appellate
- 20 -
NC: 2024:KHC-K:3536 RSA No. 200244 of 2017 Court was justified in dismissing the suit of the plaintiff seeking right over the suit 'CD' way by way of easement of prescription and the same does not warrant any interference and no substantial question of law arises for consideration.
24. In the result, this Court pass the following:
ORDER i. The Regular Second Appeal is hereby dismissed.
ii. Impugned judgment and decree of the First Appellate Court stands confirmed.
Sd/-
JUDGE SBS List No.: 1 Sl No.: 36 CT: VD