Karnataka High Court
Smt Padma vs Sri Ananda on 30 October, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:38477
RFA No. 1441 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1441 OF 2006 (DEC)
BETWEEN:
SMT. PADMA,
W/O SRI. DAKSHINAMURTHY,
AGED ABOUT 31 YEARS,
R/AT NO.441, 6TH MAIN ROAD,
MOTAPPANAPALYA,
INDIRANAGAR POST,
BANGALORE - 560 038.
...APPELLANT
(BY SRI. S. RAJASHEKHAR, ADVOCATE)
AND:
1. SRI. ANANDA,
MAJOR,
Digitally signed by SINCE DECEASED REPRESENTED BY
R MANJUNATHA
Location: HIGH
COURT OF 1(A). RAMESH,
KARNATAKA
AGED ABOUT 34 YEARS,
S/O ANANDA,
R/AT NO.411, HASB KHATHA NO.970/411,
MOTAPPANAPALYA,
K.R.PURAM HOBLI,
BANGALORE SOUTH TALUK.
1(B). MANJUNATH,
AGED ABOUT 30 YEARS,
S/O ANANDA,
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NC: 2023:KHC:38477
RFA No. 1441 of 2006
R/AT NO.411, HASB, KHATHA NO.970/411,
MOTAPPANAPALYA,
K.R.PURAM HOBLI,
BANGALORE SOUTH TALUK.
2. SRI. LAKSHMANA,
AGED MAJOR,
S/O LATE RAMAIAH,
R/AT NO.411, H.A.S.B. KHATHA NO.970/411,
MOTAPPANAPALYA,
K.R.PURAM HOBLI,
BANGALORE SOUTH TQ.
3. SRI. THYAGARAJ,
AGED MAJOR,
S/O LATE RAMAIAH,
R/AT NO.411, H.A.S.B. KHATHA NO.970/411,
MOTAPPANAPALYA,
K.R.PURAM HOBLI,
BANGALORE SOUTH TQ.
...RESPONDENTS
(BY SRI. P.B. RAJU, ADVOCATE FOR R1(A) AND R1(B), R2 AND
R3;)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED: 06.04.2006 PASSED IN
O.S.NO.3506/1995 ON THE FILE OF THE XXIV ADDL.CITY CIVIL
JUDGE, BANGALORE (CCH.NO.6), DECREEING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1441 of 2006
JUDGMENT
Heard Sri. Rajashekhar, learned counsel for the appellant and Sri. P.B.Raju, learned counsel for respondents.
2. The defendant in O.S.No.3506/1995 has preferred this appeal challenging the validity of the judgment and decree dated 06.04.2006 passed in the said suit on the file of XXIV Additional City Civil Judge, Bangalore City (CCH-6).
3. Parties are referred to as plaintiffs and defendant for the sake of convenience as per their original ranking in the Court below.
4. Plaintiffs filed a suit on 02.06.1995 seeking a declaration that they have right to use the passage having a width of 5 feet and a length of 40 feet, lying on the eastern side of the plaintiffs' property bearing No.411, HASB Khata No.970/411 situated at Motapanapalya, K.R Puram Hobli, Bangalore South Taluk and also an order of permanent injunction restraining the defendant and her henchmen from interfering with the usage of said passage to reach the road on northern side and restraining them from putting up any structure in the said passage.
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5. It is further contended in the plaint that the property bearing No.411, HASB Khata No.970/411 situated at Mottapanapalya, Bangalore was purchased by the plaintiffs' mother Smt.Muniyamma from its previous owner, Sri.T.Krishna Reddy in the year 1976. Sri.T.Krishna Reddy delivered possession of the property in favour of Smt.Muniyamma by executing a Sale Agreement on 12.05.1979 and also a General Power of Attorney executed on 06.08.1991 coupled with an affidavit dated 06.08.1991 on account of the fact that the Prevention of Fragmentation and Consolidation of Holdings Act, 1965, was in force.
6. At the time of said transaction, there was a ban on registering the revenue site in view of the aforesaid Act and therefore, such an arrangement was entered into by Smt.Muniyamma with Sri.T.Krishna Reddy, who is the erstwhile owner of the property.
7. It is further contended that the property purchased by the plaintiffs consisted of three tenements. There existed a passage running north to south and to the east of the said property. On the eastern side of the said passage, the property of the defendant is situated. The defendant started putting up a -5- NC: 2023:KHC:38477 RFA No. 1441 of 2006 structure in the said passage somewhere in the month of June, 1995 whereby the plaintiffs objected to the same. Since the defendant did not yield to the request made by the plaintiffs, the necessity arose to file the suit.
8. Upon service of the suit summons, the defendant entered appearance and a written statement came to be filed on 14.09.1995, wherein it is pleaded that the defendant is the owner of the property bearing Khata No.445 measuring 20 feet east to west and 20 feet north to south in Motappanapalya, having purchased the same from Smt.Muniyamma. She further pleaded that Smt. Muniyamma W/o. Chinnaiah executed a Sale Agreement on 22.09.1980 in favour of Smt.Akkamma and the possession was handed over on the same day. Thereafter, Smt.Muniyamma executed a registered sale deed in favour of Smt.Akkamma. Smt.Akkamma in turn sold the property in favour of Sri.Khurshid by way of a registered sale deed. Sri.Khurshid in turn sold the property in favour of the defendant under a registered Sale Deed dated 25.03.1994 for valuable consideration and parted with possession. -6-
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9. According to the defendant, the property sold by Sri.Khurshid in her favour consisted of a site measuring 20 feet x 20 feet with one square house constructed therein. Thereafter, the defendant is in enjoyment of the said property.
10. There was an amendment to the plaint after the written statement came to be filed by incorporating the prayer for the declaration.
11. Based on the rival contentions of the parties, the following issues and additional issues were framed by the Trial Court:
1. "Whether the plaintiffs prove their exclusive and lawful possession and enjoyment of suit property, particularly, including passage of 5' x 40' as referred to in the plaint?
2. Whether plaintiffs prove that they have been exclusively using the suit passage right from the date of acquisition of suit property?
3. Do plaintiffs prove interference and cause of action?
4. Are Plaintiffs entitled to the relief of injunction as sought for?
5. What decree or order?
6. Whether the plaintiffs are entitled for relief of declaration as sought for?-7-
NC: 2023:KHC:38477 RFA No. 1441 of 2006
7. Does the defendant prove that the suit is not at all maintainable?
8. Does the defendant prove that the prayer seeking for declaration of title to the 5' passage is an after thought?
9. Does the defendant prove that the plaintiff has not paid the proper court fee?
10.Does the defendant prove that the suit is barred by limitation?
11.Does defendant prove that the plaintiff has no exclusive rights with regard to the passage?
12.Does defendant prove that she is having exclusive rights on the 4' of passage and not 5' of passage?
12. In order to prove the case of plaintiffs, the first plaintiff was examined as P.W.1 and Sri.Venkataramanappa was examined as P.W.2. Sixteen documents were relied upon on behalf of plaintiffs to establish their case, which were exhibited and marked as Ex.P1 to Ex.P16 comprising of an Agreement of Sale, General Power of Attorney, Affidavit, Assessment Extract, Sale Deed, Khata Assessment Extract and Khata endorsement issued by H.A.Sanitary Board, tax paid receipts, encumbrance certificate and rough sketch.
13. As against the oral and documentary evidence placed on record by plaintiffs, defendant got examined herself -8- NC: 2023:KHC:38477 RFA No. 1441 of 2006 as D.W.1 and she has relied upon 11 documents which were exhibited and marked as Ex.D1 to Ex.D11 comprising of Sale Deed dated 14.11.78, Sale Deed dated 22.09.80, Assessment List, encumbrance certificate, Sale deed dated 25.09.90, Khata issued by H.A.Sanitary Board in favour of Khursheed, tax paid receipt, Sale Deed dated 25.03.94, Katha certificate, assessment extract and tax paid receipts.
14. Thereafter, learned Trial Judge heard the parties in detail and after considering the oral and documentary evidence on record placed by the parties in a cumulative manner, decreed the suit of the plaintiffs.
15. Being aggrieved by the same, the defendant has preferred the present appeal on the following grounds:
a) "It is submitted that to the Northern side of the Plaintiffs property a road is situated as such the Plaintiffs are having direct access from the road to their property on the Northern side. Such being the facts in para 5 of the plaint the Plaintiffs have pleaded that "that the passage is the only ingress and egress to their property......." With these pleadings, the plaintiffs have sought Judgment and Decree to declare that the 5ft passage on the Eastern side of the property, is an easement of necessity.
Whereas, the fact remains that the Northern side of the Plaintiffs property faces the Main Road. The Plaintiffs are having access to their property on the -9- NC: 2023:KHC:38477 RFA No. 1441 of 2006 Northern side. Facts being thus the Plaintiffs have falsely pleaded that 5ft passage situated on Eastern side of their property is the only source of ingress and egress to their property and have sought the user of the said passage as an easement of necessity. It is submitted that when the Plaintiffs are having access to their property on the Northern side, question of seeking the relief of an easement of necessity does not arise. The easement of necessity could be granted in matters where the dominant heritage, is landlocked without any access on any side. Admittedly the plaintiffs are having access to their property on the Northern side. The trial court has completely lost sight of this aspect of the matter and erred in decreeing the suit of the plaintiffs by granting the relief of Declaration. Under these circumstances, it is submitted that the Decree granted by the trial court, as far as the releif for Declaration is concerned, is illegal, arbitrary and oppose to the principles of Easement as contemplated under Sections 13 and 14 of The Indian Easement Act, 1882. As such the Judgment and Decree passed by the trial court requires to be set aside.
b) The Trial court completely lost sight of the fact that the defendant's property is situated on the rear side, without any access to the Main Road, except the 4ft passage. By completely ignoring this aspect of the matter, the Trial court erred in decreeing the suit of the Plaintiffs. It is appropriate to submit that except this passage, the defendant has no access/entry to her property. As such, the aforesaid passage is an easement of necessity to the defendant as against the plaintiffs. The Trial court has completely failed to appreciate this crucial aspect of the matter, and as such the Judgement and Decree of the Trial court, calls for intereference by this Hon'ble court.
c) It is submitted that the defendant and her vendors, eversince 1978 on making use of the aforesaid passage for ingress and egress to their property. Facts
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NC: 2023:KHC:38477 RFA No. 1441 of 2006 being thus, the plaintiffs have averred that they are in possession and enjoyment of the aforesaid passage. The Trial court, without applying its mind to the facts of the case has blindly accepted this version of the plaintiffs and has decreed the suit. As such, the decree passed by the trial court is not consistent with the facts of the case and the same require to the set aside by this Hon'ble court.
d) It is the case of the plaintiffs that the passage in question is the only ingress and agress to their property, and as such they have sought the relief of Declaration that the said passage is an easement of necessity. It is relevant to consider that the aforesaid passage belongs to Sri Krishna Reddy, and the said Sri Krishna Reddy has provided access to the defendant's property through the said passage. If at all the plaintiffs intend to seek declaration over the said passage in any manner whatsoever, it was incumbent on the plaintiffs to seek the said declaratory relief against the true owner i.e., Sri Krishna Reddy. Whereas, in the present suit, the said Krishna Reddy is not arrayed as party to the proceedings. In the absence of Sri Krishna Reddy, b the above suit is bad of non-joinder of necessary parties. The 0x Trial court has completely ignored this fundamental concept, and erred in granting declaratory relief to the plaintiffs. As such the judgement and Decree of the Trial court, calls for intereference by this Hon'ble court.
e) It is relevant to submit that the defendant's land is the dominant heritage and the said passage is the servient heritage i.e., the defendant is the dominant owner and Sri Krishna Reddy is the servient owner of their respective lands, as under the law of Easement. This defendant herself is a person who is making use of the said passage as an easment of necessity to her property for the purpose of ingress and agress. Whereas, the said right i.e., easment of necessity is totally unavailable to the plaintiffs, for they they have access from the northern side to the rond. If the
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NC: 2023:KHC:38477 RFA No. 1441 of 2006 plaintiffs are interested to make use of the said passage, it was incumbent on the plaintiffs to seek declaration of their alleged right of relevant easement by seeking declaratory relief, if they are entitled under the law, against the servient heritage/servient owner. In the absence of such a proceeding. the plaintiffs are not entitled for any declaratory reliefs over the aforesaid passage, that too in a suit filed against this defendant, who is only a person who is making use of the said passage. The Trial court has completely ignored this fundamental requirement of law, and has decreed the suit, which calls for intereference by this Hon'ble court.
f) It is respectfully submitted that this defendant is owner and in possession of property bearing No. 445 to an extent of 20 X 20 ft. This defendant has not encroached any other land, as alleged. Whereas, it is the plaintiffs, it is who after obtaining Sale Deed in the year 1994, have encroached two feet of land in the said passage. In lieu of the said encroachment, the width of the said passage is decreased by 2 ft. As of now, the width of the passage is approximately 2 ft. X 40 ft. The plaintiffs, with an intention to cover up their latches have made false averment before the Trial court, that the defendant is making an attempt to encroach the passage and is making attempt to put construction on the passage. The Trial court, failed to disbelieve this false version of the plaintiffs. Even assuming for the sake of arguments, if any construction is made on the passage, the same is detrimental to the interest of the defendant rather than the plaintiffs. The Trial court failed to appreciate and understand the facts existing at the spot and the make believe versions of the plaintiffs, and erred in granting the decree to the respondents herein. By this inconsistent and incorrect approach, in considering the respective contentions of the parties, the Trial erred in decreeing the suit, which requires to be set-aside by this Hon'ble court.
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g) It is relevant to submit that the Trial court failed to take note of the unfair conduct of the plaintiffs in tampering with the documents. Sri Krishna Reddy executed G.P.A and Affidavit in favour of the mother of the plaintiffs. In the said G.P.A. and affidavit, the defendants have tampered with the schedule. On eastern side of property no. 441, Sri Krishna Reddy had not stated 5 ft. passage in the aforesaid G.P.A. and affidavit. But, the plaintiffs herein and their mother, have effected correction by striking out the eastern boundary and have inserted the word "5 ft. passage "in the affidavit and G.P.A. After tampering with the G.P.A. & affidavit, the plaintiffs, in the Sale Deed dated 19/11/1994 executed by plaintiffs mother in favour of the plaintiffs, have stated eastern boundary as 05 ft. passage. Though this aspect of the matter was brought to the notice of the Trial court, the same is completely ignored by the Trial court. The Trial ought to have drawn adverse inference against the plaintiffs, and inititated necessary action against them. Instead the Trial court has decreed the suit, awarding them costs of the suit. As such the Judgement and Decree passed by the Trial court requires to be set-aside by this Hon'ble court.
h) It is submitted that if the aforesaid facts and position of law is appropriately appreciated, the Trial court ought to have dismissed the suit with costs. But, the Trial court, by adopting erroneous and inconsistent approach has decreed the suit with costs, which is patently illegal and opposed to principles of law, which requires to be set-aside by this Hon'ble court, by setting aside the Judgement and Decree of the Trial court, and by dismissing the suit.
i) Viewed from any angle, it is abundantly clear that the Judgement and Decree passed by the Trial court is illegal, arbitrary, erroneous and opposed to facts and circumstances of the case, and the same requires to be set-aside. It is further submitted tha this appellant
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NC: 2023:KHC:38477 RFA No. 1441 of 2006 may kindly be permitted to urge such other grounds at later stage."
16. Reiterating the grounds urged in the appeal memorandum, Sri.S.Rajashekar, learned counsel for the appellant vehemently contended that the passage is said to have existed in between the property of the plaintiffs and defendant, is not a common passage. The passage exclusively belongs to the defendant and the same does not have a width of five feet as contended.
17. He also brought to the notice of the Court that this Court had appointed a Court Commissioner to visit the place to measure the exact width of the passage and the Court Commissioner, having visited the spot, found out that there exists a passage having a width of 3 feet 9 inches and a length of 40 feet on the eastern side of the property of the plaintiffs, which falls to the western side of the property of the defendant. Therefore, decreeing of suit of plaintiffs, is incorrect and sought for allowing the appeal by passing appropriate and suitable orders.
18. He further pointed out that the defendant is not interested in putting up any construction and therefore, passing an order of injunction against the defendant is a surplusage on
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NC: 2023:KHC:38477 RFA No. 1441 of 2006 record and sought for modification of decree passed by the learned Trial Judge.
19. He also pointed out that the very title of property of plaintiffs is not established by placing cogent and convincing evidence on record and therefore sought for allowing the appeal.
20. Per Contra, Sri.P.B.Raju, learned counsel representing respondents/plaintiffs contended that eventhough there was 5 feet passage that was mentioned in the agreement of sale entered into by Smt.Muniyamma with Sri.T.Krishna Reddy, it is the defendant, who was encroached upon the portion of the common passage whereby the width of common passage has been reduced.
21. He further argued that the constructed portion available at the spot belonging to the plaintiffs would go to show that they have already lost 1½ feet in their property, which is the subject matter of sale agreement between Sri.Krishna Reddy and Smt.Muniyamma, which ultimately resulted in executing sale deed in favour of plaintiffs and therefore, sought for dismissal of the appeal.
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22. In view of the rival contentions of the parties, the following points arise for consideration:
1) Whether the plaintiffs have successfully established that there exists a passage of 5 feet on the Eastern side of the property of plaintiffs and it is the common passage, as such, the defendant has no right whatsoever, to put up the construction thereon?
2) Whether the impugned judgment is suffering from any legal infirmity and perversity or thus, calls for interference?
3) What order?
RE.POINT NOS.1 & 2:
23. In the case on hand, there is no dispute that plaintiffs and defendant are claiming ownership over their respective properties. However, defendant tried to establish before the Court that plaintiffs have no title in respect of the property, which is in their occupation. But the material on record would go to show that the property earlier belonged to Sri T. Krishna Reddy and later on, he entered into an agreement with the mother of plaintiffs, namely Smt.Muniyamma as there was a bar to register revenue sites in view of the Prevention of Fragmentation and Consolidation of Holdings Act, 1965, was in force. As such, a Power of Attorney
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NC: 2023:KHC:38477 RFA No. 1441 of 2006 executed by Sri.T.Krishna Reddy and an affidavit putting Smt.Muniyamma into the possession of the property. After the ban was lifted, by repealing the said Act, a registered Sale Deed came to be executed by Smt.Muniyamma in favour of plaintiffs, whereby, the plaintiffs claim that the owner of the property in occupation. Taking advantage of the fact that the eastern boundary is referred to as common passage with 5 feet width, the plaintiffs have approached the Court seeking declaration that the passage is a common passage and defendant has no right to put up the construction.
24. The width of the passage was in serious dispute. The defendant has claimed her exclusive right over the suit property by virtue of a Sale Deed executed in her favour. Defendant has traced her title to the suit property from Sri.Khurshid and Sri.Khurshid has got the property from Smt.Akkamma. Smt.Akkamma had purchased the same from Smt.Muniyamma. Smt.Muniyamma has got the property from Sri.T.Krishna Reddy. The relevant documentary evidence produced by the parties would go to show that plaintiffs and defendant are the respective owners of their property.
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25. It is pertinent to note that the sale deed of the defendant mentions that the passage has a width of 4 feet on the western side of their property. Therefore, it cannot be disputed that there exists a passage on the western side of the property of plaintiffs, which is on the eastern side of the property of plaintiffs. As such, the dispute among the parties whether the passage is having width of 4 feet or 5 feet.
26. In order to resolve said dispute between the parties, this Court appointed a Court Commissioner. The Court Commissioner has visited the suit property and measured the width of the passage. The report of the Court Commissioner would reveal that there exists a passage having width of 3 feet 9 inches. Material on record sufficiently established that said passage as common passage.
27. As such, neither the plaintiffs nor the defendant are entitled to put up any construction over the passage as the said passage is required to reach the road that is existing on the northern side of the property. Further, if both the parties are restrained from putting up any construction and the passage having a width of 3 feet 9 inches is left open to the sky without
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NC: 2023:KHC:38477 RFA No. 1441 of 2006 therebeing intervening structures would meet the ends of justice.
28. Under such circumstances, the decree passed by the learned Trial Judge needs to be modified only to the extent of width is to be shown as 3 feet 9 inches instead of 5 feet claimed by the plaintiffs. Likewise, since the title deed of the defendant mentioned 4 feet of passage on the western side and the title deed of plaintiffs mentioned 5 feet on the eastern side, the passage being common to both the parties. Further, since said passage is only the passage that is available for the parties to reach the road situated on the northern side, allowing the passage to remain as it is eternally would meet the ends of justice.
29. Accordingly, to the said extent, the impugned judgment needs interference.
30. In view of the foregoing discussions, this Court has answered point Nos.1 and 2 in partly-affirmative. RE.POINT NO.3:
31. In view of the findings of this Court on point Nos.1 and 2 as above, the following:
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NC: 2023:KHC:38477 RFA No. 1441 of 2006 ORDER i. The appeal is allowed-in-part.
ii. Decree of the trial Court is modified by directing that both parties shall not medal with the common passage having a width of 3 feet 9 inches and the same should be left open to the sky.
iii. Further, both parties are entitled to make use of the passage of 3 feet 9 inches only for ingress and egress to their respective properties from the Road situated on northern side and not entitled to put up any construction.
iv. No order as to costs.
Sd/-
JUDGE KTY List No.: 1 Sl No.: 27 CT:SNN