Karnataka High Court
Devaray Shiva Govekar vs Mahadev Anant Naik on 6 September, 2012
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 6th DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE B.V.PINTO
R.S.A. NO.209/2003
BETWEEN:
Devaray Shiva Govekar,
64 years, R/o. Cross-Road,
Behind Arts & Science College
Karwar
Since deceased by L.Rs.,
1. Tara, 68 years, W/o. Devaray Goverkar,
2. Vidya, 42 years, W/o. Keertiraj Banakar,
3. Shailaja, 40 years, W/o. Sharat Dalvi,
4. Murlidhar, 38 years, S/o.Devaray Govekar,
5. Aarti, 32 years, W/o. Hemant N.Talekar,
All are residents Cross-Road
Behind Arts & Science College
Karwar-581 301
(Amended as per order dtd:28-07-2009)
... APPELLANTS
(BY Sri.Ganapati.M.Bhatt for Sri.K.S.Desai
& Sri.Harsh Desai, Advocates)
AND:
1) Mahadev Anant Naik, 66 Years,
Now at - Belgaum.
Since dead by LRs.,
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a) Sunitha W/o.Mahadev Naik ,
No.186, III Main, 8th Cross,
Sadashivanagar, Belgaum.
b) Dinesh S/o.Mahadev Naik,
No.186, III Main, 8th Cross,
Sadashivanagar, Belgaum.
c) Dr.Vinod, S/o.Mahadev naik,
No.990A, Ashram Road, Karwar.
(Amended as per order dtd:15-06-2005)
2) Ganapathi Anant Naik, 57 years,
Now at - Riyadh, Saudi Arabia.
3) Manohar Anant Naik, 52 years,
Ashram Road, Karwar.
4) Satish Anant Naik, 49 years,
Now at - Mumbai. ... RESPONDENTS
(Note - Respondents - 1,2 & 4 are represented by their
GPA/Respondent-3)
(BY Sri.Sachin Magadum, Adv., for R-1(a), R-2 to 4
Notice to R-1(b) is held sufficient V/o. dt:7/6/05:
Notice to R-1(c) is dispensed with V/o. dt:7/6/05)
This RSA is filed u/s.100 of CPC against the
Judgment and Decree dt.19.12.02 passed in R.A.No.47/98
on the file of the Prl.Civil Judge (Sr.Dn), Karwar, allowing
the appeal and setting aside the Judgment and Decree
dt.16.4.98 passed in O.S.No.25/87 on the file of the Civil
Judge (Jr.Dn), Karwar.
This RSA. coming on for final hearing this day, the
Court delivered the following:-
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JUDGMENT
This second appeal is filed by the defendant in O.S. NO.25/1987 in which the plaintiffs have filed the suit against the defendant seeking for a declaration that plaintiffs being the owners and occupiers of land bearing Sy.No.231A/1A/1K of Baad-I Village of Karwar Town to an extent of 15 guntas and 4 annas were using pathway towards the northern side of their property which was bifurcated and numbered as Sy.No.231A/1A/1B and was purchased by the defendant on 27.11.1976 and on which the defendant has constructed a house and has obstructed the plaintiffs from using the said pathway leading to the main municipal road called as Kursawada road. It is the case of the plaintiffs, who are the brothers inter se that they have inherited the property from their father Sri.Anant Naik. The said property is the ancestral property and that in view of the cultivation of the said land for more than 46 years prior to the date of filing of the suit, they claimed an occupancy right under the Karnataka Land Reforms Act and by order dated 11.12.1979, the Land Tribunal, Karwar in No.TNC/MSC/SR/2408 declared that they were the registered occupants of the said land being -4- the actual cultivators. It is the case of the plaintiffs that the defendant has purchased the land in dispute on 27.11.1976 and he has constructed the house by obtaining the license from the Town Municipal Council which was granted to him on 21.4.1977. It is the case of the plaintiffs that immediately after the purchase of the land, the defendant has put a compound wall around the land which is 6 guntas in extent and thus he has obstructed the easementary right of the plaintiffs which right was in use from time immemorial by the plaintiffs and their ancestors in title. The plaintiffs have filed the suit on 18.4.1987 praying for a declaration that they are entitled for pathway of five feet in width across Sy.No.231A/1B of Baad-I Village of Karwar Town running from north to south at the western edge of the defendant's land shown in the hand sketch as 'ABCD' to reach the said land of the plaintiffs. In the alternative, the plaintiffs have prayed for a declaration holding that plaintiffs have got easementary right over the suit pathway of five feet width in the aforesaid land. It is also prayed by the plaintiffs for declaring that they have got easementary right over the said suit pathway and also the right of ingress and egress to reach their land and -5- consequently a decree of mandatory injunction to remove portion of the compound wall of five feet in width towards western edge of the compound wall constructed by the plaintiffs between the property of the plaintiffs and defendant.
2. On receipt of the notice from the Court, the defendant filed his written statement urging interalia that there was no pathway at all on the western side of his property as on the date of his purchasing the land and that the plaintiffs have got an alternative access to their property on the Government Arts and Science College road and therefore, the suit is filed without any cause of action against the defendant.
3. The trial Court after considering the plaint and the written statement framed the following issues:
1. Whether the plaintiffs prove the existence of the suit pathway marked as ABCD in the plaint sketch as alleged in the plaint?
2. Whether the plaintiffs prove that they have got easement of necessity to use the suit pathway to reach the land bearing Sy.No.231A/1A1K measuring 0-3-0?-6-
3. Whether the plaintiffs prove that they have acquired prescriptive right of easement to use the suit pathway to reach the above said land?
4. Whether the plaintiffs prove that they have got easementary right over the suit pathway by way of grant as alleged in the plaint?
5. Whether the plaintiffs prove the obstruction of the suit pathway by means of a compound wall by the defendant as alleged in the plaint?
6. Whether the plaintiffs are entitled to relief of mandatory injunction sought for?
7. Whether the plaintiffs are entitled to the declaration sought for?
8. What decree or order?
4. In order to prove case of the plaintiffs, they have got examined five witnesses and got marked Exs.P1 to P17. The defendant examined himself as DW.1 and also examined two more witnesses to support his case and produced documents Exs.D1 to D5. The learned trial Court after examining the entire materials on record as well as both oral and documentary evidence, came to the conclusion that the plaintiffs have not established that they have got any right of easement by way of grant, prescription and by way of necessity over the property of -7- the defendant hence dismissed the suit. Being aggrieved by the said dismissal, the plaintiffs filed Regular Appeal before the Civil Judge (Sr.Dn.), Karwar (hereinafter referred to as the Lower Appellate Court - 'the L.A.C.' for short).
5. The L.A.C. in para 8 of its Judgment has observed thus:-
"8. Learned Counsel for the plaintiffs- appellants Sri M.R.Adi has submitted before this Court that he is not going to press the claim of the plaintiffs in respect of easement by way of grant and prescription, and he is only pressing the easement by way of necessity."
6. The L.A.C. after hearing the parties, allowed the appeal filed by the plaintiffs and decreed the suit filed by them declared that the plaintiffs are entitled for the pathway of five feet in width across Sy.No.231A/1B of Baad-I Village, Karwar Town running from north to south at the western edge of the defendant's land as shown in the hand sketch at 'ABCD' to reach the lands of the plaintiffs as shown at A in the hand sketch by easement of necessity. The L.A.C. further granted relief of mandatory injunction directing the defendant to remove the portion of -8- the compound wall of five feet in width towards western edge of the compound wall as shown in the hand sketch. The Court further observed that in case defendant fails to obey the said order of removal of the said compound wall, the plaintiffs are entitled to remove the same through the process of Court. The defendant is in appeal challenging the Judgment of the lower appellate Court.
7. Therefore, in view of the above observation of the L.A.C., in para 8 of its judgment [reproduced above] the point for determination in this appeal is now restricted to the question is as to whether the plaintiffs have proved their right of easement by way of necessity.
8. This Court has framed the following substantial question of law viz., Whether the L.A.C. is justified in holding that Section 17 of the Easement Act is applicable.
9. The order of this Court dated 06/10/2009 reads as follows;
"The substantial question of law that would arise for consideration is whether the Lower Appellate Court is justified in holding that Section 17 of the Easements Act is applicable. In the light of the fact, that there -9- is no circumstance of transfer or a bequest in respect of the property in question, between the parties."
10. In order to substantiate their claim, plaintiff No.3 has examined himself as PW.1. He has reiterated the statement in the plaint in particular he has stated that originally for the past 46 years, the schedule property belonged to one Shridhar Govind Shet Pauskar which was to an extent of 2 acres 32 guntas. His grand father by name Pursappa Ira Naik was cultivating 1 acre 11 guntas of land on the basis of an agricultural tenant, one Damu Sheshu was cultivating the balance 1 acre 11 guntas, out of the remaining 10 guntas 5 guntas of the land was in the form of hillock, 3 guntas were kharab land and the balance 2 guntas was covered by trees. The entire 10 guntas of land was in the name of Shridhar Govind Shet Pauskar. The land belonging to his grand father was entered in the property documents in the name of his grand father. The aforesaid Shridhar Govind Shet Pauskar sold the original Sy.No.231 measuring 2 acre 32 guntas to one Pursappa Krishnappa Shet, which was later on transferred to Anantha Krishnappa Shet. In respect of this sale, his grand
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father and Damu Sheshu had raised disputes. However, name of Anantha Krishnappa Shet acquired as owner of the said land in the survey records. Subsequently, Anantha Krishnappa Shet acquired possession of the said land. Damu Sheshu was in the possession of 1 acre and 11 guntas and that portion was numbered as Sy.No.231/1B. The mutation has taken place in respect of the said land. The aforesaid land was subject to litigation between Pursappa Krishnappa Shet and Anantha Krishnappa Shet in the Civil Court, Karwar. The said property was subsequently purchased by one Sheshu Talekar and after his demise the land stood in the name of Lakshmi Kocharekhara. The present defendant has purchased 6 guntas of the aforesaid land from Lakshmi Kocharekhara. The plaintiffs have further stated that inspite of such transfer of property from one person to another, the plaintiffs' ancestors have been passing through the suit schedule property eversince they were in possession on their part of the land and on the date when the said land was purchased i.e., on 27.11.1976, a pathway existed in the property belonging to the defendant and that the defendant had by building a compound wall obstructed
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such right of movement over the said property. The plaintiff has also got examined PWs.2 to 4 in support of their case. PW.2-Irappa Pursappa Naik is the uncle of the plaintiffs; PW.3-Chandrakanth Babani Naik is an eyewitness; PW.4-Pradeep Dattatraya Waigankar is the Court Commissioner and an Advocate and PW.5-Umakanta Narayan Naik, is a neighbour. The defendant has got examined themselves as DW.1 and he has also got examined two more witnesses in his defence and produced documents as per Exs.D1 to D5a. The documents produced by the plaintiffs include the Mutation Register Extracts, Survey Sketch and R.T.C.Extracts. The plaintiffs also relies on the report of the Court Commissioner and the sketch prepared by the Court Commissioner. So far as the documents of defendant are concerned he has produced the permission obtained from the CMC, Karwar for having granted permission to build the house and also the approved site plan obtained from CMC, Karwar and the sketch obtained from the Town Planning Authority, Karwar to show that he has been granted permission to build the house in the suit schedule property.
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11. The trial Court after hearing the parties relying on the oral and documentary evidence produced by the plaintiffs and defendant held that the plaintiffs have not been successful to prove any easementary right over the suit schedule property and thus dismissed the suit filed by the plaintiffs. The defendant thereafter approached the lower appellate Court namely., Civil Judge [Sr.Dn] Karwar challenging the Judgment passed by the trial Court and the lower appellate Court, after hearing both the parties came to the conclusion that the plaintiffs have made out a case in their favour and thus decreed the suit of the plaintiffs. Being aggrieved by the said order passed by the lower appellate Court, the defendant has filed this appeal.
12. Heard Sri Ganapati M.Bhat, learned Counsel appearing for the appellants and Sri Sachin Magadum, learned Counsel appearing for R1(A), R2 to R4.
13. It is submitted by the learned Counsel appearing for the appellant that the observations made by the lower appellate Court on the basis of a suggestion made by the Counsel in the cross examination of the plaintiffs that the plaintiffs were using the said pathway is
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erroneous. Though the plaintiffs claim 5 feet vide pathway, the Court Commissioner has found that there were coconut plants on the said pathway and therefore, the said land could not have been in use of the plaintiffs prior to the purchase of the land by the defendant. He further submits that though the suit property was purchased by the defendant on 27.11.1976, the plaintiffs did not approach the Court for about 11 years till 18.4.1987 and therefore it can be necessarily presumed that the plaintiffs had an alternative access to the said property as suggested by the defendant. Therefore, it is his submission that the very fact that the suit has been filed 11 years after the defendant has put the compound wall around his property indicates that for all 11 years plaintiffs were not using the alleged pathway and that in the said pathway fully grown coconut trees were found when the Commissioner visited the suit schedule property. Hence, it is his submission that the plaintiffs could not have claimed the right either by prescription or as an easement of necessity. It is further submitted by him that the City Town Municipal Council of Karwar had granted permission to build the house to the defendant on 29.4.1977 and the plaintiffs have not even
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challenged the said permission granted by the City Municipal Council and hence even if they had claimed a right over the suit schedule property, the same has not been enforced by the plaintiff deligently and therefore after a lapse of 11 years they could not have legally enforced their right. Hence, he submits that the order passed by the lower appellate Court is erroneous, the same may be set aside and the order passed by the trial Court may be confirmed.
14. Sri Sachin Magadum, learned Counsel appearing for the respondents submits that the Commissioner's Report-Ex.P16 nowhere indicates that there is any other way or access of ingress and egress to the property of the plaintiffs and that their only approach to the Khursa Wada Road is through the property of the defendant as per the sketch prepared by the Court Commissioner. It is further submitted by him that all the witnesses examined by the plaintiffs are relatives and friends of the plaintiffs and that no independent witness has been examined to prove that there was absolutely no pathway in the land which was subsequently purchased by the defendant and that the trial Court has not at all come
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to any conclusion regarding the acceptance of the alternative road. It is also submitted by him that the previous owner of the defendant has not been examined by the defendant to prove that there is no right of way for the plaintiffs over the defendant's property. Under the circumstances and on a preponderance of evidence on record, the plaintiffs have made out a case and the lower appellate Court has rightly decreed the suit and therefore prays that the appeal may be dismissed. It is also further submitted by him that the defendant had not pleaded that the plaintiffs have got an alternative access to their property either in the reply notice or in the written statement before the trial Court. Hence, he submits that the suit filed by the plaintiffs deserves to be decreed and the lower appellate Court has rightly decreed the suit.
15. I have also gone through the entire materials on record. I have also gone through the evidence of the plaintiffs and the defendant and also the documents marked before the trial Court. It is the case of the plaintiffs that they had a right of way over the suit schedule property and that the said right of way is enjoyed by them by prescription. However, when the appeal was
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being heard, the Counsel for the plaintiffs restricted their claim only to the easement of necessity as observed by the lower appellate Court in para 8 of its Judgment. Therefore, only consideration in this appeal is:-
"Whether the plaintiffs have made out a case of the existence of easement of right of way by necessity?"
16. From the lower Court records, it is seen that the defendant had purchased the property on 27.11.1976. It is the case of the defendant that he had put a compound wall around his property immediately after the purchase and he has got permission from the Town Municipal Council, Karwar on 29.4.1977 to build a house. The plaintiffs case is that they have been obstructed from going to the Khursa Wada road via the land of the defendant. However, no action has been taken by the plaintiffs either to object for the erection of compound wall or building the house by the defendant and the suit was filed on 18.4.1987 after almost 11 years. During these long 11 years, the plaintiffs would have naturally gone out of their property and during the said period unnecessarily they would have used some alternative road to reach the city or the other places. The plaintiffs have also not
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produced any cogent evidence to show that there is absolutely no other alternative way to go out of their property and therefore considering these aspects, the learned trial Court has held that the plaintiffs have not made out any case to prove their easement of necessity. However, the learned lower appellate Court basing his finding on a suggestion made by the defendant to the plaintiffs witness that they never passed through in the suit way held that the way existed though the answer to the said question was in the negative. I am of the opinion that the said finding of the lower appellate Court is erroneous and contrary to the evidence on record. The plaintiffs have not at all established that there was a way over the property of the defendant. This fact is further strengthened by the fact that the plaintiffs were claiming 5 feet vide pathway near the land of the defendant. Whereas the Court Commissioner has found that the coconut trees were almost fully grown within 2½ to 3 feet of the defendant's compound wall, where the plaintiffs claim a right of access. If at all the defendant had obstructed the right of ingress and egress, the plaintiffs could have
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approached the Court immediately after 27.11.1976 and would not have waited for almost 11 years to file the suit.
17. Under the circumstances, the plaintiffs have not made out a case for easement of necessity from the materials available on record.
18. In that view of the matter, I am of the opinion that the learned trial Court has rightly dismissed the suit filed by the plaintiffs. Hence, I am of the considered opinion that the Judgment of the trial Court deserves to be confirmed and the Judgment passed by the lower appellate Court deserves to be set aside. Hence, the following:-
ORDER The Judgment dated 19.12.2002 in R.A.No.47/1998 passed by the Prl. Civil Judge (Sr.Dn.), Karwar, is set aside and the Judgment dated 16.4.1998 passed in O.S.No.25/1987 on the file of Civil Judge (Jr.Dn.) Karwar, dismissing the suit of the plaintiffs is hereby confirmed.
Sd/-
JUDGE BS/cp*