Karnataka High Court
Sri Shailesh vs Sri Jeetendra Dayalji Majethia on 2 July, 2024
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NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 2695 OF 2006 (PAR-)
C/W
REGULAR SECOND APPEAL NO. 2697 OF 2006
REGULAR SECOND APPEAL NO. 2698 OF 2006
IN RSA NO. 2695/2006
BETWEEN:
1. SMT SUSHEELA BHAWARLALJI BHANDARI
SINCE DECEASED BY LR'S
1A SRI MUKESH
W/O BHAWARLALJI BHANDARI
AGE: ABOUT 54 YEARS,
OCC: BUSINESS,
Digitally signed
by SAROJA R/O DESHPANDE NAGAR,
HANGARAKI NEELIGEN ROAD,
Location: HIGH HUBBALLI-580029,
COURT OF DIST. DHARWAD.
KARNATAKA
DHARWAD 1B SMT. SHASHI
BENCH W/O HITESH SANCHETI,
DHARWAD AGE: ABOUT 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O DESHPANDE NAGAR,
NEELIGEN ROAD,
HUBBALLI-580029,
DIST. DHARWAD.
1C SMT. GEETA W/O VIPUL SOLANKI,
AGE: ABOUT 45 YEARS,
OCC: HOUSEHOLD WORK,
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NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
R/O DESHPANDE NAGAR,
NEELIGEN ROAD, HUBBALLI-580029,
DIST. DHARWAD.
2. SRI RAJESH BHAWARLALJI BHANDARI
AGED ABOUT 40 YEARS,
OCC: BUSINESS,
R/AT DESHPANDE NAGAR,
NEELIGIN ROAD, HUBBALLI.
...APPELLANTS
(BY SRIYUTHS M.R.MULLA, P.C.SAJJANAR AND
VISHWANATH S. BICHAGATTI, ADVOCATES)
AND:
1. SRI JEETENDRA DAYALJI MAJETHIA
AGE: 52 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI.
2. SMT. RAMILA W/O JEETENDRA MAJETHIA,
AGE: 50 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI-580029, DIST: DHARWAD.
...RESPONDENTS
(BY SRI PRAKASH K. JAWALKAR AND
SRI S.B.PATIL, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 17.07.2006 PASSED IN
R.A.NO.165/2004 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE
(SR.DN.), HUBBALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.10.2004 PASSED IN
O.S.NO.265/2002 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE
(JR.DN.), HUBBALLI,
IN RSA NO.2697/2006
1. SRI SHAILESH S/O VITHALBHAI PATEL
AGE ABOUT 39 YEARS, OCC: BUSINESS
R/AT DESHPANDE NAGAR,
HUBBALLI-580029.
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NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
2. SMT. SONAL W/O SHAILESH PATEL
AGED ABOUT 36 YEARS,
OCC: BUSINESS,
R/AT DESHPANDE NAGAR,
NEELIGIN ROAD, HUBBALLI.
...APPELLANTS
(BY SRIYUTHS M.R.MULLA, P.C.SAJJANAR AND
VISHWANATH S. BICHAGATTI, ADVOCATES)
AND:
1. SRI JEETENDRA DAYALJI MAJETHIA
AGE: 52 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI.
2. SMT. RAMILA W/O JEETENDRA MAJETHIA,
AGE: 50 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI-580029, DIST: DHARWAD.
...RESPONDENTS
(BY SRI PRAKASH K. JAWALKAR AND
SRI S.B.PATIL, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 17.07.2006 PASSED IN
R.A.NO.163/2004 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE
(SR.DN.), HUBBALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.10.2004 PASSED IN
O.S.NO.253/2002 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE
(JR.DN.), HUBBALLI,
IN RSA NO.2698/2006
1. SRI SHAILESH S/O VITHALBHAI PATEL
AGE ABOUT 39 YEARS, OCC: BUSINESS
R/AT DESHPANDE NAGAR,
HUBBALLI-580029.
2. SMT. SONAL W/O SHAILESH PATEL
AGED ABOUT 36 YEARS,
OCC: BUSINESS,
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NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
R/AT DESHPANDE NAGAR,
NEELIGIN ROAD,
HUBBALLI-580029.
...APPELLANTS
(BY SRIYUTHS M.R.MULLA, P.C.SAJJANAR AND
VISHWANATH S. BICHAGATTI, ADVOCATES)
AND:
1. SRI JEETENDRA DAYALJI MAJETHIA
AGE: 52 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI-580029.
2. SMT. RAMILA W/O JEETENDRA MAJETHIA,
AGE: 50 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI-580029.
...RESPONDENTS
(BY SRI PRAKASH K. JAWALKAR, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 17.07.2006 PASSED IN
R.A.NO.162/2004 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE
(SR.DN.), HUBBALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.10.2004 PASSED IN
O.S.NO.253/2002 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE
(JR.DN.), HUBBALLI.
THESE APPEALS, COMING ON FOR FURTHER SUBMISSIONS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
JUDGMENT
RSA No.2695/2006 is filed by the plaintiffs challenging the judgment and decree dated 17.7.2006, passed in R.A No.165/2004 by the II Additional Civil Judge (Sr.Dn), Hubli1 and the judgment and decree dated 30.10.2004 passed in O.S No.265/2002 and O.S No....on the file of the I Additional Civil Judge (Jr.Dn), Hubli2, wherein the Trial Court allowed the counter claim made in the said suit.
2. RSA No.2697/2006 is filed by the plaintiffs challenging the judgment and decree dated 17.7.2006 passed in R.A No.163/2004 by the First Appellate Court, and the judgment and decree dated 30.10.2004 passed in OS.No.253/2002 by the Trial Court allowing the counter claim made in the said suit.
3. RSA No.2698/2006 is filed by the plaintiffs challenging the judgment and decree dated 17.7.2006 passed in R.A No.162/2004 by the First Appellate Court, and the judgment and decree dated 30.10.2004 passed in 1 Hereinafter referred to as the 'First Appellate Court' 2 Hereinafter referred to as the 'Trial Court' -6- NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 O.S No.253/2002 by the Trial Court, wherein the suit of the plaintiffs was dismissed.
4. It is submitted that RSA No.2696/2006 filed challenging the judgment and decree passed in R.A No.164/2004 which was filed challenging the dismissal of the suit in O.S No.265/2002, has been dismissed for non- prosecution by this Court vide order dated 27.09.2012.
5. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.
6. The relevant facts leading to the present second appeals are that one Sri.Shailesh Vithalbai Patel and his wife Smt.Sonal Shailesh Patel3 filed a suit in O.S No.253/2002 against one Sri.Jeetendra Dayalji Majethia and his wife Smt.Ramila Jeetendra Majethia4 for declaration that Patel is entitled to easementary rights by necessity to pass, use, enjoy and utilize the suit property 3 Hereinafter collectively referred to as 'Patel' 4 Hereinafter collectively referred to as 'Majethia' -7- NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 for ingress and egress and for consequential relief of injunction to restrain the defendants from interfering with the right of the plaintiffs. The suit property as described in Paragraph-2 of the said plaint as a 14 feet wide passage in CTS No.161/A/10 of CTS Ward No.III situated at Neeligin road, Hubli.
7. The plaintiff in O.S No.265/2002 namely Smt.Susheela Bhawarlalji Bhandari and her son Sri.Rajesh Bhawarlalji Bhandari5 filed a suit against Majethia for a declaration that the plaintiffs have got the permanent easementary rights by way of necessity over the 14 feet wide passage of CTS No.161/A/10 in CTS Ward No.III of Neeligin road, Hubli and for the consequential relief of injunction to restrain the defendants from interfering with the same.
8. It is the case of the plaintiffs in both the suits that they have purchased permanent lease hold rights of immovable property bearing CTS Nos.161/A/1 and 5 Hereinafter collectively referred to as 'Bandari' -8- NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 161/A/2 respectively. That the property of the defendants in CTS No.161/A/10 is situated on the western side of the property purchased by them. The suits are filed claiming easementary rights over the 14 feet wide passage situated in the property of the defendants on the eastern side abutting the property of the plaintiffs. Hence, the plaintiffs sought for the relief of declaration as noticed above.
9. The defendants entered appearance in the suits and contested the case of the plaintiffs. It is specifically contended that the defendants purchased their property bearing CTS No.161/A/10 vide Sale Deed executed on 22.03.1995 which was registered on 27.03.1995 and that the lease deed in favour of the plaintiffs had been executed on 27.03.1995 subsequent to execution of the sale deed in favour of the defendants. That the defendants having acquired full ownership over their property vide the said sale deed, no rights whatsoever in the said property could be conveyed in any manner whatsoever in favour of the plaintiffs vide the lease deeds dated 27.03.1995 -9- NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 including any right of easement. It is the further contention of the defendants that they have put up construction by leaving adequate set back area and that the plaintiffs are interfering with the possession of the defendants and hence they made a counter claim for injunction to restrain the plaintiffs from interfering with the peaceful possession of their property. Both the suits were clubbed together and the common evidence was recorded.
10. Consequent to the pleadings of the parties, the Trial Court framed the following issues:
"1. Whether plaintiffs prove that, they have right to pass, use, enjoy and utilise the suit property for ingress and engress by way of right of easement by grant and necessity?
2. Whether plaintiffs prove that, the defendants are trying to construct compound wall and installation of generation sets, etc., thereby causing obstruction to plaintiffs in the peaceful use, wahivat and enjoyment of suit property?
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006
3. Whether plaintiffs prove that, the defendants are illegally trying to change the nature and character and status of suit property?
4. Whether description of suit property is proper and correct?
5. Whether plaintiffs prove that, the suit property is the only way for ingress and egress to reach the godown of the plaintiffs?
6. Whether defendants prove that, they are in peaceful possession and enjoyment of suit property having right to put compound wall and to fix generations, etc.,?
7. Whether defendants prove that, the plaintiffs are interfering and causing obstruction illegally to the peaceful possession and enjoyment of suit property by the defendants and in the work of construction of compound wall and fixing generator, etc., in suit property by the defendants?
8. Whether the defendants prove the description of counter claim property is proper and correct?
9. Whether plaintiffs are entitled for the relief sought for?
10. Whether defendants prove that, the suit is barred by limitation?
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006
11. What order or decree?"
11. Evidence was adduced by both the parties. The Trial Court by its judgment and decree dated 30.10.2004 dismissed the suits and the counter claims of the defendants were allowed and passed the following order:
"The suit filed by plaintiff for declaration and consequential relief of injunction against the defendants hereby dismissed.
The counter claim filed by defendants is hereby allowed. The plaintiffs are hereby directed by way of permanent injunction not to interfere and obstruct with defendants' peaceful possession and enjoyment over suit property.
Considering the circumstances, no order as to costs.
Draw decree accordingly.
The copy of this judgment is kept in
O.S.No.265/2002."
12. Being aggrieved, the plaintiffs in both the suits preferred R.A.Nos.162/2004, 163/2004, 164/2004 and
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 165/2004. The defendants who were the respondents in the said appeals entered appearance before the First Appellate Court and contested the same. All the four appeals were considered together. The First Appellate Court framed the following points for consideration:
"1. Whether the Trial Court's judgment and decree is not based on proper pleadings and evidence, needs to be interfered by this court?
2. What order?
13. The First Appellate Court by its judgment and decree dated 17.07.2006 dismissed the appeals and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the plaintiffs in the suits have filed the present second appeals.
14. This Court vide order dated 04.07.2013 admitted RSA No.2695/2006 and framed the following substantial questions of law:
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 "i. Whether the findings of the Courts below that the plaintiffs have not established the easement of necessity is supported by material on record? ii. Whether the defendants were entitled to a decree of permanent injunction in respect of the property which is claimed by the plaintiff as easement of necessity?"
15. RSA No.2696/2006 has been dismissed for non- prosecution by this Court. The substantial question of law framed in RSA No.2695/2006 has also been considered as substantial question of law to be considered in RSA No.2697/2006 and RSA No.2698/2006.
16. It is the contention of the learned counsel for the appellants/plaintiffs that the Trial Court and the First Appellate Court erred in recording a finding that the alternative access to the property is as beneficial as the easementary right claimed by the plaintiffs. He further submits that the easementary right claimed by the plaintiffs has also been shown in the Sale Deeds under which the defendants purchased the property. Hence, he
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 seeks for allowing of the above appeals and granting of the reliefs sought for.
17. Per contra, learned counsel for the respondents contends that both the Courts have recorded concurrent findings of fact that the easementary right that is claimed by the plaintiffs is in respect of the setback area of the property of the defendants. It is further contended that both the Courts having recorded a finding that there exists an access to the plaintiffs from Deshapande Nagar conservancy lane which is a proper road and that the said concurrent findings recorded by both the Courts ought not to be interfered with. He further contends that the substantial questions of law framed vide order dated 04.07.2013 by this Court are not the substantial questions of law and they are questions of fact in respect of which concurrent findings have been recorded and hence the appeals are liable to be dismissed.
18. The submissions of the learned counsel for the appellants and learned counsel for the respondents have
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 been considered and the material on record including the records of the Trial Court and First Appellate Court have been perused.
19. It is forthcoming that the Trial Court while considering the suit of the plaintiffs and answering the issues framed for consideration, has recorded a finding that in the sale deed executed in favour of the defendants, the plaintiffs' vendor have not reserved any right of way of 14 feet suit passage. The Trial Court has further noticed that the Lease Deeds on the basis of which the plaintiffs had acquired permanent leasehold rights over the property (Exs.P.1 and P.3) have shown an access to the said leased properties through a conversancy lane which is 12 feet in width and hence the Trial Court has recorded a finding that the plaintiffs have no access over the suit property which exclusively belongs to the defendants.
20. The Trial Court has further recorded a finding that the defendants have kept open the suit passage as setback as per the building regulations which is
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 forthcoming from the copy of the blueprint (Ex.D.3). The Trial Court has also noticed that PW.1 in O.S.No.253/2002 has admitted that he along with plaintiffs in O.S.No.265/2002 utilized the right on eastern side as well as the road on the western side. The Trial Court has also noticed that the plaintiffs having been interfering with the possession of the defendants who were entitled to put up the compound wall, has recorded a finding that the plaintiffs in the guise of claiming easementary right are interfering with the peaceful possession and enjoyment of the defendants property.
21. The First Appellate Court while considering the appeal filed by the plaintiffs, upon an adequate reappreciation of the oral and documentary evidence on record, noticed that the plaintiffs have failed to prove that the declaration in respect of the suit property as an easement of necessity has not been demonstrated since the plaintiffs have independent access to their property. It has been further noticed that 14 feet wide passage is a
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 setback area of the defendants' property, on its eastern side and is located abutting the western boundary of the plaintiff. The First Appellate Court has also in detail examined the Sale Deeds (Exs.D.5 and D.6) under which the defendants purchased the property as well as the Lease Deeds (Exs.P.2 and P.3) under which the plaintiffs purchased the property and held that no easementary right is available to the plaintiffs through the defendants property and the only means for ingress and egress for the plaintiffs was through the conservancy lane which is 12 feet wide, which is located abutting the eastern boundary of the property of the plaintiffs.
22. It is clear and forthcoming from the aforementioned that concurrent findings of fact have been recorded that the only means of ingress and egress for the plaintiffs to their property is through the conservancy lane which is 12 feet in width and located on the eastern boundary of the plaintiffs property. It is further clear and forthcoming that the suit property in respect of which the
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 easementary right is sought to be claimed by the plaintiffs is the setback area left by the defendants on the eastern portion side of their property which is abutting the western boundary of the plaintiffs property.
23. It is clear and forthcoming from the sketch (Ex.D.4) that the western boundary of the plaintiffs' property is the property of the defendants, wherein the defendants have constructed a building after leaving a setback of 14 feet.
24. It is clear from the aforementioned that the only access to the plaintiffs is through the Deshapande Nagar conservancy lane situated on the eastern side of its property. In view of what is noticed above, the substantial question of law Nos.(i) and (ii) are answered in the affirmative.
25. Hence, the following:
ORDER i. The above appeals are dismissed;
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NC: 2024:KHC-D:9064 RSA No. 2695 of 2006 C/W RSA No. 2697 of 2006, RSA No. 2698 of 2006 ii. The judgment and decree dated 17.07.2006 passed in R.A.No.162/2004, R.A.No.163/2004 and R.A.No.165/2004 by the II Additional Senior Civil Judge, Hubballi is confirmed;
iii. The judgment and decree dated 30.10.2004 passed in O.S.No.253/2002 and O.S.No.265/2002 by the I Additional Civil Judge, Hubballi is confirmed.
Sd/-
JUDGE PMP upto para 9 Sh, CT:GSM List No.: 1 Sl No.: 64