Gudusab Jhansab Guddad vs Nagappa Hanamantappa Bajantri
2022 Latest Caselaw 2300 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 14TH DAY OF FEBRUARY, 2022

                         BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.5038/2012 (DEC/INJ)

BETWEEN

1.     GUDUSAB JHANSAB GUDDAD,
       AGE: 46 YEARS, OCC: AGRICULTURE,
       R/O MANJALAPUR, TQ: SHIRAHATTI,
       DIST: GADAG.

2.     DASTHGIRISAB KHANSAB GUDDAD,
       AGE: 44 YEARS, OCC: AGRICULTURE,
       R/O MANJALAPUR, TQ: SHIRAHATTI,
       DIST: GADAG.
                                             ...APPELLANTS
(BY SRI ASHOK T.KATTIMANI, ADV.)

AND

1.     SRI NAGAPPA HANAMANTAPPA BAJANTRI
       SINCE DECEASED REPRESENTED BY HIS LRS.

1(A)   SOMAPPA S/O NAGAPPA BHAJANTRI @ KSHTRIYA,
       AGE : 40 YEARS, OCC: TEACHER,
       R/O BASTI BAN, LAXMESHWAR-582116.
       TQ: SHIRAHATTI, DIST: GADAG.

1(B)   ANAND S/O NAGAPPA BHAJANTRI @ KSHTRIYA,
       AGE : 36 YEARS, OCC: BUSINESS,
       R/O BASTI BAN, LAXMESHWAR-582116.
       TQ: SHIRAHATTI, DIST: GADAG.

1(C)   NEELAVVA D/O NAGAPPA BHAJANTRI @ KSHTRIYA,
       AGE : 32 YEARS, OCC: HOUSEHOLD WORK,
       R/O BASTI BAN, LAXMESHWAR-582116.
       TQ: SHIRAHATTI, DIST: GADAG.
                                2




1(D) HEMAVVA D/O NAGAPPA BHAJANTRI @ KSHTRIYA,
     AGE : 36 YEARS, OCC: HOUSEHOLD WORK,
     R/O BASTI BAN, LAXMESHWAR-582116.
     TQ: SHIRAHATTI, DIST: GADAG.

2.    IMMAMHUSENSAB JANGLISAB JAMAKHANDI
      AGE: 57 YEARS, OCC: AGRICULTURE,
      R/O LAXMESHWAR-582116,
      TQ: SHIRAHATTI, DIST: GADAG.

3.    GOUSUSAB KARIMSAB MUNDAS,
      AGE: 52 YEARS, OCC: AGRICULTURE,
      R/O. LAXMESHWAR-582116,
      TQ: SHIRAHATTI, DIST: GADAG.

4.    MOHAMMADHANIF MOHAMMADHUSEN SIDDI
      AGE : 48 YEARS, OCC: AGRICULTURE,
      R/O LAXMESHWAR-582116,
      TQ: SHIRAHATTI, DIST: GADAG.

5.    MAQUBALSAB MOHAMMADHUSEN SIDDI
      AGE : 46 YEARS, OCC: AGRICULTURE,
      R/O. LAXMESHWAR-582116,
      TQ: SHIRAHATTI, DIST: GADAG.
                                        .... RESPONDENTS

(BY   SRI V.R.PATIL, ADV. FOR APPELLANT NO.1
      NOTICE TO RESPONDENT NO.2 : HELD SUFFICIENT
      SRI LAXMAN T.MANTAGNI ADV. FOR R1(A) TO R1(D)
      AND C/R2 TO C/R5)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 05.12.2011 PASSED
IN R.A.NO.20/2010 BY THE ADDL. SENIOR CIVIL JUDGE,
GADAG      SITTING   AT   LAXMESHWAR    BY   REVERSING      THE
JUDGMENT     AND     DECREE   DATED   18.02.2010   PASSED    IN
O.S.NO.382/1995 BY CIVIL JUDGE (JR.DN.) LAXMESHWAR BY
ALLOWING THIS APPEAL WITH COST IN THE INTEREST OF
JUSTICE.

      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                       3




                             : JUDGMENT :

The captioned regular second appeal is filed by

defendants questioning the judgment and decree

passed by the First Appellate Court in

R.A.No.20/2010.

2. Facts leading to the above said case are as

under:

Respondents-plaintiffs filed a suit for declaration

and for consequential relief of injunction.

Respondents-plaintiffs claim that they have got

easementary right by way of prescription in the cart

road which is shown as 'ABCDE' in the hand sketch

annexed along with plaint. Respondents-plaintiffs

claim that they are the owners of Sy.No.60, which has

undergone sub-divisions. Respondents-plaintiffs

specifically pleaded that the entire extent was

originally owned by plaintiff No.1's ancestor and they

have been using suit cart road. Respondent No.1-

plaintiff No.1 further contended that portion of lands

were sold to respondent Nos.2 to 5 and pursuant to

alienation Sy.No.60 has undergone sub-divisions and

therefore they are assigned with Sy.Nos.60/1+2/E,

60/1+2/C, 60/1+2/B and 60/1+2/8.

3. Respondents-plaintiffs claim that they have

been using the cart road which is situated on the

western side of appellants-defendants' property

bearing Sy.No.41/4 and Sy.No.42/4. It is specifically

pleaded that to reach the main road, which is also

called Laxmeshwar-Battur Road, the suit cart road is

the only access and plaintiff No.1 since the time of his

ancestors has been using this cart road so as to reach

the main road. Respondent No.1-plaintiff No.1 has

specifically pleaded that this cart road is being

enjoyed by respondent No.1-plaintiff No.1 and his

ancestor for last 100 years and said cart road is used

to carry the bullock cart and as well as agriculture

equipments as well as vehicles namely tractor for

agricultural work. It is in this background,

respondents-plaintiffs contended that they have

acquired easementary right by way of prescription and

account of alienation by respondent No.1-plaintiff No.1

in favour of respondent Nos.2 to 5, who have

purchased the portion of the land and they have also

acquired similar easementary right by way of

prescription. On these set of grounds, the

respondents-plaintiffs sought for relief of declaration

to declare that they have got easementary right by

way of prescription.

4. Appellants-defendants appeared and

contested the proceedings. The appellants-defendants

filed written statement and stoutly denied the entire

averments made in the plaint. The present appellants-

defendants seriously disputed the description of the

suit property and the hand sketch produced along with

the plaint. The present appellants-defendants have

specifically denied the use of alleged cart road by

respondents-plaintiffs. The appellants-defendants also

contended that lands owned by respondents-plaintiffs

fall within the village of Hulageriban and though the

appellants-defendants lands are adjoining lands, they

are situated in the adjoining village Bastibana. A

specific contention was also taken by the appellants-

defendants to the effect that the respondents-plaintiffs

have an alternate road and they have to travel around

two kilometers on Laxmeshwar-Gadag Road and

thereafter they have to take a turn at point 'P' to the

East, therefore they have an access through footpath

(Kaludari) and to reach point 'Q' and thereafter they

can proceed to point 'R'.

5. Respondents-plaintiffs in support of their

claim led in ocular evidence by examining PWs.1 to 3

and produced documentary evidence vide Exs.P.1 to

P.26. The present appellants-by way of rebuttal

evidence examined three witnesses and produced

documentary evidence vide Exs.D.1 to D.6.

6. The Trial Court having assessed the oral

and documentary evidence has proceeded to dismiss

the suit by recording a categorical finding that the

respondents-plaintiffs have an alternate road and

therefore has refused to grant relief of declaration in

favour of respondents-plaintiffs in regard to their

easementary rights by way of prescription in the suit

cart road.

7. Feeling aggrieved, the respondents-

plaintiffs preferred appeal before the First Appellate

Court. The First Appellate Court having re-appreciated

the oral and documentary evidence has found that the

judgment and decree of the Trial Court in not granting

relief of declaration in favour of respondents-plaintiffs

is perverse. While interpreting Section 15 of the

Indian Easementary Act, 1882, the First Appellate

Court was of the view that mere existence of alternate

road would not take away the right of respondents-

plaintiff, more particularly, when easementary right is

claimed by way of prescription. It is in this

background, the First Appellate Court having

meticulously examined the ocular and documentary

evidence found that the cart road situated on the

western side of appellants'-defendants' property is in

existence and therefore the respondents'-plaintiffs'

land, which are situated on hind side of appellants'

land, are entitled to use the said cart road.

8. On these set of reasonings the Appellate

Court has reversed the finding of the Trial Court and

proceeded to allow the appeal and consequently suit is

decreed. It is against this divergent finding,

appellants-defendants are before this Court.

9. Heard learned counsel appearing for the

appellants-defendants and learned counsel appearing

for the respondents-plaintiffs. Perused the judgment

under challenge and also examined the Trial Court

records.

10. Respondents-plaintiffs are asserting that

they have got easementary right by way of

prescription. The sketch furnished by the parties

would play a crucial role in the present case on hand.

I have given my anxious consideration to the plaint

sketch produced along with plaint and also the village

map which is annexed along with written statement. If

these two sketches are meticulously examined, even

in the village map it is forthcoming that there is a cart

road situated in between Sy.Nos.44, 45 43 and

Sy.Nos.61 & 63. This Court was also take judicial note

of the fact that the existence of cart road at 'ABCDE'

abutting to appellants-defendants land is also not

seriously disputed. More emphasis is laid on the fact

that respondents-plaintiffs have an alternative road. If

both these sketches are meticulously examined, this

Court would find that the respondents'-plaintiffs' land

which is situated on hind side has an access through

the cart road which connects Laxmeshwar-Battur main

road.

11. The contention of the appellants-

defendants that the respondents-plaintiffs have got

alternative road and they have to take a round by

travelling a distance of two kilometers cannot be

examined, when easementary right by way of

prescription is sought. What the Trial Court has

virtually lost sight of the fact that easement by

prescription over disputed land cannot not be

negatived on mere existence of an alternate way. The

respondents-plaintiffs are asserting enjoyment of suit

cart road through easementary right by way of

prescription.

12. The Appellate Court on re-appreciation of

ocular and documentary evidence coupled with the

materials placed on record come to conclusion that

there is evidence to prove easement by way of

prescription. The Appellate Court being a final fact

finding authority has also found that the respondents-

plaintiffs are using the suit cart road by way of right,

peacefully and openly.

13. This Court has also taken judicial note of

the fact that it is quite common feature in Indian

villages that the adjoining land owners generally pass

over the path way or cart road situated between two

fields. The right of way can only be permissive. But if

such right is enjoyed continuously more than for a

period of 20 years against the interest of true owner,

the necessary ingredients contemplated under Section

15 of Indian Easementary Act stands fulfilled and

therefore respondents-plaintiffs are entitled to claim

easement by way of prescription. There cannot be any

doubt that the easement is a right and the same is not

at mercy. The only defence set up by appellants-

defendants is that plaintiffs have an alternate road

and the same is also found in the village map

produced along with written statement. In absence of

specific denial of existence of cart road, this Court is

of the view that the Appellate Court is justified in

granting relief of declaration, declaring that the

respondents-plaintiffs have got right of easement by

way of prescription over the suit cart road which is in

existence on the western rise of appellants'-

defendants' property.

14. The judgment and decree passed by the

Appellate Court is in accordance with law and the

same is based on legal evidence placed on record. The

only defence set up by appellants-defendants is that

the respondents-plaintiffs have an alternate road. In

that view of the matter no substantial question of law

arises. The appeal is devoid of merits. Accordingly the

same stands dismissed.

SD/-

JUDGE EM