Shankarayya S/O Channayya ... vs Parawwa W/O Shidramayya ...
2022 Latest Caselaw 2978 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH
      DATED THIS THE 22ND DAY OF FEBRUARY, 2022
                        BEFORE
 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
               R.S.A.NO.5297/2012 (INJ)
BETWEEN

SHANKARAYYA
AGE: 77 YEARS,
S/O CHANNAYYA HIREMATH,
OCC: DOCTOR,
R/O ANNADANESWAR NAGAR,
MUNDARGI, DIST: GADAG-582101.
                                          ... APPELLANT
(BY SRI J.S.SHETTY & ASSOCIATES)

AND

1.    SMT.PARAWWA
      AGE: 67 YEARS,
      W/O SHIDRAMAYYA ALAWANDIMATH,
      OCC: HOUSEHOLD WORK,
      R/O HUDCO COLONY, MUNDARGI,
      TQ: MUNDARGI, DIST: GADAG-582101.

2.    SMT.DRAXAYANI
      AGE: 44 YEARS,
      W/O RUDRAYYA HIREMATH
      OCC: HOUSEHOLD WORK,
      R/O HIREHANDIGOL, TQ: GADAG,
      PINCODE-582101.

3.    BASAVARAJ
      AGE: 40 YEARS,
      S/O SHIDRAMAYYA ALAWANDIMATH,
      OCC: PRIVATE WORK,
      R/O HUDCO COLONY, MUNDARGI,
      DIST: GADAG-582101.

4.    KOTRAYYA
      AGE: 36 YEARS,
      S/O SHIDRAMAYYA ALAWANDIMATH,
                            2




     OCC: UNEMPLOYED,
     R/O HUDCO COLONY, MUNDARGI,
     TQ: MUNDARGI, DIST: GADAG-582101.

5.   CHANDRASHEKHARAYA
     AGE: 41 YEARS,
     S/O SHIDRAMAYYA ALAWANDIMATH,
     OCC: MECHANIC,
     R/O ANNADANESHWAR NAGARA,
     MUNDARGI, TQ: MUNDARGI,
     DIST: GADAG-582101.

6.   VEERESH
     AGE: 37 YEARS,
     S/O SHIDRAMAYYA ALAWANDIMATH,
     OCC: PRIVATE SERVICE,
     R/O ANNADANESHWAR NAGARA,
     MUNDARGI, TQ: MUNDARGI,
     DIST: GADAG-582101

7.   SHIVAMURTHAYYA
     AGE: 29 YEARS,
     S/O SHIDRAMAYYA ALAWANDIMATH,
     OCC: ELECTRICIAN,
     R/O ANNADANESHWAR NAGARA,
     MUNDARGI, TQ: MUNDARGI,
     DIST: GADAG-582101.

8.   SMT.NEELAMMA
     AGE: 70 YEARS,
     W/O TOTAYYA CHURCHALAMATH
     OCC: HOUSEHOLD WORK,
     R/O ANNADANESHWAR NAGARA,
     MUNDARGI,TQ: MUNDARGI,
     DIST: GADAG-582101.
                                         .... RESPONDENTS
(BY SRI RAMACHANDRA A.MALI, ADV.)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 08.12.2011 PASSED
IN R.A.NO.68/2007 ON THE FILE OF LEARNED CIVIL JUDGE
(SR.DN.),GADAG, CONFIRMING THE JUDGMENT AND DECREE
DATED 22.06.2007 IN O.S.NO.126/2002 BY THE LEARNED CIVIL
JUDGE (JR.DN.), MUNDARAGI, IN THE INTEREST OF JUSTICE
AND EQUITY.
                             3




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


                     : JUDGMENT :

The captioned regular second appeal is filed by

the unsuccessful plaintiff who is questioning

concurrent judgments and decree of the Courts below,

wherein the suit filed by the plaintiff seeking relief of

declaration that he is having easementary right to use

suit passage, is dismissed by both the Courts.

2. For the sake of convenience, the parties will

be referred to as per their ranking before the Trial

Court.

3. The facts leading to the above said case are

as under:

4. The plaintiff claims that he is the owner of

the property bearing T.P.C.No.1904/1688. The plaintiff

is claiming easementary right in respect of a passage

situated on western side of his property. The plaintiff's

contention is that, between the properties owned by

plaintiff and defendants, there is a passage and the

same is used by plaintiff for ingress and egress. The

property of the 1st defendant is situated on the

western side bearing T.P.C.No.1905/1689, whereas

defendant Nos.1 to 4 property is situated on northern

side exactly behind the property owned by defendant

No.5. The plaintiff claims that the door of his house is

facing west and he has fixed doors towards western

side of his residential house and therefore he has been

using the suit way for ingress and egress and has

been enjoying air and light from the western side. In

the hand sketch map annexed to the plaint, the

existing suit way is showing by letters AFGI and the

plaintiff claims that the width of the suit way is around

8 feet. It is specific case of the plaintiff that he

constructed a residential house way back in the year

1972 and has been using this suit way since then

which is well within the knowledge of defendants and

also their vendors. The plaintiff claims that he has

been using suit passage and the same is being

enjoyed as an easement without interruption for

statutory period. On these set of pleadings, the

plaintiff has filed the present suit seeking declaration

to the effect that he is having easementary right to

use the suit way and sought for consequential relief of

injunction.

5. On receipt of summons, the defendants

appeared and contested the proceedings. The 1st

defendant filed written statement and stoutly denied

the entire averments made in the plaint. The 1st

defendant has specifically contended that the plaintiff

is using the door which is situated on the southern

side. It is also contended that the plaintiff's residential

house is facing south and there is main public road on

the southern side and the same is depicted in the

hand sketch map produced by plaintiff himself.

6. The 1st defendant has also seriously

objected in regard to the maintainability of the present

suit. The 1st defendant has contended that plaintiff

filed a suit for declaration and injunction in

O.S.No.105/2002 and in the said suit the plaintiff

claim that he is owner of the suit passage on the basis

of a gift deed executed by one Sumangala Devi. The

plaintiff having withdrawn the earlier suit cannot

maintain the present suit on the same cause of action.

7. The plaintiff to substantiate his claim led in

ocular evidence by examining himself as PW.1 and

adduced ocular evidence of one independent witness

and produced documentary evidence vide Exs.P.1 to

P.12. Whereas, defendants examined three witnesses

and produced rebuttal evidence vide Exs.D.1 to D.8.

8. The Trial Court having meticulously

examined the pleadings and ocular evidence and as

well as documentary evidence adduced by respective

parties, has answered Issue No.1 to 4 in the negative.

The Trial Court has recorded a categorical finding that

the plaintiff has failed to prove that he has been using

AFGI portion for ingress and egress of his residential

house since 1972. The Trial Court has also recorded a

finding that the claim of plaintiff that there is no

alternate way for excess to his house is also not

substantiated and the same was negatived by the Trial

Court. While examining Issue No.2, the Trial Court has

recorded a categorical finding that the plaintiff has

failed to prove that he has acquired easementary right

for AFGH portion by way of prescription and therefore

the Trial court was of the view that the alleged

obstruction is also held to be not proved and same

was answered in the negative.

9. Feeling aggrieved by the judgment and

decree of the trial court, the appellate preferred an

appeal before the first appellate court. The first

appellate court having independently assessed oral

and documentary evidence on record has also taken

note of the cross-examination of plaintiff wherein he

has admitted that his residential house is facing south

and is facing the municipal road which is situated on

the southern side. To counter the plaintiff's case,

defendants have produced copy of the sale deed. The

first appellate court has taken note of the fact

defendants' house on facing east and found that

previous owner of the defendant has left 8 feet width

open space to be used as a passage in the property

bearing CTS No.1905/1689 and 1058/1689A. The

properties which are situated on the western side

plaintiffs property were admittedly not owned by one

common owner. First appellate court has found that

one Sumangaladevi and another Limbekai were found

to be the owners. Therefore, the first appellate court

having examined these material evidence on record

was of the view that the open space left by the

defendants vendor was infact for only use and

enjoyment of their respective houses since defendants

properties are east facing. On re-appreciation, the first

appellate court was of the view that the reasons and

conclusions arrived at by the trial court is based on

legal evidence adduced by the defendants and

therefore, the first appellate court was not inclined to

interfere with the judgment and decree of the trial

court. Consequently, the appeal was dismissed.

10. It is against these concurrent judgments

and decree of the courts below, the plaintiff is before

this court.

11. Heard the learned counsel for the appellant,

learned counsel for the respondents and perused the

judgments under challenge.

12. While hearing this matter, learned counsel

appearing for the plaintiff placed on record the

admitted sketch which is annexed to the plaint. On

bare perusal of the sketch which is part of the records,

this court would find that plaintiff's residential house is

facing south and it is not in dispute that plaintiff has

fixed the door facing south and on the southern side of

this residential house owned by the plaintiff, there is a

public road. Now the question that needs to be

examined by this court, if plaintiff has constructed his

house without leaving any setback in 1972, can he

claim easementary right by way of prescription in the

passage, which is part and parcel of defendants

property. My answer is no to the said question. If

plaintiff's house is facing south and there is a road,

then it is quite evident that plaintiff has an access for

ingress and egress. Though present suit is filed by

contending that he has no alternate road and has no

access to his residential house, the claim made by the

plaintiff is frivolous. The material on record would

clearly indicate that defendants' properties are facing

east. The property owned by defendant Nos.1 to 4 is

situated on the hind side where as defendants

residential house owned by defendant No.5 is on the

southern side and is facing south road. Therefore,

what can be gathered is residential house owned by

defendant Nos.1 to 4 is situated on the hind side.

Therefore, the vendors of defendants have mentioned

this common passage so as to provide access to the

property owner, i.e., defendant Nos.1 to 4 whose

residential house is situated on the hind side. If

plaintiff has not left setback while constructing in his

property, this court is unable to understand as to how

he can assert easmentary right in an open space

owned by adjoining owner, more particularly, when

the properties are residential houses. If the house of

plaintiff is facing south and he has already fixed a

door, which has direct access to the southern public

road, I am of the view that both the courts below were

justified in declining to grant any relief in favour of the

plaintiff.

13. From the records, it is also forthcoming

that plaintiff did filed a suit seeking relief of

declaration and injunction in O.S.No.105/2002. The

said suit was withdrawn by plaintiff herein. Even if

liberty is granted, it was incumbent on the part of the

plaintiff to produce copy of plaint which was filed in

the earlier suit bearing O.S.No.105/2002. The counsel

appearing for the defendants has countered the claim

of plaintiff and has specifically contended that earlier

suit was filed for relief of declaration claiming that one

Sumangaladevi has gifted suit passage and therefore,

consequential relief of injunction as sought asserting

title over the suit passage.

14. Now the present suit is filed seeking

easmentary right. Be that as it may, if the plaintiff has

constructed a residential house without leaving any

setback on western and eastern side, then he cannot

have any grievance and complain that he has no

access to his house on the western side. Plaintiff left

setback on northern side, but has strangely not opted

to leave setback on the western side, which was infact

relevant, as there are adjoining properties on the

western side. If he has not left any setback, then he

cannot lay a claim over the suit passage which is part

and parcel of defendants property. Both the courts

below have meticulously dealt with this aspect and

have declined to grant any relief. The concurrent

finding recorded by the courts below is based on

clinching rebuttal evidence on record.

15. No substantial question of law arises for

consideration in the present case on hand.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE EM/MBS