Ramadas Devanna Naik vs Seetaram Narayan Naik
2022 Latest Caselaw 3222 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 24TH DAY OF FEBRUARY, 2022

                        BEFORE

   THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.S.A.NO.5341 OF 2013(DEC)

BETWEEN:

1. RAMADAS DEVANNA NAIK
AGED: 56 YEARS, OCC: AGRICULTURIST
R/O: TENKANAKERI, TALUK: ANKOLA
UTTAR KANNADA DISTRICT-581314

2. ANANTH DEVANNA NAIK
AGED: 54 YEARS, OCC: AGRICULTURIST
R/O: TENKANAKERI, TALUK: ANKOLA
UTTAR KANNADA DISTRICT-581314
DELETED & MADE AS RESPONDENT NO.4.
                                          ...APPELLANTS
(BY SRI.ANAND DESAI, ADVOCATE FOR
SRI.J.S.SHETTY, ADVOCATE)
AND:

1. SEETARAM NARAYAN NAIK
AGED 73 YEARS,
R/O: TENAKANAKERI, TALUK ANKOLA
UTTAR KANNADA DISTRICT-581314

2. GANAGA D/O NARAYAB NAIK
AGED: 64 YEARS,
R/O: TENAKANAKERI, TALUK ANKOLA
UTTAR KANNADA DISTRICT-581314
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3. GULABI D/O NARAYAN NAIK
SINCE DECEASED BY HER LRs

3(A). CHANDRAKANT S/O NARAYAN NAIK
AGED: 51 YEARS,
R/O: BABRUWADA, TALUK ANKOLA
UTTAR KANNADA DISTRICT-581314

3(B). VANDANA D/O NARAYAN NAIK
AGED: 36 YEARS,
R/O: BABRUWADA, TALUK ANKOLA
UTTAR KANNADA DISTRICT-581314

3(C). ANITHA D/O NARAYAN NAIK
AGED: 32 YEARS,
R/O: BABRUWADA, TALUK ANKOLA
UTTAR KANNADA DISTRICT-581314

4. ANANTH DEVANNA NAIK
AGED: 56 YEARS, OCC: AGRICULTURIST
TALUK: ANKOLA, DISTRICT: UTTAR KANNADA -581314

                                           ...RESPONDENTS

(BY SRI.HAREESH.S.NAYAK, ADVOCATE FOR
SRI.S.H.NAIK, ADVOCATE FOR R1 & R3(A-C);
R2 & R4 SERVED)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT & DECREE DTD: 27/11/2012 PASSED
IN R.A.NO.04/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE,
KUMTA, ITINERARY SITTING AT ANKOLA, DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT DTD: 07/12/2007 AND
THE DECREE PASSED IN O.S.NO.26/2004 ON THE FILE OF THE
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CIVIL JUDGE (JR.DN.) ANKOLA, DISMISSING THE SUIT FILED
FOR DECLARATION.

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

                               JUDGMENT

The captioned regular second appeal is filed by the

unsuccessful appellants-plaintiffs, wherein both the Courts have

dismissed the suit filed by the present appellants-plaintiffs

herein, who had sought relief of declaration by way of easement

of prescription over the suit schedule property bearing

Sy. No.218/3.

2. The appellants-plaintiffs herein claimed that they are in

possession of ABC portion in Sy. No.218/3 since the time of their

ancestors. The appellants-plaintiffs further claimed that they are

using the suit ABC portion to have access to the southern side

road of the said land. The appellants-plaintiffs further claimed

that on 06.12.2003, respondent No.1-defendant No.1 got

measured the land bearing Sy. No.218/3. In the said survey,

it was found that ABC portion measuring 2 guntas is part and

parcel of Sy. No.218/3, which is owned by respondents-

defendants. The present suit is filed seeking relief of declaration

and for consequential relief of injunction by claiming that they

have got easementary right in the disputed suit land measuring

2 guntas and therefore, appellants-plaintiffs claimed that since

the time of their ancestors, they have been enjoying the suit AB

portion for more than twenty years openly to the knowledge of

the respondents-defendants and therefore, claimed easement by

way of prescription.

3. The respondents-defendants contested the proceedings

by filing written statement and stoutly denied the entire claim of

the appellants-plaintiffs. The respondents-defendants claimed

that Sy. No.218/3 is their ancestral property and they are in

exclusive possession.

4. Both the parties have lead in evidence and the Trial

Court having examined the materials on record has recorded a

categorical finding that appellants-plaintiffs have failed to prove

that they have acquired right of easement by way of prescription

over suit ABC portion. While dealing with additional issue No.1,

the Trial Court recorded a categorical finding that the

respondents - defendants have succeeded in establishing title

over 2 guntas of land and therefore, the Trial Court was of the

view that respondents - defendants are entitled to seek

possession of the encroached portion by the appellants-plaintiffs

and consequently, the Trial Court proceeded to allow the counter

claim. The said judgment and decree of the Trial Court is

confirmed by the First Appellate Court. It is against these

concurrent judgments and decrees of the Courts below, the

unsuccessful appellants-plaintiffs are before this court.

5. Heard learned counsel appearing for the appellants-

plaintiffs and learned counsel appearing for the respondents -

defendants.

6. I have given my anxious consideration to the Trial

Court records as well as sketch, which is annexed to the plaint.

7. Sy No.218/2 is owned by the appellants - plaintiffs

which is situated towards the western side of the property owned

by the respondents-defendants bearing Sy. No.218/3. To the

south of the lands owned by the appellants - plaintiffs and

respondents - defendants, there is a road which connects to the

western side main road. Therefore, what can be gathered from

the sketch is that both lands are facing towards south road,

which is referred in vernacular as (oni). Both the courts having

meticulously examined the materials on record more particularly

Ex.P.4, which is a survey report, have come to the conclusion

that the encroached portion, which is found to be in possession

of the appellants - plaintiffs, is actually owned by the

respondents - defendants and therefore, the report clearly

indicates that the plaintiffs have encroached over 2 guntas of

land, which is actually owned by respondents - defendants. The

material on record also indicates that the respondents-

defendants have succeeded in eliciting in the cross-examination

that encroached portion i.e., suit ABC portion measuring 2

guntas is part and parcel of Sy. No.218/3 and this fact is

admitted by the appellants-plaintiffs, who is examined as P.W.1

at para 14. If these two documents are taken into consideration,

then this Court is of the view that both the courts were justified

in denying the relief of declaration sought by the appellants-

plaintiffs in the present suit.

8. The appellants - plaintiffs are asserting right of usage

of the suit schedule property on the ground that they have

perfected the right by way of prescription by using the suit

property for the last 20 years without any interruption. But the

materials on record clearly indicate that the appellants -

defendants have high handedly encroached over 2 guntas of

land, which is lawfully owned by the respondents-defendants.

Therefore, the short question that needs to be examined by this

Court is that if the appellants - plaintiffs have illegally

encroached over two guntas of land owned by the respondents-

defendants, can they impose an easement on the lawful owners

i.e.,. respondents-defendants. To assert right of way, the

adjoining owner has to establish that the right of way or any

other easement has been peacefully and openly enjoyed without

any interruption for a period of 20 years. If the appellants-

plaintiffs have encroached over defendants land, then this Court

is of the view that they cannot impose easement on the

respondents- defendants. The material on record would clearly

reveals that appellants-plaintiffs have illegally encroached over

the appellants-defendants property. The doctrine of prescription

is applied in law and the reason to apply the said doctrine is to

do all it can to put quites to title so as to avoid litigation and

preserve the security of property. Therefore, the person

asserting right by way prescription has to demonstrate and

establish that he is under uninterrupted enjoyment and the same

amounts to an easement and therefore, if these ingredients are

made out, a presumption arises in favour of a person asserting

easement right and in such cases, it is reasonably possible to

refer such a right, which has a lawful origin. It is only proof of

uninterrupted enjoyment acquiesced by the servient owner for a

period exceeding 20 years was conceded to raise a presumption

of grant sufficiently decisive for the Court to act upon unless

contradicted or explained by proof of facts legally inconsistent

with the presumption. The above said principles are not

applicable to the present case on hand. Firstly, the appellants -

plaintiffs have failed to establish that they have got a right of

way in the respondents-defendants land. The sketch furnished

by the appellants - plaintiffs themselves reveals that there is a

small internal approach road situated on the southern side of the

appellants - plaintiffs property as well as respondents -

defendants property. Therefore, the appellants - plaintiffs

cannot enjoy their entire property and then, claim portion in the

adjoining property so as to have access to the southern side

road. The material on record does not indicate that there is an

interruption at the hands of the lawful owner. There cannot be

interruption in the present case on hand as the appellants-

defendants have illegally encroached over respondents-plaintiffs

property and therefore, this Court is of the view that they cannot

impose easement. All these relevant factors are exhaustibly

dealt by both the courts and they have rightly declined to grant

any relief to the appellants-plaintiffs. The ground urged in the

present appeal does not give rise to any substantial question of

law and the said ground would not also displace the conclusions

and the findings recorded by the Courts below and no substantial

question of law arises in the present case on hand.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

NBM