Raghu Ganesh Naik vs Shivanand Narayan Naik
2022 Latest Caselaw 1328 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

            DATED THIS THE 31ST DAY OF JANUARY 2022

                            BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                   RSA.NO.5173/2012 (DEC/INJ)
BETWEEN

1.    RAGHU GANESH NAIK
      AGE: MAJOR, OCC: AGRI.,
      R/O. KUMBARKERI, KADWAD,
      TQ : KARWAR
      DIST: UTTAR KANNADA.

2.    SUDHAKAR GANESH NAIK
      AGE : MAJOR, OCC : AGRIL.,
      R/O. KUMBARKERI, KADWAD,
      TQ : KARWAR
      DIST: UTTAR KANNADA.


                                                 ... APPELLANTS

(BY SRI.J.S.SHETTY ASSOCIATES & SRI.DEEPAK S.SHETTY, ADVS.)

AND

1.    SHIVANAND NARAYAN NAIK
      AGE : MAJOR, OCC: AGRIL.,
      R/O. KUMBARKERI, KADWAD
      TQ : KARWAR.
      DIST: UTTAR KANNADA.

2.    SANTHOSH NARAYAN NAIK
      AGE : MAJOR, OCC: AGRI.,
      R/O. KUMBARKERI, KADWAD,
      TQ: KARWAR.
      DIST: UTTAR KANNADA.
                                  2




3.   SMT.DURGABAI SRIKANT NAIK
     AGE : MAJOR, OCC: AGRIL.,
     R/O. KUMBARKERI, KADWAD
     TQ : KARWAR.
     DIST: UTTAR KANNADA.

4.   ULLAS KRISHNA NAIK
     AGE: MAJOR, OCC : AGRIL.,
     R/O. KUMBARKERI, KADWAD
     TQ.KARWAR
     DIST: UTTAR KANNADA.

5.   RAMABAI KRISHNA NAIK
     AGE: MAJOR, OCC: AGRIL.,
     R/O. KUMBARKERI, KADWAD
     TQ : KARWAR.
     DIST: UTTAR KANNADA.

6.   VASUDEV BABU LNAIK
     AGE: MAJOR, OCC: AGRIL.,
     R/O. KUMBARKERI, KADWAD,
     TQ : KARWAR,
     DIST: UTTAR KANNADA.

7.   GANAPAI BABU NAIK
     AGE: MAJOR, OCC: AGRI.,
     R/O. KUMBARKERI, KADWAD,
     TQ : KARWAR, DIST: UTTAR KANNADA.
                                                ... RESPONDENTS
(BY SRI.SANGRAM S.KULKARNI, ADV. FOR
   SRI.V.P.KULKARNI, ADV. FOR R1-R3, R6 & R7,
   R5 DECEASED AND R4 IS LR OF DECEAESD R5)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
THAT THE JDUGMENT AND DECREE DATED 24.10.2011 PASSED IN
R.A.NO.23/2005 BY THE ADDITIONAL CIVIL JUDGE (SR.DN.) KARWAR
AT KARWAR CONFIRMING THE JUDGMENT AND DECREE DATED
20.06.2005 PASSED BY CIVIL JUDGE (JR.DN.) KARWAR AT KARWAR
IN O.S.NO.5/1994 MAY KINDLY BE SET ASIDE BY ALLOWING THIS
APPEAL.

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




                           JUDGMENT

The captioned regular second appeal is filed by

unsuccessful defendants wherein both the courts below

decreed the suit filed by respondents/plaintiffs declaring

that respondents/plaintiffs have acquired right by way of

easement of necessity in Sy.No.115/1D of Kadwad village

as shown in suit hand sketch and consequently both the

courts below have granted perpetual injunction thereby

restraining the present appellants/defendants from

disturbing peaceful enjoyment and usage of suit path.

2. Facts leading to the case are that:

Respondents/plaintiffs filed a suit for declaration

claiming easementary right and consequential relief of

injunction. Respondents/plaintiffs specifically contended

that suit land bearing Sy.No.115 was originally owned by

one Ghanshyam, which was cultivated by ancestors of

plaintiffs and defendants. Respondents/plaintiffs further

contended that there is residential house in the said land.

Respondents/plaintiffs further contended that suit land was

subsequently divided into separate pot hissas based on

actual possession. Based on actual possession, the parties

submitted form No.7 seeking grant of occupancy right and

the Land Tribunal has conferred occupancy rights.

Respondents/plaintiffs specifically contended that

appellants/defendants were granted occupancy rights to an

extent of 33 guntas in Sy.No.115/1D.

Respondents/plaintiffs have specifically pleaded that

Sy.No.115/1D which is divided into pot hissa constitutes

eastern half of entire suit survey number, which is

surrounded by paddy field. Respondents/plaintiffs further

claimed that there is a Karwad/Kadwad public road.

Respondents/plaintiffs have taken a specific contention that

since the time of their ancestors they are using pathway,

which is depicted in the hand sketch annexed along with

the plaint. Respondents/plaintiffs specifically contended

that there is pathway of four feet which runs across

Sy.No.63 from South-East corner of Sy.No.63 and

thereafter it passes through boundary line of Sy.Nos.115

and 114. On these set of pleadings, respondents/plaintiffs

filed a suit asserting easmentary right over the suit

pathway.

3. The appellants/defendants on receipt of

summons contested the proceedings and stoutly denied the

entire averments made in the plaint and specifically

contended that there is a panchayat road on the extreme

south of Sy.No.115/1D and there is also separate pathway

on the western side of boundary of Sy.No.115/1D.

Therefore, appellants/defendants contended that these two

alternate roads are being used by respondents/plaintiffs

and as such, they are not entitled for relief of declaration of

easmentary right as claimed in the plaint.

4. Both the parties to substantiate their claim let in

oral and documentary evidence. Respondents/plaintiffs

examined two witnesses and relied on documentary

evidence vide Exs.P1 to P12. By way of rebuttal evidence,

appellants/defendants examined one witness as D.W.1 and

relied on documentary evidence vide Exs.D1 to D10.

During the pendency of the suit, Commissioner was

appointed and based on memo of instructions, he visited

the spot and submitted his report. The trial court having

assessed oral and documentary evidence and also

Commissioner's report has come to the conclusion that

respondents/plaintiffs have succeeded in establishing

existence of pathway and that they have been using it

since the time of their ancestors. However, the claim made

by respondents/plaintiffs in regard to alleged existence of

public well in Sy.No.115/1D was negatived by the trial

court. The trial court having referred to the Commissioner's

report has recorded a categorical finding that evidence on

record clearly demonstrate existence of pathway.

Therefore, the trial court was of the view that

respondents/plaintiffs are entitled to use the pathway and

therefore, they have got easmentary right in the suit

schedule property. Accordingly, proceeded to grant the

relief of declaration by holding that respondents/plaintiffs

have got easmentary right by way of necessity to use the

pathway and consequently granted perpetual injunction.

5. The present appellants/defendants feeling

aggrieved by the judgment and decree of the trial court

preferred an appeal in R.A.No.23/2005. The first appellate

court having independently assessed oral and documentary

evidence has meticulously examined the Commissioner's

report and other supporting documents placed on record by

respondents/plaintiffs. The first appellate court having

independently assessed oral evidence on record has

meticulously discussed at para 16 of the judgment

indicating the existence of pathway. The first appellate

court was of the view that present appellants/defendants

even after remand have failed to establish the existence of

alternate way. On these set of reasoning, the first appellate

court proceeded to dismiss the appeal.

6. Heard the learned counsel for the appellants,

learned counsel for the respondents and perused the

judgments under challenge.

7. What emerges from the records is that, suit land

bearing Sy.No.115 was one compact land. The parties to

the suit were admittedly tenants and there was partition

based on their actual enjoyment and cultivation. Therefore,

in terms of actual possession, hissa proceedings have

taken place and sub-division was effected by the authority.

Both the courts below have concurrently held that suit land

admittedly was one single unit and on account of sub-

division, the respondents/plaintiffs who are adjoining

owners are entitled to use the pathway to have excess to

the main road. The Commissioner on local inspection has

submitted his report and the same depicts existence of

pathway in the land bearing Sy.No.115/1D. Both the courts

below have concurrently held that respondents/plaintiffs

are entitled to use suit pathway. Both the courts below

have also taken note of the fact that appellants/defendants

have not contested the Commissioner report by filing

objections. Both the courts have found that

appellants/defendants have not cross-examined the

Commissioner. Therefore, the material on record coupled

with the Commissioner report clearly depicts the existence

of suit pathway.

8. Though the counsel for appellants/defendants

would vehemently argue and contend before this court that

Commissioner report is infact in his clients favour,

however, the said contention cannot be acceded to. The

materials on record coupled with the Commissioner report

clearly establish the existence of pathway. The

appellants/defendants have come to the court with a

specific stand that respondents/plaintiffs have two

alternative roads. Having taken such a contention, it was

equally incumbent on the part of the appellants/defendants

to discharge their initial burden by producing clinching

rebuttal evidence to demonstrate the existence of

alternative road. The first appellate court infact has taken

judicial note of the material fact that even after remand by

the first appellate court, the present appellants/defendants

have not chosen to lead further evidence to prove the

existence of alternative road. Therefore, by placing reliance

on the evidence adduced by respondents/plaintiffs coupled

with the Commissioner's report, both the courts below

have come to the conclusion that respondents/plaintiffs

have easmentary right by way of necessity.

9. From the material on record, it is forthcoming

that separate pot hissas are formed in Sy.No.115. It is also

forthcoming from the records that occupants of Sy.No.115

were conferred with occupancy rights by the Land Tribunal.

Therefore, there are various sub-divisions in Sy.No.115. If

Sy.No.115 originally was one single compact and if there

are pot hissas on account of adjudication of claim of

occupants in Sy.No.115, then the doctrine of implied grant

in the present case on hand is squarely applicable. Both the

courts below have recorded a concurrent finding of fact

that plaintiff cannot use his land i.e., dominant tenement

unless he is given an access through the suit pathway. The

Commissioner report coupled with other clinching evidence

clearly establishes the existence of a pathway. In the

present case on hand, both the courts below have

concurrently held that there is severance of tenement and

therefore, I am of the view that on account of severance of

tenement, the easement that arises are easement of

necessity or continuous or apparent easements, which are

necessary for reasonable enjoyment of the property

granted. The clinching evidence on record adduced by

respondents/plaintiffs clearly establishes that all the

owners of pot hissas in Sy.No.115 have been using the suit

pathway continuously and easement in the present case on

hand has arisen on account of severance of tenement and

therefore, all the holders of sub-division survey numbers

have retained their right to use the suit pathway and

therefore, they are entitled to use the suit pathway to the

extent which was enjoyed before Sy.No.115 was further

sub-divided on account of grant of occupancy rights by the

Land Tribunal to the various applicants including the

plaintiffs herein.

10. Therefore, this court under Section 100 of CPC

cannot re-appreciate the evidence on record. If the

existence of pathway is proved and both the courts below

have concurrently held that respondents/plaintiffs using the

pathway since the time of their ancestors, this court cannot

venture into re-appreciate the entire evidence on record

and also the Commissioner's report by having recourse to

Section 100 of CPC.

11. No substantial question of law arises for

consideration in the case on hand. Accordingly, the appeal

stands dismissed.

SD/-

JUDGE MBS/-