Karnataka High Court
Sri Tarehalli Hanumanthappa vs Smt Sulochanamma on 18 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A.No. 1624/2006 (DEC-INJ)
BETWEEN:
1. SRI. TAREHALLI HANUMANTHAPPA,
S/O. TAREHALLI RANGAIAH,
AGED ABOUT 44 YEARS.
2. SRI. TAREHALLI OBAIAH,
SON OF TAREHALLI RANGAIAH,
AGED ABOUT 40 YEARS.
BOTH ARE RESIDING AT RANGAPURA
VILLAGE, JAGALUR TALUK,
DAVANAGERE DISTRICT - 583 101.
... APPELLANTS
(BY SRI. P.M. SIDDAMALLAPPA, ADVOCATE)
AND:
1. SMT. SULOCHANAMMA,
D/O. LATE B.D. HANUMANHAREDDY,
AGED ABOUT 54 YEARS.
2. SRI. P. HANUMANTHAPPA,
S/O. JAMAPURADA PAPAIAH,
AGED ABOUT 46 YEARS.
3. SMT. SUMITHRAMMA,
D/O. VENKATESH REDDY,
AGED ABOUT 46 YEARS.
2
ALL ARE RESIDING AT RANGAPURA
VILLAGE, JAGALUR TALUK,
DAVANAGERE DISTRICT - 583 101.
... RESPONDENTS
(R1 AND R3 - SERVED AND UNREPRESENTED;
APPEAL AGAINST R2 IS ABATED V/O DT.7.7.2017)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 25.07.2005
PASSED IN RA NO.102/2002 ON THE FILE OF THE I
ADDITIONAL CIIVL JUDGE (SR. DN.) DAVANAGERE
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 14.03.2002 PASSED IN OS
NO.233/2000 ON THE FILE OF THE CIVIL JUDGE (JR. DN.)
AND JMFC, JAGALUR.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a second appeal by the defendants.
2. The respondents though served have
remained unrepresented.
3. The defendants had instituted a suit seeking
for a declaration that they were having a right of
easement of necessity over 'ABCD' cart-track in Re. Sy
Nos.25 and 26 of Rangapura Village to reach their lands
bearing Survey Nos.14, 15/P, 12/P and 13/P of
Papadevarahalli Village which belongs to them.
4. They stated that the defendants were the
owners of the lands in Re. Sy. Nos.25 and 26 of
Ranagapur Village and there existed a road leading from
Jagalur to Kyasanahalli Village running south-north
abutting to the lands of the defendants. It was stated to
the west of the defendants lands, the lands of the
plaintiffs were situated and in order to access their lands,
they had to use the land of the defendants.
5. They contended that a portion marked at
'ABCD' cart-track was a necessary easementary pathway
which had been in existence from time immemorial and
they were entitled for use of the said cart-track for the
beneficial enjoyment of their lands. They pleaded that
there was no alternative cart-track to their land and the
defendants were causing obstruction to the usage of the
said cart-track.
6. The defendants entered appearance and
contested the suit.
7. They stated that there was no recognized
pathway/cart-tack passing through their lands through
which, the plaintiffs lands could be accessed. It was
stated that the lands of the plaintiffs were situated in
Papadevarahalli village whereas, the lands of the
defendants were in Rangapura village.
8. It was stated that the plaintiffs did not have
any easementary right and the pathway running Re. Sy.
Nos.25 and 26 of Rangapura village had been made for
their exclusive use and in the revenue records, there was
no record of a pathway being in existence.
9. The defendants denied the assertion of the
plaintiffs that they had consented for use of their land by
the plaintiffs to be used a cart-track and to transport
their agricultural equipments.
10. The Trial Court on appreciation of the
evidence adduced before it, came to the conclusion that
the plaintiffs had not proved that they had any
easementary right to use the cart-track 'ABCD' in Re. Sy.
Nos.25 and 26 of Rangapura village and it accordingly
dismissed the suit.
11. The plaintiffs being aggrieved, preferred an
appeal.
12. The Appellate Court on re-appreciation of the
evidence, came to the conclusion that the judgment and
decree of the trial Court was liable to be interfered with
as the evidence on record indicated that the plaintiffs
had no other alternative way to go to their lands except
the land bearing Re. Sy. Nos.25 and 26 of Rangapura
village, which belonged to the defendants and therefore,
they had acquired a right of easement of necessity over
the pathway.
13. The Appellate Court accordingly declared that
the plaintiffs had a right of easement of necessity over
the portion marked at 'ABCD' cart-track in Re. Sy.
Nos.25 and 26 of Rangapura village to reach their land in
Survey Nos.14, 15/P, 12/P and 13/P of Papadevarahalli
village. The Appellate Court, accordingly, allowed the
appeal and decreed the suit.
14. On 18.08.2010, this appeal was admitted to
consider the following substantial question of law:
"Whether in the facts and circumstances
of the case, the Appellate Court was justified in
holding that the plaintiffs i.e., respondents
herein are having right of easement of
necessity over 'ABCD' Cart Track in Survey
Nos.25 and 26 of Rangapura Village to reach
their lands in Survey Nos.14, 15(p), 12(p) and
13(p) of Papadevarahalli Village?"
15. An easement of necessity is described under
Section 13 of the Indian Easements Act, 1882 and would
be arise in three situations.
16. Firstly, where one person transfers or
bequeaths immovable property to another, if an
easement in other immovable property of the transferor
or testator is necessary for enjoying the subject of the
transfer or bequeath, the transferee or legatee shall be
entitled to such easement.
17. Secondly, when one person transfers or
bequeaths immovable property to another, if an
easement in the subject of the transfer or bequeath is
necessary for enjoying other immovable property of the
transferor or testator, the transferor or the legal
representative of the testator shall be entitled to such
easement.
18. Thirdly, where a partition is made of the joint
property of several persons, if an easement over the
share of one of them is necessary for enjoying the share
of another, the latter shall be entitled to such easement.
19. Thus, in order to qualify as an easement of
necessity, there should fundamentally be a transfer of
property from one person or a bequest to another and as
a result of the transfer, an easement in the immovable
property of the transferor or testator would be necessary
for the enjoyment of the property by the transferee.
20. In the instant case, it is not the case of the
plaintiffs that there was a transfer or bequest of an
immovable property and as a result of transfer, they
were also entitled to the easement available in the
immovable property of the transferor. It is therefore
clear that there can be no easement of necessity as
claimed by the plaintiffs in the plaint.
21. The defendants put-forth the contention that
the village map did not indicate the existence of any
cart-track in Re. Sy. Nos.25 and 26 of Rangapura
Village. In the absence of a demarcated pathway or cart-
track shown in Sy. Nos. 25 and 26 of the village map,
the plaintiffs cannot claim that they would be entitled to
use any portion of Re. Sy. Nos.25 and 26 of Rangapura
Village to reach their lands.
22. It is to be stated here that the owner of one
land would not have right of way over another's land by
way of an easement of necessity. It is therefore clear
that the plaintiffs could not claim that they had an
easement of necessity or right of way in Re. Sy. Nos.25
and 26 of Rangapura Village belonging to the
defendants.
23. Consequently, the substantial question of law
is answered in favour of the appellants and against the
respondents - plaintiffs.
24. The second appeal is allowed and
consequently, the suit of the plaintiffs is dismissed.
Sd/-
JUDGE
VBS
