Haseem Ali S/O Hussain Sab Tamboti vs Parasappa S/O Yellappa ...
2022 Latest Caselaw 3754 Kant

     IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

         DATED THIS THE 5 T H DAY OF MARCH, 2022

                         BEFORE

         THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                R.S.A. NO.1580/2006 (INJ)


BETWEEN


HASEEM ALI ,
S/O HUSSAIN SAB TAMBOTI,
AGED ABOUT 55 YEARS,
OCC: AGRICULT URE,
R/O DAMBAL, T Q: MUNDARAGI,
DIST:GADAG 582118
                                            ...A PPELLANT

(BY SRI.M.C.BANDI &
SRI.DAYANAND BA NDI, ADVS .)


AND


1.     PARASAPPA
       S/O YELLAPPA KUMKUMAGAR
       AGED ABOUT 48 YEARS,
       OCC:A GRICULTURE,

2.     SMT SHAMAVVA
       W/O HAN UMAPPA KUMKUMAGAR
       AGED ABOUT 43 YEARS,
       OCC:HOUS EHOLD,

3.     KUM MANJAVVA
       D/O HAN UMAPPA K UMKUMAGAR
                                 2



4.   KUM YELLAVVA
     D/O HAN UMAPPA K UMKUMAGAR


5.   KUM MALAKKA
     D/O HAN UMAPPA K UMKUMAGAR

     RESP. N OS.3 TO 5 ARE
     MINORS AND ARE
     REP. BY THEIR MOTHER GUARDIAN
     SMT.SHAMAVVA
     W/O HAN UMAPPA KUMKUMAGAR

     ALL ARE RESIDING AT
     DONI, TQ:MUNDARAGI,
     DIST:GADAG,

                                             ...RESPONDENTS

(BY SRI. SHARAD V.MAGADUM, ADV .)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST

THE JUD GMENT A ND DECREE DATED 21.04.2006 PA SSED IN

R.A. N O.88/ 2003 ON THE FILE OF A DDL. CIVIL JUD GE (SR.DN.)

GADAG ALLOWING THE APPEAL AND DISMISSING THE SUIT BY

SETTING   ASIDE    THE   JUDGMEN T    AND   DECREE    DATED

30.06.2003 PASSED IN O.S. NO.85/ 2002 ON THE FILE OF CIVIL

JUDGE (JR.DN .) , M UNDARAGI.


     THIS RSA COMING ON FOR FINAL HEARING THIS DAY,

THE COURT , D ELIV ERED THE F OLLOW ING:
                                     3


                              JUDGMENT

Challenging the judgment and decree dated

21.04.2006 passed by the Additional Civil Judge (Sr.

Dn.), Gadag in R.A. No.88/2003, this second appeal is

filed by the plaintiff - appellant.

2. The appellant was plaintiff in O.S. No.85/2002

and respondent in R.A. No.88/2003 while respondent

Nos.1 to 5 herein were defendants 1 to 5 before Trial

Court and appellants 1 to 5 respectively in R.A.

No.88/2003.

3. For the sake of convenience, parties will

hereinafter be referred to as per their respective ranks

before Trial Court.

4. Appellant - plaintiff filed O.S. No.366/2001

(later renumbered as O.S. No.85/2002) seeking for

declaration of easement rights by prescription over suit

way "MNOP" and as shown in the plaint hand sketch for

consequential relief of injunction restraining defendants

permanently from obstructing and interfering with

plaintiff's use and enjoyment of same. In the plaint, it

was stated that plaintiff was owner of agricultural land

bearing R.S. No.412/5 measuring 4 acres 4 guntas

marked as "CDEF" in plaint hand sketch situated at

Dambal Village in Mundaragi Taluk. It was stated that

defendants were owners of land bearing R.S. No.412/1

measuring 4 acres 1 gunta adjoining plaintiff's land and

situated towards its western side marked with letters

"ABCD". It was asserted that suit way marked with

letters "MNOP" was 15 feet in width. It was stated that

from Dambal main road, plaintiff would proceed from

point "M" towards west to point "N" and thereafter

turning north upto point "O", thereafter turning towards

east and proceed to point "P" to reach his agricultural

land. It was stated that said way was being used by

plaintiff continuously and without any interruption or

obstruction for more than 50 years. Therefore, plaintiff

acquired easement right by prescription.

5. It was also stated that plaintiff's land was

surrounded by land belonging to others and except the

suit way, there was no other means for ingress and

egress. Therefore, plaintiff was having easement right

by necessity also.

It was further stated that with ulterior motive

defendant no.1 had closed suit way at point "O" by

digging pits. It was stated that cause of action for suit

arouse during first week of November when defendants

failed to heed to plaintiff's request not to cause

hindrance to suit way.

6. Upon service of summons, defendants entered

appearance and filed written statement denying plaint

averments except admitting ownership of respective

properties. Uninterrupted user of suit way by plaintiff or

his forefathers was vehemently denied. It was however

asserted that plaintiff was using a different path way

i.e., "HIJK" to reach his land. It was stated that said

path way was passing through land belonging to his

cousins. Suppressing said fact, plaintiff had come up

with a false claim over "MNOP" suit way. The defendant

annexed a hand sketch depicting "HIJK" path way.

7. Based on pleadings, trial Court framed the

following issues:

           "1.    Does     the       plff.        Prove        the
                  easementary     right      by    prescription
                  and necessity in M.N.O.P. of plaint
                  had sketch map?

2. Does the plff. Prove the obstruction?

3. Does the plff. Entitled to any relief?

4. What Order or Decree?"

8. In order to establish his case, plaintiff

examined himself as PW.1 and also examined

neighbouring land owners as PWs.2 and 3. An advocate,

Court Commissioner was appointed by Court, who was

examined as CW.1. Exs.P1 to P10 and Exs.C1 to C5 were

marked. On behalf of defendants, defendant No.1 was

examined as DW.1 and three other witnesses were

examined as DWs.2 to 4. Exs.D1 to D4 were marked.

9. In his deposition, PW.1 reiterated plaint

averments. In the cross-examination, it was elicited

that plaintiff was not in good terms with Hydersab and

Haider from time of his great-grandfather and as

Dadarsab and his own brother Haidersab had objected

to plaintiff reaching his land by passing through their

lands, plaintiff had filed the instant suit.

10. PW.2 Mallappa Mathad, owner of agricultural

land lying to east side of plaintiff's land deposed that in

order to reach his land, plaintiff proceeded from East

towards west and thereafter towards north and turned

towards west at defendant's land to reach his land. He

further deposed that said suit way was being used since

the time of his ancestors and said fact was known to

villagers. He further deposed that there was some

difference between plaintiff and defendants past few

years and therefore defendants had blocked suit way by

digging pits. PW.2 also specifically stated that except

suit way there was no other way for plaintiff for ingress

and egress to his land. Assertions of PW.2 sustained

cross-examination. Sri.Gaviyappa Mallappa Mathad

examined as PW.3, deposed likewise.

11. Sri.Badarinath Venkoba Hegadal, Advocate is

examined as C.W.1. He was appointed as Court

Commissioner. He executed commissioner's warrant and

submitted report corroborating plaintiff's claim that suit

way "MNOP" was in existence to reach plaintiff's land

and except same, there was no other way for plaintiff to

reach his lands. CW.1 is cross-examined mainly on the

aspects of issuance of notice to parties and regarding

carrying out of memo of instructions. There is no

specific cross-examination regarding Commissioner's

finding regarding "MNOP" suit way.

12. On the other hand, defendant No.1 examined

as DW.1 and specifically stated that villagers of Dambal

travel from east to west, on pathway along village

border. Towards south of Sy.No.412 there was a cart

way. Towards north of Sy.No.412, Sy.No.413 belonging

to him was situated. The said boundary road ran along

with Sy. No.412/1 and 413 owned by defendants.

13. DW.1 stated that Mulla owner of Sy. No.413/2

passes through his lands from boundary road by and

thereafter passing through his land. It is also elicited

from DW.1 that owner of Sy. No.413/2 was using suit

way from the time of his ancestors. It is specifically

elicited from DW.1 that similarly owner of Sy. No.412/5

used to reach his land by passing through Sy. No.412/1

and this was only way to reach his land. Though DW.1

sought to retract this admission, immediately thereafter

he once again admits that owner of Sy. No.412/5 used

to pass through Sy. No.412/1 and that said path way

shown in the village map. DW.1 also admits that user of

this land was known to all the villagers.

14. Hyderalisab Tamboti is examined as DW2.

DW2 is brother of plaintiff and owner of Sy.No.412/4

lying to southern side of plaintiff's land. Though DW2

deposed as per contents of written statement during

cross-examination, he admits existence of 'MNOP'

pathway, but states that same is being used by Mulla,

owner of Sy.No.413 and others, but not plaintiff. Sri

Gaviyappa Mallappa Mathad examined as DW3 also

admits existence of user of 'MNOP' suit way. He also

denies user of suit way by plaintiff. However, it is

elicited from DW4 that he is unaware about contents of

affidavit examination-in-chief.

15. Based on said evidence, trial Court held that

plaintiff established existence of 'MNOP' suit way by

prescription and obstruction of said right by defendants.

It held that plaintiff was entitled for relief as sought for

and decreed suit. While coming to said conclusion, trial

Court relied upon report of Court Commissioner also.

First Appellate Court however came to conclusion that

report of Court Commissioner was unreliable due to

technical defect in respect of issuance of notice and

carrying out of memo of instructions and based on said

conclusion, judgment and decree passed by trial Court

was set aside and suit was dismissed. This appeal was

admitted on 14.09.2010 to consider following

substantial questions of law:

1. Whether the First Appellate Court has considered Section 15 of the Easements Act in proper perspective?

           2.    Whether    the     lower      Appellate         Court
                 judgment is perverse and contrary to
                 evidence on record and has it failed
                 to consider the easementary right of
                 way   as     described        in     the     plaint
                 schedule     by    the     plaintiff       as     per
                 evidence on record?



             3.    Whether     the    judgment        and     decree
                   passed by the lower Court is contrary
                   to      evidence        on        record      and
                   Commissioner's report and amounting
                   to perverse finding?

Since substantial questions of law framed are analogous

to each other, they are taken up together for

consideration.

16. Admittedly there was no cross-examination of

CW1-Court Commissioner by defendants on his report

affirming existence of 'MNOP' pathway. Entire cross-

examination by defendants of CW1 is directed towards

substantiating technical defects. Appellate Court has

relied on admission of plaintiff that after objection for

passing through their lands by Hydarsab and Dadarsab,

plaintiff had filed suit and on evidence of DW2. As

stated by DW2, there was enmity between him and

plaintiff. Therefore, deposition of Hydarsab against

plaintiff would be suspect as he would be an interested

witness. In any case, when entire deposition is

considered, it appears to be stray admission. There is

no elucidation of same by defendants except on one

suggestion. On the other hand, defendant specifically

admitted existence of 'MNO' pathway. DW1 deposed that

owner of Sy.No.413/2 was reaching his lands by passing

through Sy.No.413/1 lying to northern side of

defendants' land and likewise owner of Sy.No.412/5 was

passing through Sy.No.412/1 to reach his lands. It is

also elicited from DW1 that said user was known to all

villagers. There is no cross-examination of plaintiff

regarding duration of user being less than qualifying

period as required under Section 15 of the Easements

Act. Plaintiff assertion that he was using 'MNOP' suit

way to reach his lands since time of his ancestors has

remained uncontested. Infact assertion in plaint is for

50 years. It is also admitted by DW1 that except suit

way, there is no other way for plaintiff to reach his

lands. These admissions would constitute not only

acquisition of easement right by prescription as required

under Section 15, but also by way of necessity.

17. While reversing finding of trial Court,

appellate Court has stated that user of 'MNOP' suit way

by plaintiff was not as of right. Only basis for appellate

Court to come to such a conclusion is admission by

plaintiff that there was obstruction to his passing

through lands of Hydarsab and Dadarsab. Said

admission may at best discount the plaintiff's claim of

easement by necessity. In any case as case of enmity

between Hydarsab and plaintiff, deposition of Hydarsab-

DW2 has to be discounted as being that of an interested

witness. Therefore, specific admissions given by

defendant no.1 would come to the fore and substantiate

case of plaintiff in terms of Section 15 of Easements

Act. Conclusion drawn by first appellate Court ignoring

specific admissions of defendant no.1 and basing its

conclusion only on stray admission of plaintiff would be

perverse appreciation of evidence on record. The powers

of appellate Court do not extend to supplanting opinion

of trial Court with its own except in case of perversity.

Therefore, interference with findings of trial Court by

appellate Court would be contrary to law. Substantial

questions of law framed are therefore answered in

favour of appellant-plaintiff. Hence, I pass following:

ORDER

Appeal is allowed. Judgment and decree dated 21.04.2006 passed in R.A.No.88/2003 by Additional Civil Judge (Sr.Dn.), Gadag is set aside. Judgment and decree dated 30.06.2003 passed in O.S.No.85/2002 by Civil Judge (Jr.Dn.), Mundaragi is restored.

SD/-

JUDGE

R sh / C LK