Basanagouda vs Peerasab Huchchesab Challamarad
2023 Latest Caselaw 525 Kant

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                                        RSA No.5588 of 2009


          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

      DATED THIS THE 9TH DAY OF JANUARY, 2023

                      BEFORE
        THE HON'BLE MR JUSTICE M.G.S. KAMAL

                 R.S.A.NO.5588 OF 2009

BETWEEN:

      BASANAGOUDA
      S/O FAKIRAGOUDA SHIRUR,
      AGE 38 YEARS, OCC: DOCTOR,
      R/O MANIHAL, TQ-RAMDURG,
      DIST BELGAUM.
                                                 ...APPELLANT
(BY    SRI B V SOMAPUR AND
       SRI S R RODARATTI, ADVOCATES)

AND:


      PEERASAB HUCHCHESAB CHALLAMARAD
      AGE 48 YEARS OCC: AGRICULTURE,
      R/O MANIHAL TQ-RAMDURG,
      DIST: BELGAUM.
                                               ...RESPONDENT

       THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS
COURT TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) RAMADURG, IN
R.A.NO.17/2009, DATED 07.10.2009 VIDE ANNEXURE-A & B.

       THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                      RSA No.5588 of 2009


                           JUDGMENT

1. The present appeal is filed by the plaintiff

aggrieved by the judgment & decree dated 07.10.2009

passed in R.A.No.17/2009 on the file of Civil Judge

(Sr.Dn.), Ramadurga (hereinafter referred o as "the First

Appellate Court" for short) in and by which, the First

Appellate Court while allowing the appeal filed by the

defendant, set aside the judgment and decree dated

08.07.2011 passed in O.S.No.86/2006 on the file of Civil

Judge (Jr.Dn.) Ramdurga (hereinafter referred to as "the

Trial Court" for short).

2. Brief facts of the case are that, the aforesaid

suit in O.S.No.86/2006 was filed by the plaintiff for the

relief of permanent injunction restraining the defendant

from constructing any wall or chavani or room in the

property mentioned as "AEFG" shown in the rough sketch

produced along with plaint.

RSA No.5588 of 2009

3. It is the case of the plaintiff that, he is the

owner and in actual possession of the property bearing

VPC No.1191 situated at Manihal village (hereinafter

referred to as "the suit property" for short) described in

the plaint. That the defendant is the owner of the suit

property shown in the rough sketch. The defendant is

trying to construct a room measuring 8 x 6 feet in-front of

his house unauthorizedly, if the defendant constructed the

said room the same would effect the right of way of

plaintiff, which the plaintiff has been enjoying as passage

to reach his house since his childhood. That the plaintiff

acquired right by way of prescription and the said passage

is only mesne of access to the house of the plaintiff,

hence, suit for permanent injunction.

4. Defendant appeared and filed his written

statement denying all the plaint averments and also

questioning very maintainability of the suit. It is the

specific contention of the defendant that the plaintiff ought

to have filed a suit for relief of declaration of he having

RSA No.5588 of 2009

acquired the purported right of easement by way of

prescription and that not having been done, suit of the

plaintiff for bare injunction is not maintainable. It is the

further contention of the defendant that he has obtained

necessary permission from the Gram Panchayath for

construction of the building in-front of his house and the

same would not cause any inconvenience to the plaintiff.

That the plaintiff has not specifically stated as to whom

does the property over which the defendant is putting up

construction belong to and that unless the plaintiff admits

ownership of the defendant over the property, plaintiff

cannot seek for easementry right, hence sought for

dismissal of the suit.

5. The Trial Court based on the pleadings framed

the following issues for its consideration.

1. Whether the plaintiff proves that he is having easementry right over the suit property?

2. Whether the plaintiff proves that the defendant is causing interference to the

RSA No.5588 of 2009

plaintiff of easementry right over the suit property by the plaintiff?

3. Whether the plaintiff is entitled for the relief as sought for?

4. What order?

6. The plaintiff examined himself as PW.1, another

witness as PW.2 and exhibited eight documents as Exs.P.1

to P.8. Two witnesses have been examined on behalf of

the defendant as DWs.1 & 2 and exhibited five documents

as Exs.D.1 to D.5.

7. The Trial Court on examination and on

appreciation of documentary and oral evidence on record,

decreed the suit of the plaintiff restraining the defendant

by way of permanent injunction from constructing any wall

or chavani or room etc., over the suit property shown in

the letter "AEFG".

8. Being aggrieved by the same, the defendant

preferred regular appeal in R.A.No.17/2007 before the

First Appellate Court. Considering the grounds urged in

RSA No.5588 of 2009

the memorandum of appeal, the First Appellate Court

framed the following points for its consideration.

1. Whether the suit filed by the plaintiff without seeking the relief of declaration to declare that, he has acquired the right of easement over the suit property is maintainable?

2. Whether the judgment and decree under appeal warrants interference?

3. What order?

9. The First Appellate Court on re-appreciation of

evidence on record and position of law, held Point No.1 in

the negative and the point No.2 in the affirmative and

consequently allowed the appeal setting aside the

judgment and decree dated 08.07.2009 passed by the

Trial Court in O.S.No.86/2007 and eventually dismissed

the suit. Being aggrieved by the same, the plaintiff is

before this Court.

10. This Court by order dated 27.11.2009 framed

the following substantial questions of law for

consideration.

RSA No.5588 of 2009

"Whether the lower appellate Court was justified in reversing the judgment and decree passed by the trial court and dismissing the suit on the ground that in the absence of the plaintiff seeking declaration that he has acquired easementary right by way of prescription for the suit passage, he was not entitled for the relief of permanent injunction having regard to the fact that the pleadings and the evidence on record show that the passage in question is not part of the defendant's property and also in the light of the findings recorded by the trial Court that there was no valid licence obtained by the defendant to put up the construction on the suit property.

11. Heard Smt.Ranjita Reddy learned counsel

appearing for the appellant and Sri S.B.Doddagoudra

appearing for the respondent and perused the records.

12. Learned counsel for the appellant reiterating

the grounds urged in the memorandum of appeal submits

that, the plaintiff has been utilizing the suit space as

passage. In paragraph No.3 of the plaint has given

description of the property, which is as under:

RSA No.5588 of 2009

"III) Description fo the suit property:- The suit property is the open space, infront of the plaintiff house V.P.C.No.1191 in Ward No.VI of the Manihal village.

           The suit property is bounded by

           To East      :- House of Defendant

           To West      :- Drain cum passage

           To North     :- House of Surakod and
                           Chellamarad.

           To South     :- V.P.C.House No.1191 of
                          Plaintiff.

For the more convincing the whole suit property is explained by letters A.B.C.D.E and the area by letters A.E.F.G is the space 8' X 6' where in the defendant unauthorisidely digged out the ground, for construction of room at the space being used by plaintiff for coming in and going out. The separate hand sketch is annexed, the same be read as component part of the plaint."

13. At paragraph No.4 of the Plaint the plaintiff has

pleaded as under:

"It is most humbly submitted that, the same is being used by the plaintiff since childhood as passage, so the plaintiff have a right of easement

RSA No.5588 of 2009

by way of prescription over the suit space without interruption by defendant or the residents in the Oni, this is the only space for the plaintiff to use."

14. Thus, perusal of the aforesaid averments in the

plaint, make it clear that the plaintiff is conscious of the

fact and has so pleaded, that he is claiming relief of

permanent injunction based on his purported right of

prescription to use the suit space as passage.

15. As rightly pointed out by learned counsel for

the respondent that, in the entire plaint there is no

whisper as to whom does the suit property belong to. In

the absence of the basic elementary pleading in suit for

prescription as the one at hand, it is not appropriate to

grant the relief of prohibitory injunction without there

being a specific averment as to the property over which

the right of easement is claimed and the ownership of the

property over which such right of prescription is claimed.

16. It is a trite law that in a suit claiming right of

easement it is necessary to provide description of

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RSA No.5588 of 2009

dominate tenement and servient tenement. In the

absence of these two elements there cannot be suit

claiming right of easement.

17. The apex Court in the case of BACHHAJ NAHAR

VS. NILIMA MANDAL AND ANOTHER reported in (2008)

17 SCC 491 has held that in the absence of these basic

specific averments in the plaint and the plaintiff in the

absence of establishing his case of he perfecting his right

of easement by prescription and seeking right of

declaration in this regard he is not entitled for relief of

bare injunction.

18. The Trial Court has not appreciated this aspect

of the matter. The Trial Court seemed to have adjudicated

all the issues only with regard to the defendant

purportedly not obtaining the permission to put up the

structure which may not be germane for the purpose of

determination of issue involving a claim for right of

easement.

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RSA No.5588 of 2009

19. Though learned counsel for the appellant

attempted to point out from the evidence more

particularly suggestions made in the cross-examination to

the defendant witnesses with regard to his property, the

very suit being the one for right of easement, the said

suggestion would go contrary to the case of the plaintiff. It

is not even this case of the plaintiff that the suit property

is a public road or public passage. If that is the case of the

plaintiff, the scope of the matter would be entirely

different.

20. Since the suit is one for permanent injunction

claiming right of easement as a passage plaintiff ought to

have pleaded and sought for relief of declaration of such

right.

21. The Trial Court and the First Appellate Court

have not adverted to this aspect of the matter, though the

appeal was allowed by the First Appellate Court.

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RSA No.5588 of 2009

22. In that view of the matter, the substantial

question of law is answered accordingly and the appeal is

dismissed.

23. Notwithstanding the dismissal, the plaintiff is

entitled to seek such relief if available under law.

24. In view of dismissal of the appeal pending

applications, if any, do not survive for consideration and

the same are disposed of accordingly.

sd JUDGE

EM