Karnataka High Court
Mukkaattira Pemmaiah vs Mukkatira Jaya on 2 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.2001/2007 (INJ)
BETWEEN:
MUKKAATTIRA PEMMAIAH
AGED ABOUT 59 YEARS
S/O LATE MUTHANNA
R/AT. NALVATHOKLU VILLAGE
S.KODAGU-571201 ... APPELLANT
(BY SRI B.L.ACHARYA, SENIOR COUNSEL FOR
SMT.PUSHPALATHA B., ADVOCATE)
AND:
MUKKATIRA JAYA
AGED ABOUT 65 YEARS
S/O LATE KARUMBAIAH
R/AT NALVATHOKLU VILLAGE
KODAGU-571201 ... RESPONDENT
(BY SRI S.SREEVATSA, SENIOR COUNSEL FOR
SRI M.UMASHANKAR, ADVOCATE)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 16.04.2007 PASSED IN
R.A.NO.44/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED 05.07.2006 PASSED IN
O.S.NO.42/2003 ON THE FILE OF THE ADDL. CIVIL JUDGE
(JR.DN.) VIRAJPET, AND ETC.
2
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.01.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant challenging the
judgment and decree passed in the original suit as well as in the
regular appeal wherein confirmed the judgment and decree of
the Trial Court.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the plaintiff before
the Trial Court that the plaintiff is the absolute owner in
possession of bane lands bearing Sy.Nos.322/2, 322/3 and
322/4 cultivated with coffee and other crops and also the wet
lands bearing Sy.No.310 situated at Nalavathoklu village,
Amanthi Nad. The plaintiff's house and other establishment are
situated in Sy.No.322/4. In the year 1970, under an oral
partition between the plaintiff, his father Karumbaiah and
brothers, the above said properties along with other properties
devolved to the share of the plaintiff. In the year 1980, the
plaintiff has cultivated the bane lands bearing Sy.Nos.322/2,
322/3 with coffee and other crops and CRC of the said properties
has been registered in the name of the plaintiff. It is also the
case of the plaintiff that for the last 50 years, the plaintiff and
his father has been using the suit schedule road openly,
peacefully with the knowledge of the defendant and his father
Muthanna without any obstruction and acquired as easement.
The plaintiff's father died in the year 1978. The defendant is the
owner of the properties bearing Sy.Nos.322/6, 322/7 and those
properties are situated in between the properties of the plaintiff
bearing Sy.Nos.322/4, 322/2, 322/3 and 310. The suit schedule
road is separately fenced on both sides and demarcated with
specific boundaries and it has been more particularly described
in the rough sketch annexed to the plaint. The suit schedule
road is marked as 'A', 'B' and 'C' in the rough sketch and the
plaintiff has put up the gate at the point 'C'.
4. It is the contention of the plaintiff that on
18.05.1933, the defendant has unlawfully trespassed into the
suit schedule road and removed a portion of the fence on the
western side of the road and caused damage to the extent of
Rs.1,000/-. The defendant has threatened the plaintiff stating
that he will block the suit schedule road at point 'B' and prevent
the plaintiff from using the said road. The defendant has already
formed a new road to his wet lands in order to block the suit
schedule road. The plaintiff has no other alternative road to
reach his coffee cultivated lands and wet lands situated at the
southern side of the suit schedule road. It is also the case of the
plaintiff that on 20.05.2003, the plaintiff has filed a complaint to
the Circle Inspector of Police and the police visited the spot and
warned the defendant not to block the said road and not to
obstruct the use of the road by the plaintiff. With an ulterior
motive and for wrongful gain, the defendant has removed a
portion of the fence of the suit schedule road and made an
attempt to block the same but it was resisted by the plaintiff.
5. The plaintiff also amended the plaint contending that
on 02.06.2003, the defendant has unlawfully put up the iron
gate at the entrance of the properties bearing Sy.No.322/6 in
order to prevent the plaintiff from using the suit schedule road
and in the third week of June, 2003, the defendant has removed
remaining portion of the fence and cuttings on either side of the
suit schedule road and planted coffee, papaya and other fruit
bearing trees on either side of the suit schedule road, where the
said fence and cuttings were in existence. The said gate was put
up at point 'B' shown in the rough sketch. The fence and cuttings
were removed on either side of the suit schedule road from point
'B' to 'C' and planted the trees as stated above. Due to the
above said act of the defendant, the plaintiff is not in a position
to use the suit schedule road freely and the gates will obstruct
the passage of heavy and loaded vehicles. The defendant has
installed the gate and planted trees to prevent the plaintiff from
enjoying the suit schedule road freely. Hence, filed the suit.
6. In pursuance of suit summons, the defendant
appeared and filed the written statement denying the averments
made in the plaint. The defendant contended that Nalvathoklu-
Bittangal road was formed about 25 years back and road was
formed in the wet land bearing Sy.No.310 belonging to the share
of late M S Kariappa. The said road is not marked in the village
plan even today. The mud road was constructed in the year
1990 by the defendant hence, the question of using the said
road by the plaintiff and his father for the last 50 years does not
arise and prior to that there was irregular footpath on the land
covered with jungle. The defendant has ridiculed the claim of the
plaintiff that himself and his father have been using the suit
schedule road for the last 50 years as meaningless since the
plaintiff is aged 52 years only. The defendant submits that
Muthanna died in the year 1976. The property in Sy.No.310 of 9
acres in extent belongs to 4 branches of the Mukkattire family
and not exclusively to the plaintiff. The defendant admitted his
ownership in respect of Sy.No.322/6 and 322/7 and it is situated
in between Sy.Nos.322/3 and 322/4. The defendant admitted
that the plaintiff has erected an iron gate at the entrance of
Sy.No.322/3 in the year 1995. It is also contended in the
written statement that the plaintiff was making use of the suit
schedule road without any obstruction from the defendant or
anyone else. The defendant was also using the continuation of
the said mud road through Sy.No.322/3 and 322/5 to go the
house of the family members, the labour colony in the paisary
land to bring the labourers to his estate and occasionally to the
electric transformer situated in the land of Nayanda Ponnappa
when there is power failure. As per the partition mahazar dated
20.05.1977 executed between the plaintiff and his father and
other branch members Poonacha and Uthappa, the parties
agreed to provide 10 cents of land for the purpose of graveyard
which is now left vacant as shown in the mahazar near the gate
of the plaintiff.
7. The Trial Court having considered the pleadings of
the parties framed the Issues and allowed the parties to lead
their evidence. Accordingly, plaintiff examined himself as PW1
and also examined two witnesses as PW2 and PW3 and got
marked the documents at Ex.P1 to P10. On the other hand, the
defendant examined himself as DW1 and also examined two
witnesses as DW2 and DW3 and got marked the documents at
Ex.D1 and D2. The Court Commissioner also appointed and his
report is marked as Ex.C1 and rough sketch is marked as Ex.C2.
The Trial Court having considered the material available on
record answered issue Nos.1 to 5 as affirmative that the plaintiff
has acquired the esamentary right over the suit schedule road
by prescription and the defendant has interfered with the
enjoyment of the suit schedule road and hence, the plaintiff is
entitled for the relief of declaration as well as permanent
injunction and mandatory injunction and answered issue Nos.6
to 9 as negative declining to pass any order in respect of the
counter claim made by the defendant.
8. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was filed in R.A.No.44/2006. Having
considered the grounds urged in the appeal memo, the First
Appellate Court also formulated the point that whether the
plaintiff proves that he has acquired the easementary right of
way over the schedule property by prescription and defendant
has erected the gate at point 'B' so as to block the road and
thereby caused obstruction to him in making use of the suit
schedule road and answered point No.1 as affirmative and
answered point No.3 as negative in coming to the conclusion
that the defendant has not proved that the plaintiff has put up a
lock to his gate and prevented him from making use of the
counter claim road and held that the judgment and decree of the
Trial Court does not require any interference and dismissed the
appeal and confirmed the judgment and decree of the Trial
Court.
9. Being aggrieved by both the orders, the present
appeal is filed before this Court. This Court also disposed of the
appeal and the same was challenged before the Apex Court in
Civil Appeal No.1502/2011 wherein the Apex Court set aside the
order of this Court and the matter was remanded to the High
Court for disposal of the second appeal in accordance with law
without expressing any opinion on merits. The Apex Court
taking into note of the relationship between the parties and
respective situation plaintiff their properties, directed the High
Court to refer the matter to the Bangalore Mediation Centre for
attempting a negotiated settlement before taking up for final
hearing on merits. Accordingly, the matter was referred to the
Mediation Centre and directed the parties to appear before the
Bangalore Mediation Centre on 25.05.2011 at 11.00 a.m. and
the same was returned stating that the parties could not reach
the settlement on terms. Hence, this Court heard the arguments
of the learned counsel for the respective parties on merits.
10. At the time of admission, the following substantial
question of law was framed by this Court for consideration of the
appeal:
Whether the Courts below were justified in granting
a decree of mandatory injunction directing removal
of the gate which is erected by the defendant in the
road which belongs to him over which, easmentary
right has been declared in favour of the plaintiff, for
the plaintiff to enjoy?
11. The counsel for the appellant in his argument would
vehemently contend that the suit was filed for the relief of right
of way claiming easmentary right, declaration, permanent
injunction and mandatory injunction. The main contention of the
counsel appearing for the appellant that plaintiff has given
permissive nature to use the said road and no easmentary right
is conferred upon the plaintiff. The counsel also would
vehemently contend that Ex.P10 is the rough sketch which is
filed along with the plaint while seeking the relief of declaration
and other consequential relief. The counsel for the appellant
restricted his argument only with regard to granting of
easementary right and not pressing his counter claim in respect
of 'C' property which is shown in the sketch. The counsel also
would vehemently contend that the gate which installed at point
'B' as shown in the sketch is only a restricted gate. The counsel
also would vehemently contend that there is no dispute with
regard to putting put up of gate by the defendant in a place
shown as 'B' in the sketch. The counsel also would vehemently
contend that when the plaintiff is seeking the relief of
easementary right, there must be pleading and comply with the
7 ingredients of Section 15 of the Indian Easements Act, 1882
(for short 'the Act of 1882') but no such pleading in the plaint.
12. The counsel in support of his arguments he relied
upon the judgment of Kerala High Court reported in 2006 (2)
KLT 636 in the case of BADARIYA MADRASSA COMMITTEE
vs ANTONY ROBERT and brought to notice of this Court
paragraph 4 wherein it is held that notice was ordered on the
questions of law formulated in the memorandum of appeal that it
is not absolutely necessary and essential that the plaintiff in a
suit for establishment of his claim for easementary right should
specifically plead and prove such right over the servient
tenement and also brought to notice of this Court paragraph 5
wherein discussed that it will be advantageous to bear in mind
the law declared by the Apex Court and by this Court before a
detailed discussion of the above questions of law formulated in
the background of the facts of the case. In paragraph 6 also
taken note of the judgment of the Apex Court in the case of
JUSTINIANO ANTAO VS BERNADETTE B PEREIRA wherein
an observation is made that in order to establish a right by way
of prescription one has to show that the incumbent has been
using the land as of right, peacefully and openly and without any
interruption for the last 20 years. The counsel also brought to
notice of this Court paragraph 8 wherein also an observation is
made with regard to the prescription for easementary right and
seven ingredients of Section 15 of the Act i.e., (1) there must be
pre-existing easement which must have been enjoyed by the
dominant owner; (2) the enjoyment must have been peaceable;
(3) the enjoyment must have been as an easement; (4) the
enjoyment must have been as of right; (5) the right must have
been enjoyed openly; (6) the enjoyment must have been for a
period of twenty years and (7) the enjoyment for 20 years must
have been without interruption. The counsel also brought to
notice of this Court paragraph 12 wherein a discussion was made
in the judgment that compliance of ingredients of Section 15 of
the Indian Easements Act that no right of prescription can be
declared in respect of plaint 'B' schedule property for vehicular
traffic through B-schedule property.
13. The counsel relied upon the judgment of the Apex
Court reported in (2005) 1 SCC 471 in the case of
JUSTINIANO ANTAO AND OTHERS vs BERNADETTEE B
PEREIRA and brought to notice of this Court paragraph 2 with
regard to the factual aspects of the case and paragraph 3
wherein discussion made with regard to the easmentary right
through prescription and also brought to notice of this Court
paragraph 9 wherein discussion was made that in order to
establish a right by way of prescription one has to show that the
incumbent has been using the land as of right peacefully and
openly and without any interruption for the last 20 years. In
order to establish the right of prescription to the detriment of the
other party, one has to aver specific pleadings and categorical
evidence. In the present case, after going through the pleadings
as well as the statement of the witnesses it is more than clear
that the plaintiff has failed to establish that she has been using
the access peacefully, openly as of right for the last 20 years.
The counsel referring this judgment would vehemently contend
that very pleading of the plaintiff is lacking with regard to the
usage of the said road. Hence, the question of invoking
easementary right of prescription does not arise.
14. The counsel also relied upon the judgment of this
Court reported in 1968 MYS. L. J. 569 in the case of
NARAYANA SHETTY AND ANOTHER vs B BYRAPPA and
brought to notice of this Court Section 4 of the Easements Act
denies an easement as a right of the dominant owner for the
beneficial enjoyment of his land, to do and continue to do
something, or to prevent and continue to prevent something
being done in or upon, or in respect of the land of the servient
owner. The counsel also brought to notice of this Court to
Section 15 of the said Act which provides a right of way or other
easement is acquired if it has been peaceably and openly
enjoyed as an easement and as of right without interruption for
twenty years. But the plaintiff did not allege such enjoyment as
of right. If an easement cannot be acquired unless there is such
enjoyment, a plea that there was the exercise of an asserted
right is a fundamental requirement.
15. The counsel also relied upon the judgment of this
Court reported in 1966 MYS. L. J. 71 in the case of
RUDRAWWA vs BALAWWA AND ANOTHER and contend that
the scope of a suit is determined by the pleadings in the case.
Any amount of evidence cannot fill up the lacuna in the
pleadings. If the case is not pleaded, the same cannot be
permitted. The counsel referring this judgment would
vehemently contend that in the absence of specific pleading with
regard to the enjoyment of the property for more than 20 years,
the question of granting the relief of easementary right of
prescription does not arise.
16. The counsel also would vehemently contend that in
paragraph 4 of the plaint not pleaded specifically with regard to
the enjoyment as of right and only in the reply in paragraph 4
pleaded the same and the same not specifies the pleading of the
plaint. The plaintiff pleaded the same only after filing of the
written statement hence, the counsel would vehemently contend
that both the Courts have failed to take note of the same and
committed an error. The finding in paragraph 29 of the
judgment of the First Appellate Court that there is a pleading is
not correct and the same is error in law and granting of relief of
declaration and mandatory injunction is not correct and only the
Court can grant permissive possession as contended by the
defendant in the written statement and not entitled for the relief
of easementary right.
17. Per contra, the learned counsel appearing for the
respondent in his argument would vehemently contend that the
Trial Court having considered both oral and documentary
evidence placed on record rightly appreciated the material
available on record while answering the Issues involved between
the parties. The counsel brought to notice of this Court
paragraph 24 of the order of the Trial Court wherein discussed
with regard to the pleadings of the parties and also evidence of
witnesses and particularly documents at Ex.P3 to P7 and so also
in paragraph 25 the evidence of PW2, PW3, DW2 and DW3. The
counsel also brought to notice of this Court to paragraph 27
wherein the Trial Court discussed about the objection raised by
the defendant that the plaintiff has failed to show the enjoyment
of easementary, hence, requires to be rejected. The Trial Court
also taken note of existence of road shown in Ex.P10 and Ex.C2
and its user by the plaintiff in paragraph 29. The counsel also
brought to notice of this Court that in paragraph 31, discussed
with regard to the claim made by the plaintiff that they are
cultivating the property from 1980 and residing in the house
constructed by him in Sy.No.322/4 and also discussed with
regard to the Court Commissioner's report in paragraph 32 and
also both oral and documentary evidence placed on record with
regard to obtaining of CRC issued in favour of the plaintiff on
03.12.1982. The Trial Court also taken note of the dispossession
by DW1 in paragraph 35 and also detailed discussion made in
paragraphs 38 to 40 and so also in paragraph 43 and 44. The
counsel referring the findings of the Trial Court would
vehemently contend that the Trial Court not committed any error
and properly appreciated both oral and documentary evidence
placed on record while decreeing the suit.
18. The counsel for the respondent in his argument
would vehemently contend that it is emerged in the evidence
that gate was put before 15 days of filing of written statement
and the same is emerged during the course of evidence and the
same has been considered. The counsel also would vehemently
contend that the First Appellate Court also in paragraph 20
discussed with regard to the pleadings of the parties and also in
keeping the judgment of this Court in the case of Narayana
Shetty (referred supra) and in paragraph 22, the First Appellate
Court having carefully examined both oral and documentary
evidence placed on record and also the Commissioner report,
sketch and Ex.P3 to P7 held that the documents show the
possession of the plaintiff over the property bearing
Sy.No.322/3, 322/4, 310, 322/2P. The First Appellate Court also
considered the sketch marked at Ex.P10 with regard to the
existence of the road which is shown as 'A', 'B' and 'C' and also
discussed in detail in paragraph 23 and so also in paragraph 24
with regard to the commissioner's report and in paragraph 26
discussed with regard to obtaining of CRC in the year 1982 and
he has cultivated his land from 1975 and also held that DW1 also
admitted that before issuance of CRC, a survey would be
conducted along with the spot inspection and issuance of CRC
may take two to three years. In paragraph 30, the First
Appellate Court observed with regard to that the gate which has
been installed by the defendant would cause obstruction to the
enjoyment of the suit schedule property by the plaintiff or not.
Thus, both the Trial Court and the First Appellate Court has not
committed any error in granting the relief in favour of the
plaintiff. Hence, it does not requires any interference.
19. The counsel for the appellant in his reply, he would
vehemently contend that even this Court can frame additional
substantial question of law with regard to as of right which is not
pleaded also can be a substantial question of law. The counsel
also would vehemently contend that both the Courts come to the
conclusion that the plaintiff and his father are enjoying the
property from 1980 onwards and not for the past 50 years as
contended by the plaintiff. Hence, it requires interference.
20. Having heard the learned counsel appearing for the
respective parties and also considering the substantial question
of law framed by this Court, this Court has to reanalyze the
material available on record. The counsel for the appellant did
not press his contention with regard to the counter claim. The
main contention urged by the counsel for the appellant that it is
only a permissive in nature for use of the road and no
easmentary right can be granted in favour of the plaintiff. The
counsel also brought to notice of this Court that there must be a
specific pleading of as of right and in the absence of any
pleading, the Trial Court and the First Appellate Court ought not
to have granted the relief of easmentary right. The counsel also
brought to notice of this Court to the seven ingredients of
Section 15 of the Act of 1882 which mentioned as below: (1)
there must be pre-exiting easement which must have been
enjoyed by the dominant owner; (2) the enjoyment must have
been peaceable; (3) the enjoyment must have been as an
easement; (4) the enjoyment must have been as of right; (5)
the right must have been enjoyed openly; (6) the enjoyment
must have been for a period of twenty years and (7) the
enjoyment for 20 years must have been without interruption and
the same is referred in the case of BADARIYA MADRASSA
COMMITTEE referred supra.
21. The main contention of the counsel for the appellant
that it is only a permissive in nature and no easementary right
can be granted in favour of the plaintiff. No doubt, the
judgments which have been referred supra by the appellant with
regard to the easement of prescription, the Apex Court held in
Justiniano Antao's case referred supra that, it is very clear that
the acquisition of right of way by prescription it has to be shown
that incumbent has been using said land as of right peacefully
and openly and without any interruption for the past twenty
years, specific pleadings have to be averred and categorical
evidence led in general, and specifically in respect of dates
between which right of way concerned has been used for at least
twenty years.
22. No doubt, other judgments of this Court also very
clear with regard to defining of easement as a right of the
dominant owner of the beneficial enjoyment of his land in
Narayana Shetty's case referred supra. In Rudrawwa's case
referred supra, it is very clear that the scope of a suit is
determined by the pleadings and if the case is not pleaded, the
same cannot be permitted. In keeping the principles laid down
in the judgments referred supra and also the contentions urged
by the appellant, this Court has to take note of the averments of
the plaint.
23. The plaintiff has pleaded in paragraph 3 that there
was an oral partition between the plaintiff and his father in the
year 1970 and it is also his pleading that the properties
mentioned in the suit and other properties came to the share of
the plaintiff and the plaintiff has cultivated the same by growing
coffee and other crops. It is also pleading in paragraph 4 that
the plaintiff and his father were enjoying the said road in order
to reach the plaintiff's properties bearing Sy.No.322/2, 322/3
and 310 which is morefully described in the schedule. It is also
specific pleading that for the last 50 years, the plaintiff and his
father has been using the suit schedule road openly, peacefully
with the knowledge of the defendant and his father Muthanna
without any obstruction from them. No doubt, in paragraph 4 of
the plaint, it is not specifically pleaded that as of right but
pleading is very clear that for the last 50 years, the plaintiff and
his father were using the schedule road openly, peacefully and
continuously without any obstructions from the defendant and
his father.
24. It is not in dispute that the defendant is the owner of
the property bearing Sy.No.322/6 and 322/7 and those
properties are situated in between the properties of the plaintiff.
It is also pleaded that the suit schedule road is separately fenced
on both the sides and demarcated with specific boundaries and
the same has been described in the rough sketch at Ex.P10 as
'A', 'B' and 'C'. It is also not in dispute that the suit schedule
road is blocked at the point of 'B' and the same is also not
denied by the defendant. The main contention of the defendant
that throughout in the cross-examination of PW1 to PW3 it is
stated that it is only a permissive in nature. In the cross-
examination of PW1 to PW3, the very same question was put to
them but they have denied the same. It is also emerged in the
evidence of witnesses that except the said road, no other road is
in existence to reach the property of the plaintiff.
25. It is also important to note that in the evidence of
PW1 to PW3, they have specifically stated that the property was
cultivated in the year 1980 and CRC was obtained in the year
1982. The defendant also not denied the fact that the plaintiff
has obtained the CRC. It is also important to note that they
have categorically admitted that in order to get the CRC, it takes
1½ to 2 years. Hence, it is clear that an application was made
to get the CRC in the year 1980 itself. The said fact is also not
disputed by the defendant. The rough sketch also clearly
discloses that new road is also formed to connect Bittangala road
and the said road is only to reach the land of the defendant and
the plaintiff is not having any such connected road. The suit was
filed in the year 2003 and the material also discloses that
cultivation is from 1980 onwards and it is clear that the suit was
filed after 23 years wherein specific pleading is made that the
plaintiff is enjoying the suit schedule road uninterruptedly in
order to access their property, hence, the very condition of
Section 15 of the Act of 1882 that the right of prescription
accrues after 20 years also satisfied for the relief of easement of
prescription. It is also important to note that DW1 also in the
cross-examination admitted that the plaintiff's father also
cultivated the property in Sy.No.310 and the said admission is
found in page 5 of DW1's cross-examination.
26. It is also admitted by the defendant that
Sy.No.322/2, 322/3, 310 are adjacent to the plaintiff's share
property. He also categorically admits that he did not deny that
road is not in existence in Sy.No.322/4 in his written statement.
It is also admitted that he also purchased the vehicle in the year
1995. Also admission was made that the plaintiff may be is
having vehicle facility from 1982. He also admits that the
vehicle was coming from the very same road even prior to
forming of new road. He also admits that before issuance of
CRC, spot inspection was conducted and thereafter they issued
CRC. He admits that the plaintiff is not having any other
alternative road to reach his property. He also admits the width
of road as 10 to 12 feet.
27. Having considered the measurement of the road and
also the admission that the plaintiff is cultivating the land prior
to 1982, CRC also obtained in the year 1982 and also no other
alternative road to the plaintiff, the very contention of the
counsel for the appellant that the requirement and ingredients of
Section 15 of the Act of 1882 has not been complied cannot be
accepted. Though not specifically used the word 'as of right' in
the plaint, the Court has to look into both oral and documentary
evidence placed on record and also consider the fact that the
properties are belongs to the ancestors of the parties is also not
in dispute. It is also specific claim of the plaintiff that there was
a partition among the family members prior to 1970 and the
same is also not denied by the defendant. DW2 also in the
cross-examination admits the sketch at Ex.P10 that 'A' and 'B'
point is the land of the plaintiff and point 'B' and 'C' is the land
belongs to the defendant and the plaintiff also fenced his
property. He also admits that the width of the road is 10 to 12
feet and heavy vehicle also passes through his land. DW3 also
not disputes the sketch and he also categorically admits with
regard to the road passing through Sy.No.322/6 and 322/7
thereafter Sy.No.322/2 and 322/3 and the same commences
from Sy.No.322/4. He also admits that the defendant
constructed the house in the year 1980.
28. Having re-assessed both oral and documentary
evidence placed on record it is not in dispute that road is in
existence. Though earlier the said road was smaller, the same
has been used by the plaintiff and now the measurement of the
road is 10 to 12 feet. The fact that same was blocked at point
'B' as admitted by the defendant is not in dispute. Hence, I do
not find any error committed by both the Courts in granting the
relief of mandatory injunction in favour of the plaintiff and both
the Courts justified in accepting the case of the plaintiff.
29. It is contended by the defendant that it is only a
permissive in nature but the said contention is denied by PW1 to
PW3 in the cross-examination since there is no other alternative
road to reach the property of the plaintiff. When the ingredients
of Section 15 has been complied by the plaintiff, the contention
of the defendant that there is no proper pleadings and evidence
cannot be accepted because there is a specific pleading that the
plaintiff and his father are using the said road for the past 50
years. Hence, it is clear that from 1970 onwards from the date of
partition, the plaintiff and his father are cultivating the said
property and also obtained CRC from the concerned department.
There is also an admission that in order to issue CRC, spot
inspection is necessary and thereafter only CRC will be issued.
More than 20 years as prescribed under Section 15 of the Act of
1882, road is used by the plaintiff, even if no evidence for more
than 50 years usage as contended by the plaintiff, but material
clearly discloses usage of road for more than 20 years. The
ingredients of pre-existing easement enjoyed by the dominant
owner as against the servient owner and the enjoyment is
peaceful is established 'as of right'. The usage is open for more
than 20 years without interruption is established. The
ingredients of Section is complied and the principles laid in the
judgment of the Apex Court in JUSTINIANO ANTAO'S case and
the judgment of the Kerala High Court in BADARIYA
MADRASSA COMMITTEE's case which have been relied upon
by the learned counsel for the respondent comes to the aid of
the respondent and the same are not helpful to the appellant.
Hence, I do not find any error committed by both the Courts in
recognizing the right of easement of the plaintiff. Thus, the
judgments relied upon by the appellant's counsel will not come
to the aid of the appellant having considered the facts of the
case on hand. Hence, I answer the substantial question of law
as affirmative.
30. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN
