Karnataka High Court
Chandan Singh Mahendra Singh Parihar vs Nagappa Basappa Kollur on 23 February, 2024
-1-
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.5268 OF 2008 (INJ)
BETWEEN:
M.L. PARIHAR
(ACTUALLY CHANDAN SINGH MAHENDRA SINGH PARIHAR)
VISHAL SINCE DECEASED BY HIS LRs.
NINGAPPA
PATTIHAL
Location: HIGH COURT
1(a) SMT. SEEMA
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.05
W/O. LATE CHANDANSINGH PARIHAR
14:51:18 +0530
AGED ABOUT 54 YEARS,
1(b) SRI VIKRAMSINGH
S/O. LATE CHANDANSINGH PARIHAR
AGED ABOUT 33 YEARS,
1(c) SMT. GAYATRI
W/O. GANGADHAR BHAGWAT
AGED ABOUT 29 YEARS,
1(d) UMA
D/O. LATE CHANDANSINGH PARIHAR
AGED ABOUT 24 YEARS,
ALL ARE RESIDING AT
OPPOSITE SHIVAMANDIR,
KULAGI ROAD, DANDELI,
U.K. DISTRICT - 581 325.
1(e) SMT. POORNIMA
W/O. SIDDIMAN SINGH,
AGED ABOUT 35 YEARS,
OCC: HOUSEHOLD WORK,
-2-
R/O. TYPE-4, DS 44,
POST: KIRAN DUL,
DIST: DANTEWADA, CHATTISGARH,
PIN - 494 556.
(AMENDMENT CARRIED OUT
AS PER HON'BLE COURT
ORDER DATED 07/02/2013) ... APPELLANTS
(BY SRI GANAPATI HEGDE, SENIOR COUNSEL FOR
SRI VISHWANATH HEGDE, ADVOCATE FOR A1 (A TO E))
AND:
NAGAPPA BASAPPA KOLLUR
AGED ABOUT 73 YEARS,
OCC: RETIRED EMPLOYEE AND AGRIL,
R/O. 1068/IV, KULAGI ROAD,
DANDELI, TALUK HALIYAL. ... RESPONDENT
(BY SRI S.B. HEBBALLI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGEMENT & DECREE DATED 26/08/2008 PASSED IN
R.A.NO.383/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
YELLAPUR, DISMISSING THE APPEAL AND THE JUDGEMENT AND
DECREE DATED 26/02/2005 PASSED IN O.S.NO.14/1999 ON THE
FILE OF THE CIVIL JUDGE (JR.DN.), DANDELI, FILED FOR
MANDATORY AND PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
21/12/2023 FOR JUDGMENT AND COMING FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
-3-
JUDGMENT
The present second appeal by the defendant,
assailing the concurrent findings of the Courts below,
whereby, the suit seeking declaration that the plaintiff has
a right to use the road, i.e., suit property, mandatory and
permanent injunction was decreed.
2. This Court, while admitting the appeal on
16.09.2013, framed the following substantial questions of
law:
"(i) Whether both the Courts have rightly
appreciated on pleadings and evidence available on
record to ascertain whether plaintiff was not having
alternate road to reach his property other than
through suit schedule property?
(ii) Whether the plaintiff had title to the property
which was in possession and also right to seek
easement as appended to property belonging to
him as on that date?
(iii) Whether both the Courts below were right in
ignoring the unchallenged finding in Ex.P-26 in a
dispute between the parties way-back in the year
1999?"
3. Learned senior counsel, Sri Ganapathi Hegde
appearing for Sri Vishwanath Hegde, learned counsel for
the appellant and Sri S.B.Hebballi, learned counsel
appearing for the respondent have been heard on the
substantial questions of law framed by this Court and
perused the material on record.
4. The parties herein are referred to as per their
ranking before the trial Court for the sake of convenience.
5. The description of the suit property is the "road
passing through Block No.1/B leading to the house of the
plaintiff measuring east-west 172' ft. and width of 12' ft.
shown as "C" and "D" in the hand sketch map annexed to
the plaint situated near Ishwar Temple, Kulgi Road,
Dandeli (hereinafter referred to as "the suit property" for
the sake of convenience).
6. Suit for permanent injunction restraining the
defendant, his friends, agents, relatives, representatives
or anybody else acting on his behalf personally and
obstruction of the plaintiff's from peaceful use, vahivat
and enjoyment of the suit property, granting mandatory
injunction directing the defendant to remove and
dismantle the constructed compound wall and the
compound gate constructed by the defendant at points "A"
and "B" and make the way clear as prior to the filing of
the suit and failure to do so, a Court Commissioner to be
appointed to remove and dismantle the compound wall
and the gate, clear the road for peaceful use and
enjoyment of the suit property and to declare that the
plaintiff has a right to use the road, i.e., the suit property.
7. The plaintiff contended that from the main
Dandeli Kulgi Road passing through Block No.1/B leading
to the house and farm of the plaintiff, the road is in
existence since last more than 30 years, the plaintiff is in
actual use in wahivat and enjoyment of the road. The suit
property is the only way for the plaintiff to come to the
main Dandeli Kulgi Road and to carry his agricultural
products and equipments. That, there are houses of other
persons on either side of the road till point "A" shown in
the hand sketch map and the road is also used by other
people of the area to go to the river. It is contended that,
the defendant is trying to dig across the suit property at
"A" and "B" with an intention to construct a compound
wall illegally, though, he had no manner of right, title and
interest over the suit property and hence, the suit is filed
with the prayers stated supra. By way of amendment, the
plaintiff sought right of way over the suit property.
8. Pursuant to the notice issued by the trial Court,
defendant appeared through his counsel and filed his
written statement, inter alia, contending that the
description of the suit property given by the plaintiff is not
admitted and so also the hand sketch map annexed to the
plaint.
9. That the defendant is carrying on business of
bricks manufacturing in the said property and as such, got
the area protected by compound wall on all the sides
except the river side. The defendant contended that there
is no road or any right of way in the property of the
defendant as alleged by the plaintiff. In view of the
amendment sought by the plaintiff, that there is a right of
way over the suit property, the defendant contended that
the right of way over the suit property, which has been
sought by the plaintiff, is not maintainable without seeking
declaration.
10. By way of additional written statement, the
defendant contended that the plaintiff has no locus standi
to question the legitimate use and enjoyment of the
property belonging to the defendant and there is no
access at all in the suit property as alleged by the plaintiff.
11. The trial Court initially on 09.08.2001, framed
the following:
"ISSUES
1) Whether the plaintiff proves the description of
the suit property is proper and correct?
2) Whether the plaintiff proves the existence of
road at print C to D as shown in the hand
sketch map?
3) Whether the plaintiff proves that the suit road
is in use and enjoyment of plaintiff as claimed
in suit?
4) Whether the plaintiff proves the interference of
defendants as claimed in the suit?
5) Whether the suit is not maintainable without
the relief of declaration?
6) Whether the suit is bad for non-joinder of
necessary party as claimed in para 12 of W.S.?
7) Whether the plaintiff is entitled for the relief
claimed in suit?"
Subsequently, by recasting the issues, the trial Court
framed the following:
"RECASTED ISSUES
"1) Whether plaintiff proves that he is making use
and enjoyment of 'C D' road passing through
Block No.1/b?
2) Whether plaintiff proves the alleged
obstruction?
3) Whether plaintiff proves that defendant has
constructed compound wall and fixed gate at
point 'A'?
4) Whether plaintiff is entitle for relief sought?"
12. In order to substantiate his claim, plaintiff
examined himself as PW.1 and got marked documents at
Exs.P-1 to P-28. On the other hand, defendant got
examined himself as DW.1 and got marked documents at
Exs.D-1 to D-36.
13. The trial Court, on the basis of the pleadings,
oral and documentary evidence on record held that:
- 10 -
(a) The plaintiff is making use of the suit road passing
through Block No.1/B;
(b) The plaintiff has proved that the defendant has
constructed a wall and fixed gate at point "A"
and by the judgment and decree, decreed the suit
holding that the plaintiff has got the right of easement
over the suit way and the defendant was directed to
remove the compound wall constructed over the suit way
within fifteen days.
14. Feeling aggrieved by the judgment and decree
of the trial Court, the defendant preferred regular appeal
before the first appellate Court. The first appellate Court
framed the following points for consideration:
"Point No.1:- Whether the appellant/defendant is
having any right over the road
situated in block No.1/B or other
land in block No.1/B so as to
obstruct the plaintiff from using the
road in question?
- 11 -
Point No.2:- Whether the judgment and decree of
the lower court calls for interference
with by this court?"
and the first appellate Court concurred with the
judgment and decree of the trial Court.
15. Aggrieved by the decreetal of the suit, the
defendant is in second appeal.
16. Before considering the merits of the second
appeal, the scope and ambit of the second appeal under
Section 100 CPC, the interference by this Court need to be
considered. The Apex Court in catena of judgments in
line, held that the interference of second appeal under
Section 100 is amenable to the High Court, only when the
finding is based on perversity and when the appellate
Court has not re-appreciated the entire oral and
documentary evidence, the appreciation of evidence are
exception to the rule pointed out by this Court. The
following are the judgments of the Apex Court:
- 12 -
(I) The Apex Court, in the case of Hero Vinoth
(minor) vs. Seshammal1 at paragraph No.24 held as
under:
"24. The principles relating to Section 100 CPC
relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents
of a document is a question of fact. But the legal
effect of the terms of a document is a question of
law. Construction of a document involving the
application of any principle of law, is also a
question of law. Therefore, when there is
misconstruction of a document or wrong application
of a principle of law in construing a document, it
gives rise to a question of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case (that
is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding
AIR 2006 SC 2234
- 13 -
precedents, and, involves a debatable legal issue. A
substantial question of law will also arise in a
contrary situation, where the legal position is clear,
either on account of express provisions of law or
binding precedents, but the court below has
decided the matter, either ignoring or acting
contrary to such legal principle. In the second type
of cases, the substantial question of law arises not
because the law is still debatable, but because the
decision rendered on a material question, violates
the settled position of law.
(iii) The general rule is that High Court will not
interfere with the concurrent findings of the courts
below. But it is not an absolute rule. Some of the
well-recognised exceptions are where (i) the courts
below have ignored material evidence or acted on
no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast
the burden of proof. When we refer to 'decision
based on no evidence', it not only refers to cases
where there is a total dearth of evidence, but also
refers to any case, where the evidence, taken as a
whole, is not reasonably capable of supporting the
finding."
- 14 -
(II) In similar line, the Apex Court in the case of
Rajasthan State Road Transport Corporation and
another vs. Bajrang Lal2 at paragraph Nos.18, 19 and
20 held as under:
"18. The appellate court committed a grave
error by declaring the enquiry as non est. The
termination order as a consequence thereof stood
vitiated though there is no reference to any
material fact on the basis of which such a
conclusion was reached. The finding that copy of
the documents was not supplied to the respondent-
plaintiff, though there is nothing on record to show
that how the documents were relied upon and how
they were relevant to the controversy involved,
whether those documents had been relied upon by
the enquiry officer and how any prejudice had been
caused by non-supply of those documents, is
therefore without any basis or evidence. When the
matter reached the High Court in second appeal,
the High Court refused to examine the issue at all
by merely observing that no substantial question of
law was involved and the findings of fact, however
erroneous, cannot be disturbed in second appeal.
(2014) 4 SCC 693
- 15 -
19. With all respect, we do not agree with
such a conclusion reached by the High Court, as
second appeal, in exceptional circumstances, can
be entertained on pure questions of fact. There is
no prohibition for the High Court to entertain the
second appeal even on question of fact where
factual findings are found to be perverse.
20. In Ibrahim Uddin this Court held : (SCC
pp. 175-76, paras 65 & 67-68)
"65. In Suwalal Chhogalal v. CIT the Court held
as under : (ITR p. 277)
'... A fact is a fact irrespective of the evidence by
which it is proved. The only time a question of law
can arise in such a case is when it is alleged that
there is no material on which the conclusion can be
based or no sufficient material.'
***
67. There is no prohibition to entertain a second
appeal even on question of fact provided the Court
is satisfied that the findings of the courts below
were vitiated by non-consideration of relevant
evidence or by showing erroneous approach to the
matter and findings recorded in the court below are
perverse. [Vide Jagdish Singh v. Natthu Singh,
Prativa Devi v. T.V. Krishnan, Satya Gupta v.
Brijesh Kumar, Ragavendra Kumar v. Prem
- 16 -
Machinery & Co., Molar Mal v. Kay Iron Works (P)
Ltd, Bharatha Matha v. R. Vijaya Renganathan and
Dinesh Kumar v. Yusuf Ali.]
68. In Jai Singh v. Shakuntala this Court held
that (SCC p. 638, para 6) it is permissible to
interfere even on question of fact but it may be
only in
'very exceptional cases and on extreme perversity
that the authority to examine the same in extenso
stands permissible--it is a rarity rather than a
regularity and thus in fine it can be safely
concluded that while there is no prohibition as
such, but the power to scrutiny can only be had in
very exceptional circumstances and upon proper
circumspection'.
Similar view has been taken in Kashmir
Singh v. Harnam Singh "
(emphasis in original)"
(III) Similar observations were made in the case of
D.R. Rathna Murthy vs. Ramappa3 and at paragraph
No.9, the Apex Court held as under:
(2011) 1 SCC 158
- 17 -
"9. Undoubtedly, the High Court can interfere
with the findings of fact even in the second appeal,
provided the findings recorded by the courts below
are found to be perverse i.e. not being based on
the evidence or contrary to the evidence on record
or reasoning is based on surmises and misreading
of the evidence on record or where the core issue is
not decided. There is no absolute bar on the
reappreciation of evidence in those proceedings,
however, such a course is permissible in
exceptional circumstances. (Vide Rajappa
Hanamantha Ranoji v. Mahadev Channabasappa,
Hafazat Hussain v. Abdul Majeed and Bharatha
Matha v. R. Vijaya Renganathan.)"
17. The general rule is that, the High Court will not
interfere with the concurrent findings of the Courts below,
however, the said rule is not an absolute rule and certain
exceptions are well recognized where the Court can
interfere when the Courts below have ignored the material
evidence or acted on no evidence and arrives at the wrong
inferences from the proved facts. The High Court could
interfere when it is satisfied that the judgment and decree
- 18 -
of the Courts below suffers from perversity and illegality
warranting interference by this Court. Keeping in view the
above principles, this Court has considered the substantial
questions of law framed by this Court in this second
appeal.
18. The rival contentions urged by the learned
counsel for the parties and the material on record have
been carefully considered by this Court.
19. Before adverting to the merits of the regular
second appeal and answering of the substantial questions
of law, it is necessary to consider the interim applications,
which have been filed by the plaintiff and the defendant in
this second appeal.
(a) I.A.No.1/2013 is filed by the appellant for production
of additional evidence and this Court, vide order
dated 03.01.2019, ordered that I.A.No.1/2013 for
- 19 -
production of additional evidence to be considered at
the time of final hearing.
(b) I.A.No.1/2023 is filed by the appellant seeking
amendment of the memorandum of appeal under
Order VI Rule 17 read with Section 151 CPC.
(c) I.A.No.2/2023 is filed by the appellant under Section
100 read with Section 151 CPC seeking to frame
additional substantial question of law.
(d) I.A.No.3/2023 is filed by the respondent-plaintiff
seeking for amendment of the plaint under Order VI
Rule 17 CPC to substitute the word "Block No.1/A 1"
instead of "Block No.1/B" wherever they appear in
the plaint.
(e) The respondent-plaintiff has not filed objections to
I.A.No.1/2013, I.A.No.1/2023 and 2/2023.
(f) The appellant - defendant has filed objections to
I.A.No.3/2023 seeking amendment of plaint by
respondent-plaintiff.
- 20 -
20. I.A.No.1/2013 is filed by the appellant-
defendant for production of following documents:
i. Sale Deed dated 06.04.2006 between Arjun S/o
Devappa Mirashi and others in favour of Chandansingh
Mahendrasingh Parihar (defendant) in respect of Block
No.1/A 1 measuring 02 acres 09 guntas 14 anas;
ii. Certified copy of the sale deed dated
08.07.2010 by Arjun Devappa Mirashi and others in favour
of the plaintiff in respect of Block No.1/A1/8 measuring 33
guntas
iii. No objections have been filed by the
respondent-plaintiff for production of additional evidence,
the sale deeds dated 06.04.2006 and 08.07.2010
purchased by the appellant-defendant and respondent-
plaintiff has also been produced by the respondent-
plaintiff along with I.A.No.3/2023.
iv. The plaintiff and defendant being owners of
respective portion is not disputed by either of them, the
- 21 -
documents along with I.A.No.1/2013 are therefore taken
on record as additional evidence.
21. I.A.No.1/2023 is by the appellant for
amendment of the memorandum of appeal and the factual
aspects have been sought to be amended in the
memorandum of appeal, the application has not objected
by filing objections, the amendment sought is only
narrating the factual aspect and in the said circumstances,
I.A.No.1/2023 is allowed.
22. I.A.No.2/2023 is by the appellant seeking to
frame additional substantial question of law, this Court is
of the considered view that the substantial question of law
framed by this Court on 16.09.2013 covers the entire
aspect which is sought to be framed by additional
substantial question of law by the appellant and hence,
I.A.No.2/2023 is disposed of.
- 22 -
23. I.A.No.3/2023 is filed for amendment of the
plaint under Order VI Rule 17 CPC. The amendment
sought is to the description of the suit property in the
plaint as under:
"Substitute the word, "Block No.1/A 1" instead of
"Block No.1/B" wherever they appear in the plaint,
namely, at 4th line in Para 2, at 3rd and 9th line in
Para 3 of the plaint."
24. The respondent-plaintiff in his plaint avers that
there is a road measuring east-west 172 ft. and width of
12 ft. shown as 'C' 'D' in the hand sketch annexed to the
plaint and it is further stated that in the plaint, the road
described as CD passes through Block No.1/B and the
prayer sought in the plaint after amendment before the
Trial Court is to declare that the plaintiff has right to pass
through this property and also for removal of the
obstruction put up by the defendant. It is the case of the
plaintiff in the suit that, the road described as "CD" in the
plaint passes through Block No.1/B situated in Dandeli,
- 23 -
further, the road leads to the farm house of the plaintiff
and house of the defendant, the house of the defendant is
described as "M" in the hand sketch map. It is contended
that the registered sale deed has been executed by the
common vendor in favour of the plaintiff on 08.07.2010
and it is described as 1/A1/8 and the registered sale had
been sought to be produced and at para No.6 of the
affidavit accompanying I.A.No.3/2023 states as under:
"6. The Plaintiff purchased the Farm House
described in the plaint under a Registered Sale
Deed dated 08.07.2010 from its previous vendor
and his farm house is described as Block 1/A1/8.
The copies of the Registered Sale Deed and the
RTC extract for the year 2022-23 are respectively
produced herein as Documents Nos.1 and 2. The
Defendant also purchased his house under a
Registered Sale Deed dated 06.04.2006 from its
previous common owner which is described as
Block No.1/A1 and the same is described as Block
No.1/A1/7 in the RTC extract. The copy of the
registered sale deed in favour of the Appellant -
Defendant and also the RTC extract are
respectively produced along with this application as
- 24 -
per Documents Nos.3 and 4. It is the case of the
Plaintiff that he is possession of the farm house
prior to the sale deed under which he has
purchased. Thus these two sale deeds describe that
the suit property lies in Block 1/A1 and not in Block
1/B. The Plaintiff was under a bonafide impression
that the property belonging to the Plaintiff and
Defendants are situated in Block No.1/B of Dandeli.
Thus he described the road C D in the hand sketch
as passing thorough Block No.1/B of Dandeli. Both
the parties went to trial under the impression that
the suit property is Block No.1/B of Dandeli. Even
this mistake which has happened through
inadvertence was not noticed by Defendant -
Appellant also since the same is not objected as on
today by the Defendant - Appellant. This mistake
was noticed by the Plaintiff at the time when he got
executed the Registered Sale Deed in his favour
and also in favour of the Defendant. This has
necessitated the Plaintiff to seek the amendment of
plaint for substitution of Block number 1/A1 instead
of Block No.1/B, more fully described in the
application."
25. Learned counsel for the respondent would
contend that the plaintiff under the bona fide impression
- 25 -
that the property belonging to the plaintiff and defendant
are situated in Block No.1/B of Dandeli and thus, had
described the road "CD" in hand sketch map as passing
through Block No.1/B of Dandeli and the mistake in
describing the suit schedule property is by inadvertence
under the wrong impression about the description of the
suit property, until the same was noticed by the plaintiff
while getting sale deeds executed in favour of each of the
parties.
26. The appellant - defendant filed objections to
the application, inter alia, contending that the application
is misconceived, barred by limitation, suppression of facts
and the amendment sought changes the very nature of
the suit.
27. Learned senior counsel, adverting to the
objections raised by the appellant - defendant, would
contend that the application has to be dismissed on the
- 26 -
ground of delay and laches and also description of the suit
property, now sought to be changed by the plaintiff,
introduce a new property after a period of 25 years and
sought for dismissal of the application.
28. The application seeking amendment is in
respect of substituting the word "Block No.1/A1" instead
of "Block No.1/B". The hand sketch annexed to the plaint
is as under:
C
A
M
Defendant
Path
way
B
D
N Plaintiff
1B
- 27 -
29. Both the parties went in trial understanding
that the suit property is Block No.1/A1 and the registered
sale deed in favour of the plaintiff and the defendant has
been produced by the plaintiff as well as the defendant,
necessitating the plaintiff to seek amendment of plaint for
substitution. The substitution sought does not change the
nature of the property and the amendment neither
prejudices the defendant. In order to adjudicate and
arrive at a proper conclusion, the amendment sought by
the respondent-plaintiff needs to be allowed by permitting
the plaintiff - respondent to amend the plaint and
correction of suit property by way of amendment is only a
typographical error, which this Court is of the considered
view the permission needs to be accorded, accordingly,
I.A.No.3/2023 is hereby allowed. On amendment of the
plaint, opportunity to file additional written statement,
further evidence is not necessary, as the dispute is with
regard to the usage of the suit property.
- 28 -
30. Though the appellant-defendant sought to raise
several other substantial questions of law and grounds in
support of his case, the substantial question of law raised
has been entirely covered by the substantial question of
law framed by this Court on 16.09.2013.
31. The trial court initially framed the issues and
suo moto deleted the earlier issues framed. Suo moto
deletion by the trial Court, the material issues that were
framed and recasted in the earlier issues framed, which
precisely define the scope, trial and burden of proof, gave
an unfair advantage to the respondent - plaintiff, of not
having to prove the existence of the suit property, as well
as the house property and farm land with respect to which
he sought to access the road and consequently, such
deletion of material issues derailed the entire proceeding.
32. The object and purpose of the pleadings and
issue is to ensure that the litigants come into trial with all
- 29 -
the issues clearly define, to prevent the scope being
expanded or stands being shifted during trial and
preventing any deviation from the Courts from which the
litigation on particular causes must take. The suo moto
recasting of the originally framed issues, by the trial Court
without affording any opportunity to the parties of being
heard and hence, the same is in violation of Order XL Rule
5 CPC.
33. The appellant-defendant would contend that,
no relief whatsoever could be granted in favour of the
plaintiff by the Courts below, when evidently plaint avers
the suit schedule which described the existence of a road
in Block No.1/B and demonstrate the property of the
appellant-defendant situated in Block No.1/A1, the said
fact is not appraisable to the Court, in view of the fact of
allowing of the application for amendment, the said
contention of the appellant that no relief can be granted in
- 30 -
light of not describing the suit property properly is not
sustainable.
34. The trial Court proceeded on assumption of
existence of road as described in the suit schedule,
whereas, the original issues which was based on the
pleadings of the parties, cast the burden on the
respondent-plaintiff to prove the existence of the suit
schedule property and the manner of acquisition of his
right, if any, it is for the user determined of the appellant
and consequently, the entire suit was derailed and the
trial Court as well as the first appellate Court by raising
wrong questions/issues to answer, eventually ended in
answering the wrong questions/issues wrongly and the
wrong question would necessarily dissent in a wrong
answer and accordingly, the substantial question of law is
answered in favour of the appellant.
- 31 -
35. The Apex Court, in the case of Bachhaj Nahar
vs. Nilima Mandal and another4 (Bachhaj Nahar) has
held as under at para No.10:
"10. The object of issues is to identify from the
pleadings the questions or points required to be
decided by the courts so as to enable parties to let in
evidence thereon. When the facts necessary to make
out a particular claim, or to seek a particular relief,
are not found in the plaint, the court cannot focus
the attention of the parties, or its own attention on
that claim or relief, by framing an appropriate issue.
As a result the defendant does not get an
opportunity to place the facts and contentions
necessary to repudiate or challenge such a claim or
relief. Therefore, the court cannot, on finding that
the plaintiff has not made out the case put forth by
him, grant some other relief. The question before a
court is not whether there is some material on the
basis of which some relief can be granted. The
question is whether any relief can be granted, when
the defendant had no opportunity to show that the
relief proposed by the court could not be granted.
AIR 2009 SC 1103
- 32 -
When there is no prayer for a particular relief and no
pleadings to support such a relief, and when
defendant has no opportunity to resist or oppose
such a relief, if the court considers and grants such a
relief, it will lead to miscarriage of justice. Thus it is
said that no amount of evidence, on a plea that is
not put forward in the pleadings, can be looked into
to grant any relief."
36. The materials on record indicate that, before
the trial court, an amendment was sought for declaration
that the plaintiff has the right to use the road, i.e., the suit
property, but there is no claim for easmentary rights over
the suit schedule property, what is claimed by the plaintiff
is, the existence of a road and the Courts below have
erroneously gone to the extent of holding that the plaintiff
is claiming the easmentary right over the appellant's-
defendant's property and the discretionary relief as
granted by the Courts below was unwarranted.
- 33 -
37. The plaintiff's case as evident from para Nos.2
and 3 is that the suit property is the only road for him to
access his suit property which he claimed to be the owner,
the plaintiff asserted that he has been using the property
for more than 30 years and apart from that, there are
other villagers who are using the suit property to go to the
Kali river and by erecting a wall on the suit property and
gate at Point "A" and "B", the appellant-defendant is
trying to obstruct the use of the suit property.
38. The defendant in his written statement has
specifically denied the use of suit property by the plaintiff
to reach his house and farm land from past 30 years.
39. Oral evidence of DW.1 coupled with the
documentary evidence at Ex.D-1 to 19 and D-29 to 36,
clearly indicate that the appellant-defendant, as on the
date of the filing of the suit, was in lawful possession and
enjoyment. The documents produced by the appellant-
- 34 -
defendant itself evidence that the property as annexed in
the hand sketch map at "M" and "N" are the properties in
the respective possession of the plaintiff and the
defendant. There is a difference between the "road" and
the "pathway".
The "road" is defined as under:
"A road is a thoroughfare for the conveyance of
traffic that mostly has an improved surface for use
by vehicles (motorized and non-motorized) and
pedestrians".
The "pathway" is defined as under:
"Pathway is essentially a longer, redundant
way to say "path" a track that a person can
walk along"
40. The plaint averments states that the suit road
has also been used by other people of the area to go to
the river, which according to the plaintiff itself is a public
road and the same is situated in the suit property as per
- 35 -
the amendment. The plaintiff has not produced any piece
of paper to establish that there was a road existing and
the said road has been used by the plaintiff and the other
villagers. Evidently, the pleadings are also silent as to the
nature of right of the plaintiff either is it, by easement of
necessity or easement of prescription. Section 14 of the
Indian Easement Act, 1882 envisages easement of
necessity, while Section 15 of the said Act envisages the
easement of prescription. Section 14 of the Indian
Easement Act, 1882 reads as under:
"14. Direction of way of necessity.-When a
right to a way of necessity is created under section
13, the transferor, the legal representative of the
testator, or the owner of the share over which the
right is exercised, as the case may be, is entitled to
set out the way; but it must be reasonably
convenient for the dominant owner.
When the person so entitled to set out the way
refuses or neglects to do so, the dominant owner
may set it out."
- 36 -
41. Easement of necessity is such a right without
which a property cannot be used at all, it is relevant to
note that there is not even a whisper in the plaint
regarding that the suit property is the only road to
approach.
42. In order to prove the acquisition of
prescription, the plaintiff has to prove that the right was of
peacefully and openly enjoyed by him, claiming title
thereto as easement and as a matter of right and without
interruption. The sale deeds relied upon by the parties
does not evidence about the pathway having been used by
the vendor. The ingredients to attract prescriptive right,
he has to prove the following two counts:
(i) That there was a right of way.
(ii) The said right of way has been used by the
plaintiff since more than 20 years peacefully
and openly enjoyed by him.
- 37 -
43. The Apex Court, in Bachhaj Nahar Stated
supra at para Nos.13 and 14, has held as under:
"13. A perusal of the plaint clearly shows
that entire case of the plaintiffs was that they were
the owners of the suit property and that the first
defendant had encroached upon it. The plaintiffs
had not pleaded, even as an alternative case, that
they were entitled to an easementary right of
passage over the schedule property. The facts to be
pleaded and proved for establishing title are
different from the facts that are to be pleaded and
proved for making out an easementary right. A suit
for declaration of title and possession relates to the
existence and establishment of natural rights which
inhere in a person by virtue of his ownership of a
property. On the other hand, a suit for enforcement
of an easementary right, relates to a right
possessed by a dominant owner/occupier over a
property not his own, having the effect of
restricting the natural rights of the owner/occupier
of such property.
14. Easements may relate to a right of
way, a right to light and air, right to draw water,
right to support, right to have overhanging eaves,
- 38 -
right of drainage, right to a water course etc.
Easements can be acquired by different ways and
are of different kinds, that is, easement by grant,
easement of necessity, easement by prescription,
etc. A dominant owner seeking any declaratory or
injunctive relief relating to an easementary right
shall have plead and prove the nature of easement,
manner of acquisition of the easementary right,
and the manner of disturbance or obstruction to the
easementary right. The pleadings necessary to
establish an easement by prescription, are different
from the pleadings and proof necessary for
easement of necessity or easement by grant. In
regard to an easement by prescription, the plaintiff
is required to plead and prove that he was in
peaceful, open and uninterrupted enjoyment of the
right for a period of twenty years (ending within
two years next before the institution of the suit).
He should also plead and prove that the right
claimed was enjoyed independent of any
agreement with the owner of the property over
which the right is claimed, as any user with the
express permission of the owner will be a licence
and not an easement. For claiming an easement of
necessity, the plaintiff has to plead that his
dominant tenement and defendant's servient
- 39 -
tenement originally constituted a single tenement
and the ownership thereof vested in the same
person and that there has been a severance of such
ownership and that without the easementary right
claimed, the dominant tenement cannot be used.
We may also note that the pleadings necessary for
establishing a right of passage is different from a
right of drainage or right to support of a roof or
right to water course. We have referred to these
aspects only to show that a court cannot assume or
infer a case of easementary right, by referring to a
stray sentence here and a stray sentence there in
the pleading or evidence."
44. Easement is such a right, which is been claimed
by one person over the property on another. In a suit,
ordinarily, the Court can find a case and decree the suit
only on the basis of the pleadings of the parties. But
when a claim is on the basis of easement of rights, it is all
the more necessary that the pleadings should be specific
and precise. There is reason therefore: 'Easement' is a
precarious and special right, the right of easement is one
which a person claims over a land, which is not his own.
- 40 -
Since the right of easement is a precarious and special
rights claimed over the land of another, it is highly
essential that the pleadings should be precise and the
evidence to the said fact should be in consonance of the
pleadings. The easement of prescription as envisaged
under Section 15 of the Indian Easement Act, 1882 reads
as under:
"15. Acquisition by prescription.--Where the
access and use of light or air to and for any building
have been peaceably enjoyed therewith, as an
easement, without interruption, and for twenty
years, and where support from one person's land or
things affixed thereto has been peaceably received
by another person's land subjected to artificial
pressure or by things affixed thereto as an
easement, without interruption, and for twenty
years, and where a right of way or any other
easement has been peaceably and openly enjoyed
by any person claiming title thereto, as an
easement, and as of right, without interruption, and
for twenty years, the right to such access and use of
light or air, support or other easement shall be
absolute. Each of the said periods of twenty years
- 41 -
shall be taken to be a period ending within two years
next before the institution of the suit wherein the
claim to which such period relates is contested.
Explanation I.--Nothing is an enjoyment within the
meaning of this section when it has been had in
pursuance of an agreement with the owner or
occupier of the property over which the right is
claimed, and it is apparent from the agreement that
such right has not been granted as an easement, or
if granted as an easement, that it has been granted
for a limited period, or subject to a condition on the
fulfillment of which it is to cease.
Explanation II.--Nothing is an interruption within the
meaning of this section unless where there is an
actual cessation of the enjoyment by reason of an
obstruction by the act of some person other than the
claimant, and unless such obstruction is submitted to
or acquiesced in for one year after the claimant has
notice thereof and of the person making or
authorizing the same to be made.
Explanation III.--Suspension of enjoyment in
pursuance of a contract between the dominant and
servient owners is not an interruption within the
meaning of this section.
- 42 -
Explanation IV.--In the case of an easement to
pollute water, the said period of twenty years begins
when the pollution first prejudices perceptibly the
servient heritage.
When the property over which a right is claimed
under this section belongs to the [Government], this
section shall be read as if, for the words "twenty
years", the words "[thirty years]" were substituted."
45. However, the plaint averments indicate to be a
public road, the proof of existence of property as opposed
to proof of right of way which has been fructified into a
easement of necessary are different. To prove the
existence of public road, one is required to produce the
public records maintained by the competent authorities
who are authorised to maintain such records i.e., the
Department of Land Records, admittedly not a scrap of
paper is produced which shows the existence of the suit
schedule road. Much reliance is placed by both the Courts
to believe the story of the respondent - plaintiff to hold
that the suit schedule property exists at Ex.P-28. Ex.P-28
- 43 -
clearly indicates that it is a rough hand sketch prepared by
the City Municipal Corporation for the purpose of showing
land upon which the houses under Ashraya Scheme were
being constructed. It is not an authoritative document
prepared by the competent authority which would exhibit
for establishing the existence of the suit schedule property
by the plaintiff. Ex.P-28 nowhere indicates or
demonstrates the existence of the suit property, further,
the authenticity and reliability of Ex.P-28 itself gets diluted
by the admission of the plaintiff in his cross-examination
as held as under:
"¤.¦.28 GvÁgÀ vÀAiÀiÁj¸ÀĪÁUÀ £ÀUÀgÀ¸À¨sÉAiÀĪÀgÀÄ
¥ÀæwªÁ¢UÉ £ÉÆÃnøÀÄ PÉÆnÖgÀĪÀÅ¢®è"
46. The burden of proving the said document is on
the person who wants to rely on the said map or the plan.
Ex.D-23 is the village map produced by the defendant
showing the location of the defendant's property and also
Block No.1/B marked at Ex.D-23. Ex.D-23 nowhere
- 44 -
indicates any reference whatsoever regarding the
existence of the suit property which passes through the
land Block No.1/B or Block No.1/A1. The Courts below
believed the existence and user of the same by the
respondent-plaintiff and the impugned judgments of the
Courts below do not inspire the confidence of this Court,
the approach of the trial Court to decree the suit is in a
very casual manner and totally lost sight that no material
are forth coming that suit property is a road or a pathway
used by plaintiff for more than 30 years.
47. The order of the first appellate Court is a non-
speaking order and has completely failed to exercise its
discretion vested in it under Section 96 of the CPC. The
first appellate Court being the last fact finding Court ought
to have re-appreciated and reconsidered the entire oral
and documentary evidence as held by the Apex Court, in
- 45 -
the case of Santosh Hazari vs. Purushottam Tiwari
(Deceased) by L.Rs.5 at para No.15, has held as under:
"15. A perusal of the judgment of the trial
court shows that it has extensively dealt with the
oral and documentary evidence adduced by the
parties for deciding the issues on which the parties
went to trial. It also found that in support of his
plea of adverse possession on the disputed land,
the defendant did not produce any documentary
evidence while the oral evidence adduced by the
defendant was conflicting in nature and hence
unworthy of reliance. The first appellate court has,
in a very cryptic manner, reversed the finding on
question of possession and dispossession as alleged
by the plaintiff as also on the question of adverse
possession as pleaded by the defendant. The
appellate court has jurisdiction to reverse or affirm
the findings of the trial court. First appeal is a
valuable right of the parties and unless restricted
by law, the whole case is therein open for rehearing
both on questions of fact and law. The judgment of
the appellate court must, therefore, reflect its
conscious application of mind and record findings
(2001) 3 SCC 179
- 46 -
supported by reasons, on all the issues arising
along with the contentions put forth, and pressed
by the parties for decision of the appellate court.
The task of an appellate court affirming the findings
of the trial court is an easier one. The appellate
court agreeing with the view of the trial court need
not restate the effect of the evidence or reiterate
the reasons given by the trial court; expression of
general agreement with reasons given by the court,
decision of which is under appeal, would ordinarily
suffice (See Girijanandini Devi v. Bijendra Narain
Choudhary [AIR 1967 SC 1124] ). We would,
however, like to sound a note of caution.
Expression of general agreement with the findings
recorded in the judgment under appeal should not
be a device or camouflage adopted by the appellate
court for shirking the duty cast on it. While writing
a judgment of reversal the appellate court must
remain conscious of two principles. Firstly, the
findings of fact based on conflicting evidence
arrived at by the trial court must weigh with the
appellate court, more so when the findings are
based on oral evidence recorded by the same
Presiding Judge who authors the judgment. This
certainly does not mean that when an appeal lies
on facts, the appellate court is not competent to
- 47 -
reverse a finding of fact arrived at by the trial
Judge. As a matter of law if the appraisal of the
evidence by the trial Court suffers from a material
irregularity or is based on inadmissible evidence or
on conjectures and surmises, the appellate court is
entitled to interfere with the finding of fact.
(See Madhusudan Das v. Narayanibai [(1983) 1
SCC 35 : AIR 1983 SC 114] ) The rule is -- and it is
nothing more than a rule of practice -- that when
there is conflict of oral evidence of the parties on
any matter in issue and the decision hinges upon
the credibility of witnesses, then unless there is
some special feature about the evidence of a
particular witness which has escaped the trial
Judge's notice or there is a sufficient balance of
improbability to displace his opinion as to where
the credibility lie, the appellate court should not
interfere with the finding of the trial Judge on a
question of fact. (See Sarju Pershad Ramdeo
Sahu v. Jwaleshwari Pratap Narain Singh [1950
SCC 714 : AIR 1951 SC 120] ) Secondly, while
reversing a finding of fact the appellate court must
come into close quarters with the reasoning
assigned by the trial court and then assign its own
reasons for arriving at a different finding. This
would satisfy the court hearing a further appeal
- 48 -
that the first appellate court had discharged the
duty expected of it. We need only remind the first
appellate courts of the additional obligation cast on
them by the scheme of the present Section 100
substituted in the Code. The first appellate court
continues, as before, to be a final court of facts;
pure findings of fact remain immune from challenge
before the High Court in second appeal. Now the
first appellate court is also a final court of law in
the sense that its decision on a question of law
even if erroneous may not be vulnerable before the
High Court in second appeal because the
jurisdiction of the High Court has now ceased to be
available to correct the errors of law or the
erroneous findings of the first appellate court even
on questions of law unless such question of law be
a substantial one."
48. It is also relevant to note that Ex.P-26 is a
document, which is drawn before the jurisdictional police
pursuant to the complaint lodged by the respondent -
plaintiff against alleged construction of the suit schedule
property. The said document has been produced in a
criminal case, which acquitted the appellant-defendant of
- 49 -
committal of any offence as alleged. Though the said
material, acquittal of the appellant - defendant would
have less consequence as the proceedings before the
criminal Court is on the benefit of doubt and in the civil
proceedings, it is beyond reasonable doubt. Ex.P-26 is at
an undisputed point of time, which forms part of another
judicial precedent, assumes great significance and has
great evidentiary value and destroys and negates the case
of the plaintiff and the existence of the suit schedule
property. Ex.P-26 goes to show that the road which
connects the property situated on the west of the property
belonging to the appellant-defendant bearing Block
No.1/A1 runs behind the appellant's property and
therefore, assuming and not admitting that the property
on the west side of the appellant-defendant's property
belongs to the plaintiff and the same can be assessed that
the road, which runs and passes behind the appellant's
property and demonstrates that there is an existence of
- 50 -
an alternate road to access the property situated on the
west of the appellant-defendant's property. The easement
of necessity must be an absolute right and not merely
convenient mode of enjoyment of the property, as such,
an easement of necessity cannot be granted on the
ground of convenience and advantage.
49. The existence of a passage to connect the
house property and the farm land of the respondent-
plaintiff passing through the appellant's property. At the
best, same can be claimed on the ground of convenience
and advantage and not as a ground of absolute necessity,
since there is an alternative road which connects the
property to the west of the appellant-defendant's
property. The contention raised by the plaintiff that it is
his property and has no other access is totally misleading
and false. The existence of a right way which is a private
right can be established through the document, there is no
express or categorical pleading in the plaint as to the
- 51 -
manner in which the respondent-plaintiff has acquired the
so called easementary right on road as pleaded. The
Courts below have failed to apply their mind to the
pleadings of the parties and evidence produced and
leading to perversity of the order. The Apex Court in the
case of Suresh Lataruji Ramteke vs. Sau. Sumanbai
Pandurang Petkar and others (Civil Appeal
No.6070/2023)6, which practically reviews the entire
case law on the scope of second appeal while relying on
the earlier judgment of the Apex Court in Nazir
Mohamed vs. J.Kamala and others7 has clearly
recognised that where, (i) Courts below have ignored the
evidence or acted no evidence, (ii) the Courts have drawn
inference from proof facts by applying the law erroneously
or (iii) the Courts have wrongly cast the burden of proof, a
second appeal can interfered with and the substantial
question of law are answered holding the Courts below
2023 SCC Online SC 1210
(2020)19 SCC 57
- 52 -
have not properly appreciated the pleadings and evidence
available on record to ascertain whether the plaintiff was
not having alternate road to reach his property other than
through suit property nor the plaintiff had right to seek
easementary without any corroborating evidence and
Courts below were not justified in ignoring Ex.P-26.
50. The first appellate Court which is entrusted with
the power of re-looking the case in its entirety as being
the last fact finding court and the jurisdiction of the first
appellate court is amenable to all facts since the
concurrent findings of the courts below are not amenable
in the second appeal under Section 100 of CPC. Thus, the
appellate Court should have cautiously looked into all the
material and arrived at a right conclusion.
51. Placing and bearing the principles of law laid
down the vulnerability of the second appeal before this
Court warrants interference and the substantial question
- 53 -
of law is answered in favour of the appellant-defendant
and accordingly, this Court pass the following:
ORDER
(i) The regular second appeal is hereby allowed.
(ii) The judgment and decree of the Courts below is
hereby set aside.
(iii) The suit of the plaintiff is dismissed.
Sd/-
JUDGE
S*
