Karnataka High Court
Sri Shailesh vs Sri Jeetendra Dayalji Majethia on 2 July, 2024
-1-
NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 2695 OF 2006 (PAR-)
C/W
REGULAR SECOND APPEAL NO. 2697 OF 2006
REGULAR SECOND APPEAL NO. 2698 OF 2006
IN RSA NO. 2695/2006
BETWEEN:
1. SMT SUSHEELA BHAWARLALJI BHANDARI
SINCE DECEASED BY LR'S
1A SRI MUKESH
W/O BHAWARLALJI BHANDARI
AGE: ABOUT 54 YEARS,
OCC: BUSINESS,
Digitally signed
by SAROJA R/O DESHPANDE NAGAR,
HANGARAKI NEELIGEN ROAD,
Location: HIGH HUBBALLI-580029,
COURT OF DIST. DHARWAD.
KARNATAKA
DHARWAD 1B SMT. SHASHI
BENCH W/O HITESH SANCHETI,
DHARWAD AGE: ABOUT 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O DESHPANDE NAGAR,
NEELIGEN ROAD,
HUBBALLI-580029,
DIST. DHARWAD.
1C SMT. GEETA W/O VIPUL SOLANKI,
AGE: ABOUT 45 YEARS,
OCC: HOUSEHOLD WORK,
-2-
NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
R/O DESHPANDE NAGAR,
NEELIGEN ROAD, HUBBALLI-580029,
DIST. DHARWAD.
2. SRI RAJESH BHAWARLALJI BHANDARI
AGED ABOUT 40 YEARS,
OCC: BUSINESS,
R/AT DESHPANDE NAGAR,
NEELIGIN ROAD, HUBBALLI.
...APPELLANTS
(BY SRIYUTHS M.R.MULLA, P.C.SAJJANAR AND
VISHWANATH S. BICHAGATTI, ADVOCATES)
AND:
1. SRI JEETENDRA DAYALJI MAJETHIA
AGE: 52 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI.
2. SMT. RAMILA W/O JEETENDRA MAJETHIA,
AGE: 50 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI-580029, DIST: DHARWAD.
...RESPONDENTS
(BY SRI PRAKASH K. JAWALKAR AND
SRI S.B.PATIL, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 17.07.2006 PASSED IN
R.A.NO.165/2004 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE
(SR.DN.), HUBBALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.10.2004 PASSED IN
O.S.NO.265/2002 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE
(JR.DN.), HUBBALLI,
IN RSA NO.2697/2006
1. SRI SHAILESH S/O VITHALBHAI PATEL
AGE ABOUT 39 YEARS, OCC: BUSINESS
R/AT DESHPANDE NAGAR,
HUBBALLI-580029.
-3-
NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
2. SMT. SONAL W/O SHAILESH PATEL
AGED ABOUT 36 YEARS,
OCC: BUSINESS,
R/AT DESHPANDE NAGAR,
NEELIGIN ROAD, HUBBALLI.
...APPELLANTS
(BY SRIYUTHS M.R.MULLA, P.C.SAJJANAR AND
VISHWANATH S. BICHAGATTI, ADVOCATES)
AND:
1. SRI JEETENDRA DAYALJI MAJETHIA
AGE: 52 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI.
2. SMT. RAMILA W/O JEETENDRA MAJETHIA,
AGE: 50 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI-580029, DIST: DHARWAD.
...RESPONDENTS
(BY SRI PRAKASH K. JAWALKAR AND
SRI S.B.PATIL, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 17.07.2006 PASSED IN
R.A.NO.163/2004 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE
(SR.DN.), HUBBALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.10.2004 PASSED IN
O.S.NO.253/2002 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE
(JR.DN.), HUBBALLI,
IN RSA NO.2698/2006
1. SRI SHAILESH S/O VITHALBHAI PATEL
AGE ABOUT 39 YEARS, OCC: BUSINESS
R/AT DESHPANDE NAGAR,
HUBBALLI-580029.
2. SMT. SONAL W/O SHAILESH PATEL
AGED ABOUT 36 YEARS,
OCC: BUSINESS,
-4-
NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
R/AT DESHPANDE NAGAR,
NEELIGIN ROAD,
HUBBALLI-580029.
...APPELLANTS
(BY SRIYUTHS M.R.MULLA, P.C.SAJJANAR AND
VISHWANATH S. BICHAGATTI, ADVOCATES)
AND:
1. SRI JEETENDRA DAYALJI MAJETHIA
AGE: 52 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI-580029.
2. SMT. RAMILA W/O JEETENDRA MAJETHIA,
AGE: 50 YEARS, OCC: BUSINESS,
R/AT KRISHNANAGAR, DESHPANDE NAGAR,
HUBBALLI-580029.
...RESPONDENTS
(BY SRI PRAKASH K. JAWALKAR, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 17.07.2006 PASSED IN
R.A.NO.162/2004 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE
(SR.DN.), HUBBALLI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.10.2004 PASSED IN
O.S.NO.253/2002 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE
(JR.DN.), HUBBALLI.
THESE APPEALS, COMING ON FOR FURTHER SUBMISSIONS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
-5-
NC: 2024:KHC-D:9064
RSA No. 2695 of 2006
C/W RSA No. 2697 of 2006, RSA No. 2698 of
2006
JUDGMENT
RSA No.2695/2006 is filed by the plaintiffs challenging
the judgment and decree dated 17.7.2006, passed in R.A
No.165/2004 by the II Additional Civil Judge (Sr.Dn),
Hubli1 and the judgment and decree dated 30.10.2004
passed in O.S No.265/2002 and O.S No....on the file of the
I Additional Civil Judge (Jr.Dn), Hubli2, wherein the Trial
Court allowed the counter claim made in the said suit.
2. RSA No.2697/2006 is filed by the plaintiffs
challenging the judgment and decree dated 17.7.2006
passed in R.A No.163/2004 by the First Appellate Court,
and the judgment and decree dated 30.10.2004 passed in
OS.No.253/2002 by the Trial Court allowing the counter
claim made in the said suit.
3. RSA No.2698/2006 is filed by the plaintiffs
challenging the judgment and decree dated 17.7.2006
passed in R.A No.162/2004 by the First Appellate Court,
and the judgment and decree dated 30.10.2004 passed in
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
O.S No.253/2002 by the Trial Court, wherein the suit of
the plaintiffs was dismissed.
4. It is submitted that RSA No.2696/2006 filed
challenging the judgment and decree passed in R.A
No.164/2004 which was filed challenging the dismissal of
the suit in O.S No.265/2002, has been dismissed for non-
prosecution by this Court vide order dated 27.09.2012.
5. The parties will be referred to as per their
ranking before the Trial Court, for the sake of
convenience.
6. The relevant facts leading to the present second
appeals are that one Sri.Shailesh Vithalbai Patel and his
wife Smt.Sonal Shailesh Patel3 filed a suit in O.S
No.253/2002 against one Sri.Jeetendra Dayalji Majethia
and his wife Smt.Ramila Jeetendra Majethia4 for
declaration that Patel is entitled to easementary rights by
necessity to pass, use, enjoy and utilize the suit property
Hereinafter collectively referred to as 'Patel'
Hereinafter collectively referred to as 'Majethia'
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
for ingress and egress and for consequential relief of
injunction to restrain the defendants from interfering with
the right of the plaintiffs. The suit property as described in
Paragraph-2 of the said plaint as a 14 feet wide passage in
CTS No.161/A/10 of CTS Ward No.III situated at Neeligin
road, Hubli.
7. The plaintiff in O.S No.265/2002 namely
Smt.Susheela Bhawarlalji Bhandari and her son Sri.Rajesh
Bhawarlalji Bhandari5 filed a suit against Majethia for a
declaration that the plaintiffs have got the permanent
easementary rights by way of necessity over the 14 feet
wide passage of CTS No.161/A/10 in CTS Ward No.III of
Neeligin road, Hubli and for the consequential relief of
injunction to restrain the defendants from interfering with
the same.
8. It is the case of the plaintiffs in both the suits
that they have purchased permanent lease hold rights of
immovable property bearing CTS Nos.161/A/1 and
Hereinafter collectively referred to as 'Bandari'
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
161/A/2 respectively. That the property of the defendants
in CTS No.161/A/10 is situated on the western side of the
property purchased by them. The suits are filed claiming
easementary rights over the 14 feet wide passage situated
in the property of the defendants on the eastern side
abutting the property of the plaintiffs. Hence, the plaintiffs
sought for the relief of declaration as noticed above.
9. The defendants entered appearance in the suits
and contested the case of the plaintiffs. It is specifically
contended that the defendants purchased their property
bearing CTS No.161/A/10 vide Sale Deed executed on
22.03.1995 which was registered on 27.03.1995 and that
the lease deed in favour of the plaintiffs had been
executed on 27.03.1995 subsequent to execution of the
sale deed in favour of the defendants. That the defendants
having acquired full ownership over their property vide the
said sale deed, no rights whatsoever in the said property
could be conveyed in any manner whatsoever in favour of
the plaintiffs vide the lease deeds dated 27.03.1995
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
including any right of easement. It is the further
contention of the defendants that they have put up
construction by leaving adequate set back area and that
the plaintiffs are interfering with the possession of the
defendants and hence they made a counter claim for
injunction to restrain the plaintiffs from interfering with
the peaceful possession of their property. Both the suits
were clubbed together and the common evidence was
recorded.
10. Consequent to the pleadings of the parties, the
Trial Court framed the following issues:
"1. Whether plaintiffs prove that, they have right to
pass, use, enjoy and utilise the suit property for
ingress and engress by way of right of easement by
grant and necessity?
2. Whether plaintiffs prove that, the defendants are
trying to construct compound wall and installation
of generation sets, etc., thereby causing
obstruction to plaintiffs in the peaceful use, wahivat
and enjoyment of suit property?
- 10 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
3. Whether plaintiffs prove that, the defendants are
illegally trying to change the nature and character
and status of suit property?
4. Whether description of suit property is proper
and correct?
5. Whether plaintiffs prove that, the suit property is
the only way for ingress and egress to reach the
godown of the plaintiffs?
6. Whether defendants prove that, they are in
peaceful possession and enjoyment of suit property
having right to put compound wall and to fix
generations, etc.,?
7. Whether defendants prove that, the plaintiffs are
interfering and causing obstruction illegally to the
peaceful possession and enjoyment of suit property
by the defendants and in the work of construction
of compound wall and fixing generator, etc., in suit
property by the defendants?
8. Whether the defendants prove the description of
counter claim property is proper and correct?
9. Whether plaintiffs are entitled for the relief
sought for?
10. Whether defendants prove that, the suit is
barred by limitation?
- 11 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
11. What order or decree?"
11. Evidence was adduced by both the parties. The
Trial Court by its judgment and decree dated 30.10.2004
dismissed the suits and the counter claims of the
defendants were allowed and passed the following order:
"The suit filed by plaintiff for declaration and
consequential relief of injunction against the
defendants hereby dismissed.
The counter claim filed by defendants is
hereby allowed. The plaintiffs are hereby directed
by way of permanent injunction not to interfere and
obstruct with defendants' peaceful possession and
enjoyment over suit property.
Considering the circumstances, no order as to
costs.
Draw decree accordingly.
The copy of this judgment is kept in
O.S.No.265/2002."
12. Being aggrieved, the plaintiffs in both the suits
preferred R.A.Nos.162/2004, 163/2004, 164/2004 and
- 12 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
165/2004. The defendants who were the respondents in
the said appeals entered appearance before the First
Appellate Court and contested the same. All the four
appeals were considered together. The First Appellate
Court framed the following points for consideration:
"1. Whether the Trial Court's judgment and decree
is not based on proper pleadings and evidence,
needs to be interfered by this court?
2. What order?
13. The First Appellate Court by its judgment and
decree dated 17.07.2006 dismissed the appeals and
confirmed the judgment and decree passed by the Trial
Court. Being aggrieved, the plaintiffs in the suits have filed
the present second appeals.
14. This Court vide order dated 04.07.2013
admitted RSA No.2695/2006 and framed the following
substantial questions of law:
- 13 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
"i. Whether the findings of the Courts below that
the plaintiffs have not established the easement of
necessity is supported by material on record?
ii. Whether the defendants were entitled to a
decree of permanent injunction in respect of the
property which is claimed by the plaintiff as
easement of necessity?"
15. RSA No.2696/2006 has been dismissed for non-
prosecution by this Court. The substantial question of law
framed in RSA No.2695/2006 has also been considered as
substantial question of law to be considered in RSA
No.2697/2006 and RSA No.2698/2006.
16. It is the contention of the learned counsel for
the appellants/plaintiffs that the Trial Court and the First
Appellate Court erred in recording a finding that the
alternative access to the property is as beneficial as the
easementary right claimed by the plaintiffs. He further
submits that the easementary right claimed by the
plaintiffs has also been shown in the Sale Deeds under
which the defendants purchased the property. Hence, he
- 14 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
seeks for allowing of the above appeals and granting of
the reliefs sought for.
17. Per contra, learned counsel for the respondents
contends that both the Courts have recorded concurrent
findings of fact that the easementary right that is claimed
by the plaintiffs is in respect of the setback area of the
property of the defendants. It is further contended that
both the Courts having recorded a finding that there exists
an access to the plaintiffs from Deshapande Nagar
conservancy lane which is a proper road and that the said
concurrent findings recorded by both the Courts ought not
to be interfered with. He further contends that the
substantial questions of law framed vide order dated
04.07.2013 by this Court are not the substantial questions
of law and they are questions of fact in respect of which
concurrent findings have been recorded and hence the
appeals are liable to be dismissed.
18. The submissions of the learned counsel for the
appellants and learned counsel for the respondents have
- 15 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
been considered and the material on record including the
records of the Trial Court and First Appellate Court have
been perused.
19. It is forthcoming that the Trial Court while
considering the suit of the plaintiffs and answering the
issues framed for consideration, has recorded a finding
that in the sale deed executed in favour of the defendants,
the plaintiffs' vendor have not reserved any right of way of
14 feet suit passage. The Trial Court has further noticed
that the Lease Deeds on the basis of which the plaintiffs
had acquired permanent leasehold rights over the property
(Exs.P.1 and P.3) have shown an access to the said leased
properties through a conversancy lane which is 12 feet in
width and hence the Trial Court has recorded a finding
that the plaintiffs have no access over the suit property
which exclusively belongs to the defendants.
20. The Trial Court has further recorded a finding
that the defendants have kept open the suit passage as
setback as per the building regulations which is
- 16 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
forthcoming from the copy of the blueprint (Ex.D.3). The
Trial Court has also noticed that PW.1 in O.S.No.253/2002
has admitted that he along with plaintiffs in
O.S.No.265/2002 utilized the right on eastern side as well
as the road on the western side. The Trial Court has also
noticed that the plaintiffs having been interfering with the
possession of the defendants who were entitled to put up
the compound wall, has recorded a finding that the
plaintiffs in the guise of claiming easementary right are
interfering with the peaceful possession and enjoyment of
the defendants property.
21. The First Appellate Court while considering the
appeal filed by the plaintiffs, upon an adequate
reappreciation of the oral and documentary evidence on
record, noticed that the plaintiffs have failed to prove that
the declaration in respect of the suit property as an
easement of necessity has not been demonstrated since
the plaintiffs have independent access to their property. It
has been further noticed that 14 feet wide passage is a
- 17 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
setback area of the defendants' property, on its eastern
side and is located abutting the western boundary of the
plaintiff. The First Appellate Court has also in detail
examined the Sale Deeds (Exs.D.5 and D.6) under which
the defendants purchased the property as well as the
Lease Deeds (Exs.P.2 and P.3) under which the plaintiffs
purchased the property and held that no easementary
right is available to the plaintiffs through the defendants
property and the only means for ingress and egress for the
plaintiffs was through the conservancy lane which is 12
feet wide, which is located abutting the eastern boundary
of the property of the plaintiffs.
22. It is clear and forthcoming from the
aforementioned that concurrent findings of fact have been
recorded that the only means of ingress and egress for the
plaintiffs to their property is through the conservancy lane
which is 12 feet in width and located on the eastern
boundary of the plaintiffs property. It is further clear and
forthcoming that the suit property in respect of which the
- 18 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
easementary right is sought to be claimed by the plaintiffs
is the setback area left by the defendants on the eastern
portion side of their property which is abutting the western
boundary of the plaintiffs property.
23. It is clear and forthcoming from the sketch
(Ex.D.4) that the western boundary of the plaintiffs'
property is the property of the defendants, wherein the
defendants have constructed a building after leaving a
setback of 14 feet.
24. It is clear from the aforementioned that the
only access to the plaintiffs is through the Deshapande
Nagar conservancy lane situated on the eastern side of its
property. In view of what is noticed above, the substantial
question of law Nos.(i) and (ii) are answered in the
affirmative.
25. Hence, the following:
ORDER
i. The above appeals are dismissed;
- 19 -
NC: 2024:KHC-D:9064
C/W RSA No. 2697 of 2006, RSA No. 2698 of
ii. The judgment and decree dated 17.07.2006
passed in R.A.No.162/2004, R.A.No.163/2004
and R.A.No.165/2004 by the II Additional
Senior Civil Judge, Hubballi is confirmed;
iii. The judgment and decree dated 30.10.2004
passed in O.S.No.253/2002 and
O.S.No.265/2002 by the I Additional Civil
Judge, Hubballi is confirmed.
Sd/-
JUDGE
PMP upto para 9
Sh, CT:GSM
