Karnataka High Court
Mr Albert Rodrigues vs Mr Valerian Rodrigues on 1 March, 2024
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RSA No. 279 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.279 OF 2013 (DEC/INJ)
BETWEEN:
1. MR. ALBERT RODRIGUES,
S/O P.F. RODRIGUES,
AGED ABOUT 43 YEARS,
2. MR. GETRUE RODRIGUES,
SINCE DEAD BY LRS,
2(A). JOHN RODRIGUES,
S/O P.F. RODRIGUES,
AGED ABOUT 47 YEARS,
R/AT: 2-6-1395, DR. C. MATHIAS ROAD,
R/A DR. C. MATHIAS ROAD,
BEJAI, MANGALORE - 575 004
...APPELLANTS
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)
Digitally signed AND:
by R DEEPA
Location: HIGH 1. MR. VALERIAN RODRIGUES,
COURT OF SINCE DEAD BY LRS,
KARNATAKA
1(A) STELLA RODRIGUES,
W/O LATE VALERIAN RODRIGUES,
AGED ABOUT 74 YEARS,
RESIDING AT KAWDOOR HOUSE,
KINNIKOMBALA POST, MANGALURU - 574 151.
1(B). GRETTA FERNANDIES,
D/O LATE VALERIAN RODRIGUES,
AGED ABOUT 51 YEARS,
RESIDING AT ODDUR HOUSE, SHIBIRIKERE POST,
-2-
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RSA No. 279 of 2013
THENKA, YEDAPADAV RURAL,
MANGALURU TALUK, D.K.- 574 164.
1(C). LEENA REBELLO,
D/O LATE VALERIAN RODRIGUES,
AGED ABOUT 49 YEARS,
RESIDING AT MERLA PADAVU HOUSE,
VOLACHIL POST,
MANGALURU TALUK, D.K.- 574 143.
1(D). IVAN RODRIGUES,
S/O LATE VALERIAN RODRIGUES,
AGED ABOUT 47 YEARS,
R/AT KAWDOOR HOUSE,
KINNIKOMBALA POST, MANGALURU - 574 151.
1(E). RICHARD RODRIGUES,
S/O LATE VALERIAN RODRIGUES,
AGED ABOUT 45 YEARS,
RESIDING AT "VELANKANNI VILLA",
BHAJANA MANDIRA ROAD, PEDAMALE POST,
MANGALURU D.K. - 575 029.
2. THE SECRETARY,
PADUPERAR GRAMA PANCHAYATH,
PADUPERAR, MANGALORE - 570 001.
...RESPONDENTS
(BY MR. SANATH KUMAR SHETTY K, ADVOCATE FOR R1(A-E);
R2 - SERVED)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DATED 3.11.2012 PASSED IN
R.A.NO.179/2000 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE & JMFC., MANGALORE, D.K, PARTLY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DATED 4.9.2000 PASSED IN OS.NO.530/1996 ON THE FILE OF
THE V ADDL. CIVIL JUDGE (JR.DN) MANGALORE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 279 of 2013
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 03.11.2012
passed in R.A.No.179/2000 by the III Addl. Senior Civil
Judge, Managlore, D.K., confirming the judgment and
decree dated 04.09.2000 passed in O.S.No.530/1996 by
the V Addl. Civil Judge(Jr.Dn) Managalore.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellants are the defendants and respondent No.1 is the
plaintiff, respondent No.2 is the defendant No.3.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiff filed suit for declaration of relief of Easement
right by prescription and for permanent injunction. It is
case of the plaintiff that item No.1 of the suit schedule
property originally belonged to the father of plaintiff and
the said land was granted to him under the Dharkasth
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rules and he was put in possession and he was enjoying
the suit schedule property during his life time and on his
death the said property was devolved upon the plaintiff
and his brothers. The plaintiff is co-owner, he is in
possession of suit item No.1 of suit schedule property.
The plaintiff was the agricultural tenant in respect of item
No.2 of the suit schedule property under the grandfather
of the defendants. Plaintiff filed a declaration in form No.7
after coming into force of the Karnataka Land Reforms
Amendment Act and after enquiry, the Land Tribunal of
Mangalore granted occupancy right in favour of the
plaintiff in respect of item No.2 of the suit schedule
property. The plaintiff has been cultivating the suit
schedule properties and also growing vegetables in the
suit schedule properties. The plaintiff submits that the
main public road that is the road from Kaikamba to Bajpe
is situated at about 350 feet away from the plaint schedule
on its western side and it is running from South to North
direction near the schedule property and the same is also
running from Kolambe village. To reach the said public
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road, there has been road of about 20 feet link width
roadway which is firstly running from South to North
direction near the public road on the road margin
thereafter, running in Sy. Nos.186/3A, 186/1B in Kolambe
village joins the Sy. No.203/6 of Muduperar village and
thereafter, it takes turn towards East and runs in East to
West direction and it is shown as PPP in the annexed
sketch. The plaintiff and his predecessor has been
enjoying the said roadway to reach the property as of right
openly, peaceable, without interruption to the knowledge
of the all concerned land owners including the defendants.
The said roadway is inexistence since time immemorial.
The plaintiff has no absolutely no other alternative
roadway to reach his property except the PPP roadway.
Hence, the same is easement of necessity also. It is
contended that the defendants are owning the properties
on Southern side bearing Sy. No.203/7 and on the
Northern side bearing No.203/3 of the Sy. No.203/6. The
defendants are also using the said PPP roadway to reach
their property. The plaintiff is using the said roadway for
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cultivation and for reaching the schedule property, since
from last two months the defendants started constructing
piggery farm in Sy. No.203/3 and Sy. No.203/7 and
started constructing the piggery shed in the plaint
schedule property and denied that the plaintiff has been
cultivating the suit schedule property. The defendants
tried to close the said PPP roadway, the plaintiff requested
the defendants not to close the PPP road. The defendants
never gave any heed to the request made by the plaintiff.
Hence, cause of action arose for the plaintiff to file the
suit.
4. Defendant Nos.1 and 2 filed their written
statement and contended that the suit is false, frivolous,
vexatious and non-maintainable and denying the plaint
averments. It is further contended that there is no road as
alleged by the plaintiff in the plaint. The plaintiff has got
another alternative way to approach his land. It is
contended that the defendants are owning the properties
on the Southern side bearing SY. No.203/7 and on the
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Northern side bearing Sy.No.203/3. It is contended that
the suit is not maintainable for non joinder of necessary
parties. Hence, on these grounds prays to dismiss the
suit.
5. The trial Court, on the basis of the above said
pleadings, framed the following issues:
1) "Whether the plaintiff proves that, there exist
'PPP' 20 link width roadway as shown in plaint
sketch which branch off from Kaikamba Bajpe
Public road on western side on road margin
running from South- North, thereafter running
in S.No.186/3A, 186/1B in Kolambe Village
joins S.No.203/6 Muduperar Village and
thereafter it taken a turn towards east and
runs in east to West direction since time
immemorial?
2) Whether the plaintiff proves that, plaintiff
enjoyed about referred suit roadway as of
right and perfected their right by easement of
prescription and necessity as there was no
other alternative way?
3) Whether plaintiff proves that, defendants
illegally interfered with user of suit roadway
by the plaintiff?
4) Whether suit of the plaintiff is bad for inclusion
of Mandal Panchayath, legal heirs of late
P.A.Rodrigues as necessary party?
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5) Whether the plaintiff is entitle for reliefs of
declaration and prohibitory permanent
injunction as sought in the plaint?
6) To what reliefs plaintiff is entitled for?
7) What Order or Decree?"
6. In order to prove the case of the plaintiff, the
plaintiff examined herself as PW-1 and got examined one
witness as PW-2 and got marked 8 documents as Exs.P1
to P8. In rebuttal, defendant No.1 examined himself as
DW-1 and got marked 45 documents as Exs.D1 to D45.
The Court Commissioner was appointed and he has
submitted the report and he was examined as CW1 and
got marked one document as Ex.C1. The trial Court on
assessment of oral and documentary evidence of the
parties, answered issue Nos.1 to 3 in the negative, issue
No.4 in does not arise for consideration, issue Nos.5 and 6
in not entitled for the reliefs and issue No.7 as per the
final order. The suit of the plaintiff was dismissed.
7. The plaintiff aggrieved by the judgment and
decree passed in the O.S No.530/1996 dated 04.09.2000
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preferred appeal in R.A.No.179/2000 on the file of III
Addl. Senior Civil Judge, Managlore, D.K.
8. The appellate Court, after hearing the parties,
has framed the following points for consideration:
1) "Whether the plaintiff proves that Sy. No.203/6
is a strip of land used as road belonging
Mooduperar Village?
2) Whether the plaintiff proves that except 'PPP'
roadway shown in the plaint sketch there are
no other access to the plaint schedule
property?
3) Whether the plaintiff is entitled to claim
declaratory relief against the defendants when
the alleged PPP roadway is a strip of
Government land in Sy. No.203/6 of
Mooduperar Village?
4) Whether the plaintiff proves the alleged
interference by the defendant in obstructing
the use of roadway by the plaintiff?
5) Whether the Judgment and decree of the trial
court needs interference?
6) What order?"
9. The appellate Court, on re-assessment of oral
and documentary evidence, answered issue Nos.1, 2 and 4
in the affirmative, issue No.3 in the negative, issue No.5
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partly in the affirmative and issue No.6 as per the final
order. The appeal was partly allowed and judgment and
decree passed by the trial Court was set aside and suit of
the plaintiff was partly decreed and granted permanent
injunction restrained the defendants from interfering with
the user of PPP roadway shown in the plaint sketch by the
plaintiff.
10. The defendants aggrieved by the judgment of
the appellate Court in decreeing the suit for permanent
injunction has filed second appeal.
11. Heard the learned counsel the defendants and
plaintiff.
12. Learned counsel for the defendants submits
that the appellate Court has committed an error in
decreeing the suit for permanent injunction, when the
appellate Court has confirmed the dismissal of suit for
declaration and he also submits that when the plaintiff is
not entitled for the main relief. The appellate Court could
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not have granted consequential relief of permanent
injunction. In order to buttress his argument, he has
placed reliance on the judgment of Hon'ble Apex Court in
the case of Padhiyar Prahladji Chenaji vs Maniben
Jagmalbhai (Deceased) Through LR's and others
(Padhiyar Prahladji Chenaji) reported in (2022) 2 SCR
3465 in Civil Appeal No.1382/2022, disposed of on
03.03.2022. Hence, on these grounds submits that the
appellate Court has committed an error in decreeing the
suit of the plaintiff for permanent injunction. Hence, on
these grounds he prays to allow the appeal.
13. Learned counsel for the defendants submits
that, the plaintiff has not challenge the dismissal of suit for
relief for declaration and submits that the findings
recorded by the Courts below in regard to the relief for
declaration title is concerned, have attained finality.
14. Per contra, learned counsel for the plaintiff
submits that the impugned judgment passed by the
appellate Court is just and proper. He further submits that
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without filing cross objection the plaintiff can challenge the
dismissal of the suit and Order 41 Rule 22 of C.P.C.
Further learned counsel for the plaintiff reliance on the
judgment of the Hon'ble Apex Court in the case of
Superintending Engineer and others Vs B. Subba
Reddy (Superintending Engineer) reported in AIR 1999
SCC 1747 and judgment of this Court in the case of
Puttegowda @ Ajjegowda Vs Ramegowda
(Puttegowda @ Ajjegowda) reported in ILR 1996 KAR
465 and AIR 1999 SCC 3571. Hence, he submits that
the plaintiff even without filing a suit for declaration of
Easementary right can maintain a suit for bare injunction.
Hence, he also submits that the existence of the PPP
roadway is concerned the plaintiff has established the
existence of the said road by leading the evidence and
producing the documents and further contended that the
plaintiff has no other alternative way except the suit way.
Hence, he submits that on these grounds, he prays to
dismiss the appeal.
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15. This Court admitted the appeal to consider
following substantial questions of law:
(i) "Whether the appellate Court is justified in
granting a decree for perpetual injunction
particularly when there is no finding by first
appellate Court relating to easement of
necessity or easement by prescription?
(ii) Whether the first appellate Court is justified in
granting a decree for injunction when there is
no finding to the effect that PPP roadway is not
the freshly or forcibly laid roadway laid by the
plaintiff?"
Substantial question of law No.1:-
16. It is the case of the plaintiff that, there exists a
PPP road 20 feet link with road as shown in the plaint
sketch and the said road is the only road to approach the
property of the plaintiff and defendants are obstructing the
said road.
17. Hence, the plaintiff in order to prove the case
examined himself as PW1 and he has reiterated the plaint
averments in the examination in chief. In order to prove
the case on hand the plaintiff has marked documents
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Ex.P1 is the copy of the Land Tribunal order wherein the
said land was granted in favour of plaintiff, Ex.P2 is the
form No.10, Ex.P3 is the Krishi pass book, Ex.P4 to P7 are
the photos and Ex.P8 is the negative.
18. Further in order to establish that there exists a
suit road, plaintiff has examined one witness as PW2, who
has deposed in the same line of PW1. In order to
establish that there exists a suit road the plaintiff has not
produced any other public documents. On the contrary
defendants have confronted the photographs marked as
Exs.D1 to D5 to the PW1, during the course of the cross-
examination and PW1 admitted in the course of cross-
examination that the property of the defendants are
surrounded by compound wall and further PW2 also has
deposed that the he is a driver and he use to carry his
tempo on PPP road i.e., measure 4 to 5 times in a month
and he has deposed that the plaintiff has no other
alternative way to except the suit way. PW2 is related to
plaintiff and he is the son-in-law of the plaintiff.
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19. In rebutted, the defendant No.1 was examined
as DW1 and he has reiterated the written statement
averments in the examination in chief and got marked
documents Ex.D1 to D5 are the photographs which were
marked through PW1 as the same was confronted to PW1
during the course of the cross-examination, Ex.D6 is the
copy of order sheet passed in CP No.608/1995-96, Ex.D7
is the copy of the caveat petition filed by plaintiff against
the defendants, Ex.D8 is the copy of the vakalat, Ex.D9 to
D11 are the photographs, Ex.D12 is the RTC extract in
respect of land bearing Sy.No.186/1A3A it stands in the
name of DW1, Ex.D13 is the copy of the RTC extract in
respect of land bearing Sy.No.186/1B, it stands in the
name of defendants and other members of the family.
20. Ex.D14 is the copy of the letter addressed by
the defendants to the village accountant for issue of
certified copy of the RTC extract in respect of RS.186/3A
and village accountant has endorsed on Ex.D14 on
19.07.1999, wherein, he has endorsed that RTC extract in
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respect of land Sy.No.186-3(p), records are not available
in the office and further Ex.D15 is the copy of the
communication addressed by the defendants to the village
account to issue RTC extract in respect of land bearing
Sy.No.203/6, village accountant issued an endorsement on
the said Ex.D15, it discloses that the said RTC extract is
not available, Ex.D16 is the receipt issued by the police
authority for having received the complaint filed by the
defendanta against the plaintiff on 11.10.1996.
21. Ex.D17 is the copy of the complaint lodged by
the defendants against the plaintiff, D18 is the copy of the
complaint dated 16.10.1996, Ex.D19 is the certified copy
of the order sheet of CP No.532/1996, Ex.20 is the copy of
the caveat petition filed in CP No.532/1996 by the plaintiff
against the defendants, Ex.D21 is the copy of the vakalat
executed by plaintiff in favour of his counsel, Ex.D22 is the
certified copy of the sale deed, it discloses that the father
of the plaintiff had purchased the property, Ex.D23 to D28
are the photographs, Ex.D29 to D34 are the Negatives,
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Ex.D35 is the copy of communication addressed by
defendant No.1 to the President of Gram Panchayat,
wherein, the plaintiff witnessed to issue of licence to
construct piggery, poultry and cattle shed(farmhouse) on
11.06.1996, Ex.D36 is the copy of the construction
permission issued in favour of defendant No.1 for
constructing the building, Ex.D37 is the copy of tax on
building licence paid by the defendant on 12.06.1996,
Ex.D38 is the certificate of marriage.
22. In the course of cross-examination except
suggesting that there exists a road in the land of
defendants, nothing has been elicited from the mouth of
this witness.
23. From the perusal of the records trial Court has
recorded findings that placing reliance on the Section 4
Indian Easement Act. Though, the plaintiff has pleaded
that PPP roadway is an also easement of necessity, but the
plaintiff has not led any evidence in support of his pleading
that the said lands of plaintiff and lands of defendants
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was owned by one person and he has sold the said land in
favour of the plaintiff and defendants in order to attract
Section 13 of the Indian Easement Act, which reads as
follows:
"13. Easements of necessity and quasi
easements.- Where one person transfers or
bequeaths immovable property to another-
(a) if an easement in other immovable
property of the transferor of testator is
necessary for enjoying the subject of the
transfer or bequest, the transferee or
legatee shall be entitled to such
easement; or
(b) if such an easement is apparent and
continuous and necessary for enjoying
the said subject as it was enjoyed when
the transfer or bequest took effect, the
transferee or legatee shall, unless a
different intention is expressed or
necessarily implied, be entitled to such
easement; or
(c) if an easement in the subject of the
transfer or bequest is necessary for
enjoying other immovable property of the
transferor or testator, the transferor or
the legal representative of the testator
shall be entitled to such easement; or
(d) if such an easement is apparent and
continuous and necessary for enjoying
the said property as it was enjoyed when
the transfer or bequest took effect, the
transferor, or the legal representative of
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the testator, shall, unless a different
intention is expressed or necessarily
implied, be entitled to such easement.
Where a partition is made of the joint property
of several persons-
(e) if an easement over the share of one of
them is necessary for enjoying the share
of another of them, the latter shall be
entitled to such easement, or
(f) if such an easement is apparent and
continuous and necessary for enjoying
the share of the latter as it was enjoyed
when the partition took effect, he shall,
unless a different intention is expressed
or necessarily implied, be entitled to such
easement.
The easements mentioned in this section,
clauses (a), (c) and (e), are called easements of
necessity.
Where immovable property passes by operation
of law, the persons from and to whom it so passes
are, for the purpose of this section, to be deemed,
respectively, the transferor and transferee.
24. Section 13 of the Act contemplate that
easement which is claimed as a easement of necessity can
be claimed as the only possible mode of enjoyment of the
right claim. Easement appears have been upon as that
expressly or by necessary implication it will amount
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easement of necessity under Section 13 of the Act.
Further the plaintiff has not pleaded the said fact in order
to attract Section 13 of Act and further plaintiff also claims
right of prescription under Section 15 of the Act.
25. The Section 15 of the Indian Easement Act
reads as follows:
"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 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.
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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
fulfilment 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.
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."
26. Provided that each of the said person period of
20 years shall be taken to the period ending within 2 years
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next before the institution of the suit wherein the claim for
such a period relates is contested.
27. From the perusal of the entire plaint, the
plaintiff has nowhere pleaded that the plaintiff is using the
alleged way for more than 20 years, ending within 2 years
next before the institution of suit. The averment in the
plaint is vague insofar as ingredients of Section 15 of the
Act.
28. The trial Court considering the provisions of
Section 13, 15 and also 4 of the Act, Court has held that
the plaintiff is not entitle for relief of declaration of
Easementary right and held that the plaintiff has failed to
establish the existence of the PPP roadway and he is using
the same since time immemorial and decline to grant relief
filed by the plaintiff and dismissed the suit.
29. The appellate Court on re-appreciating the
evidence confirmed the judgment of the trial Court in
dismissing the suit for relief of declaration but however,
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granted a relief of permanent injunction restraining the
defendants from interfering with the user of PPP road
shown in the plaint sketch by the plaintiff. The main suit
is for the relief of declaration and injunction is an
consequential relief. When the appellate Court has
dismissed the suit for relief of declaration, the plaintiff is
not entitle for the consequential relief of injunction the
said view is supported by the judgment of Hon'ble Apex
Court in the case of Padhiyar Prahladji Chenaji stated
supra. Wherein, the Hon'ble Apex Court held at paragraph
No.11.1 which reads as under:
"11.1 An injunction is a consequential relief and
in a suit for declaration with a consequential relief of
injunction, it is not a suit for declaration simpliciter,
it is a suit for declaration with a further relief.
Whether the further relief claimed has, in a
particular case as consequential upon a declaration
is adequate must always depend upon the facts and
circumstances of each case. Where once a suit is
held not maintainable, no relief of injunction can be
granted. Injunction may be granted even against
the true owner of the property, only when the
person seeking the relief is in lawful possession and
enjoyment of the property and also legally entitled
to be in possession, not to disposes him, except in
due process of law."
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30. It is a suit for declaration with a further relief.
Whether the further relief claim has, in a particular case as
a consequential upon a declaration is adequate must
always depend upon the facts and circumstances of each
case. Where once a suit is held is not maintainable, no
relief of injunction can be granted even against the true
owner of the property, only when the person seeking the
relief is in law full possession and enjoyment and also
legally entitled to be in possession, not to dispossess in
except in due process of law, so admittedly in the instant
case, the trial Court dismissed the entire suit of the
plaintiff wherein the appellate Court has confirmed the
dismissal of the declaration of the suit, but however grated
a relief of injunction, which is contrary to the law laid
down by the Hon'ble Apex Court in case referred supra.
31. From the perusal of the entire evidence on
record and also record the plaintiff has not pleaded to the
effect that the PPP road is inexistence since from time
immemorial and he is using the said roadway for more
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than 20 years to attract Section 15 of the Act and though
in the paragraph No.4 of the plaint the plaintiff has
pleaded that the suit road is the public road in fact the
plaintiff has not produced any records to show that the
suit road is the public road and it is existence since from
time immemorial and further that the plaintiff has also not
produced any survey records to show the existence of PPP
roadway in the land of defendants. In view of above
discussion I answer substantial question of law No.1 in the
negative.
Substantial question of law No.2:
32. The learned counsel for the plaintiff submits
that even without challenging the dismissal of the suit for
declaration of title, the plaintiff can challenge the
judgment under Order XLI Rule 22. He has placed reliance
the judgment of Hon'ble Apex Court in the case of
Superintending Engineer stated supra, there is no
doubt about the law laid down by the Hon'ble Apex Court
even in the case the plaintiff without filing the cross
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objection attract an adverse findings upon which decree
has been passed against the plaintiff. But above
mentioned case main suit of the plaintiff for relief of
declaration of Easementary right was dismissed, further
the plaintiff has not filed any cross objection under Order
XLI Rule 22 challenge the findings but not the final result
of the suit. Judgment placed by the learned counsel for
the plaintiff is not applicable to the present case on hand.
33. Learned counsel for the plaintiff also placed
reliance on judgment of this Court in the case of
Puttegowda @ Ajjegowda stated supra, the said
judgment is not applicable to the present case on hand.
In the said suit plaintiff has filed suit for bare injunction,
wherein, Co-ordinate Bench of this Court in the said case
permitted the plaintiff to file an application for amendment
and the said suit came to be dismissed by the trial Court
and confirmed by the appellate Court and this Court
allowed the appeal and remanded the matter to the trial
Court with a liberty to the plaintiff to file a necessary
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application on the ground that necessary particulars are
not placed in view of the provisions Section 13 and 15 of
the Specific Relief Act in the instant case, the plaintiff has
filed suit for declaration of Easementary right. Hence, in
view of the same the plaintiff has already claimed the
relief of declaration of easement right. Hence, the
question of remanding the matter to the trial Court would
not arise. Hence, the said judgment is not applicable to
the present case on hand.
34. In view of the aforesaid discussion, I answer
substantial question of law No.2 in the negative. Hence, I
proceed to pass the following order:
ORDER
i. Appeal is allowed.
ii. The judgment and decree passed by the
appellate Court in RA No.179/2000 dated
03.11.2012, passed by the III Addl. Senior
Civil Judge Mangalore, D.K., is set aside.
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iii. The judgment and decree passed by the trial
Court is restored.
iv. No order as to the costs.
Sd/-
JUDGE
AT
CT: BHK
