Karnataka High Court
Sulemansab Abdul Raheman Sab Kanake vs The Chief Officer, Town Municipal on 2 September, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RSA No. 5617 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 5617 OF 2011
BETWEEN:
SULEMANSAB ABDUL RAHEMAN SAB
KANAKE, AGE: 58 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O DESAIBANA, LAXMESHWAR,
TQ: SHIRAHATTI-582116.
...APPELLANT
(BY SRI SADIQ N. GOODWALA, ADVOCATE)
AND:
1. THE CHIEF OFFICER,
Digitally signed TOWN MUNICIPAL COUNCIL,
by BHARATHI LAXMESHWAR-582116.
HM
Location:
HIGH COURT 2. THE PRESIDENT,
OF TOWN MUNICIPAL COUNCIL,
KARNATAKA LAXMESHWAR-582116.
DHARWAD
BENCH
DHARWAD 3. IBRAHIMSAB HUSSAIN SAB SHIDDI
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O LAXMESHWAR,
TQ. SHIRAHATTI-582116.
4. DUDDUSAB KHADARSAB KANAVI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O LAXMESHWAR,
TQ: SHIRAHATTI-582116.
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RSA No. 5617 of 2011
5. MAHABOOBSAB ABDULRAHEMANSAB
URF NAVARSAB KANAKE,
AGE: 66 YEARS, OCC: NIL,
R/O LAXMESHWAR,
TQ: SHIRAHATTI-582116.
6. HUSSAINSAB MAHAMMAD HUSSAIN
SHIDDI, AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O LAXMESHWAR,
TQ: SHIRAHATTI-582116.
7. GOUSESAB KARIMSAB MUNDAS
AGE: 70 YEARS, OCC: BUSINESS,
R/O LAXMESHWAR,
TQ: SHIRAHATTI-582116.
...RESPONDENTS
(BY SRI G.N.NARASAMMANAVAR, ADVOCATE FOR R1;
SRI A.B.PATIL, ADVOCATE TOF R4;
SRI V.R.PATIL, ADVOCATE FOR R3 TO R7;
R2 SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 25.05.2011 PASSED BY
ADDITIONAL SENIOR CIVIL JUDGE, GADAG, SITTING AT
LAXMESHWAR IN R.A.NO.90/2009 BY REVERSING THE JUDGMENT
AND DECREE DATED 30.10.2009 PASSED BY CIVIL JUDGE (JR.DN.)
AND JMFC, LAXMESHWAR IN O.S.NO.109/2006 BY ALLOWING THE
APPEAL.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5617 of 2011
ORAL JUDGMENT
1. The plaintiff has filed the second appeal
challenging the judgment and decree passed in
R.A.No.90/2009 dated 24.05.2011 on the file of the
Addl.Senior Civil Judge, Gadag (hereinafter referred to as
'the first appellate Court'), which reversed the judgment
and decree passed in O.S.No.109/2006 dated 30.10.2009
on the file of the Civil Judge (Jr.Dn.) and JMFC,
Laxmeshwar (hereinafter referred to as 'the trial Court').
2. For the purpose of convenience, ranking of the
parties is referred to as per their status before the trial
Court.
3. It is the case of the plaintiff that the plaintiff
has filed suit for declaration to declare that he is the
absolute owner of 'ABCD' wall of southern side of CTS
No.1978 mentioned in the hand sketch map annexed to
the plaint and further sought relief to declare that he has
acquired prescriptive easementary right of way and air and
light shown to the southern side of the door shown as 'E'
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by way of ingress and egress and window shown as 'FG' in
the 'ABCD' wall and consequent relief of injunction
restraining the defendants and their agents from
demolishing 'ABCD' wall and door and window.
4. The plaintiff is absolute owner of the suit
property bearing CTS No.1978 which is measuring 1 feet 6
inches width and 36 feet 5 inches length situated near the
limits of Laxmeshwar municipality and that the plaintiff is
doing vegetable business in the said CTS No.1978. One
Gangadhar and Kuberappa Mahantshettar were the
previous owners of CTS No.1978 of Laxmeshwar. The
plaintiff has purchased the said CTS No.1978 on
18.02.1999 from the previous owner Kuberappa
Mahantshettar under a registered sale deed. The previous
owner and the plaintiff have been using the space adjacent
to the southern side 'ABCD' wall and has got easementary
right by way of prescription and therefore using way
through door and window, is for air and light. It is stated
that right of easement by way of prescription is for more
than 35 years. Defendant Nos.1 and 2 are the Town
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Municipality, Laxmeshwar and having its property bearing
CTS Nos. 1997, 1996 and southern side of CTS No.1998.
The plaintiff came to known that defendant Nos.1 and 2
are demolishing CTS No.1998 and other old buildings and
in its place intent to construct a new complex and in such
an event 'ABCD' wall in CTS No.1978 will also be
collapsed. Therefore, filed suit for declaration and for
easementary right.
5. Defendant Nos.1 and 2 have filed written
statement and denied that the plaintiff or his vendors are
having right of way, air and light in the 'ABCD' wall.
Further, defendant Nos.1 and 2 denied that they were
demolishing CTS No.1998 and also demolishing CTS
No.1978, but has contended that the plaintiff did not have
easementary right of construction through 'ABCD' wall and
'FG' window to use as way and utilise the window for air
and light. Therefore, prays to dismiss the suit.
6. Defendant Nos.3 to 7 have been impleaded
themselves by filing application for impleadment and filed
written statement denying contents in the plaint. It is
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stated that the wall in the property bearing CTS No.1998
is in existence for more than 70-80 years and on the
property bearing CTS No.1978, there was no door or
window therefore, plaintiff is not entitled to seek
easementary right as prayed for. Therefore, prays to
dismiss the suit.
7. The trial Court has famed the following issues:
i. Whether the plaintiff proves that he is the
absolute owner of the wall which is situate on
the southern side of CTS No.1978 and which is
shown in the plaint sketch with the letters ಅ ಬ
ಕ ಡ?
ii. Whether the plaintiff proves that he acquired
prescriptive right of easement to receive air
and light through the door which is fixed in ಅ ಬ
ಕ ಡ Wall which is shown in the plaint sketch
with the letter E and through the windows
which are fixed in ಅ ಬ ಕ ಡ Wall which is shown
in the plaint sketch with the letter F G and
further proves that the acquired prescriptive
right of easement to pass through the said door
which is shown in the plaint sketch with the
letter E?
iii. Whether the plaintiff proves that the
defendants are making an illegal attempt to
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remove ಅ ಬ ಕ ಡ wall and to remove the door
and windows as contended in the plaint?
iv. Whether the plaintiff is entitle for the relief of
declaration as prayed in the suit?
v. Whether the plaintiff is entitle for the
permanent injunction as prayed in the suit?
vi. Whether the plaintiff is entitled for suit claim?
vii. What Order or decree?
8. After appreciating the evidence on record, the
trial Court has decreed the suit and declared that the
plaintiff is the owner of the wall bearing CTS No.1978 and
further declared that the plaintiff has acquired prescriptive
right of easement passed through the door marked by
letter 'E' and letters 'FG' to receive air and light of the said
'ABCD' wall. The trial Court assigned the reason that the
plaintiff has purchased 'ABCD' wall as per Ex.P8-sale deed
and the door and window are in existence for more than
35 years, hence, decreed the suit as prayed for.
9. Defendant Nos.1 and 2-Municipality has not
filed appeal but defendant Nos.3 to 7 have filed appeal
before the first appellate Court and the first appellate
Court has reversed the judgment and decree passed by
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the trial Court and dismissed the suit. The first appellate
Court has assigned reasons that Kuberappa Mahanshettar
was not the owner of CTS No.1998, therefore, he could
not alienate CTS No.1998 or any building situated
thereupon of the plaintiff.
10. Further the first appellate Court has assigned
the reason that plaintiff has not pleaded ingredient under
Section 15 of the Easement Act, 1882. Therefore, the
plaintiff has not proved ingredients, hence, not entitled
right of easement as claimed by the plaintiff. Therefore
with this reason, allowed the appeal and set aside the
judgment and decree passed by the trial Court.
11. This Court while admitting the appeal on
20.09.2011, has framed the following substantial question
of law:
"Whether the appellant/plaintiff has established
that he is the owner and in possession of property
bearing CTS No.1978, which is shown in the plaint
sketch as 'ABCD', in terms of Ex.P.8, which is a
registered sale deed?"
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12. The first appellate Court has assigned the
reason that Kuberappa Mahantshettar was not the owner
of property bearing CTS No.1998. It is not the case of the
plaintiff that Kuberappa Mahantshettar was the owner of
CTS No.1998. It is the case of the plaintiff that Kuberappa
Mahantshettar is the owner of CTS No.1978 but the first
appellate Court has misconstrued itself holding that
Kuberappa Mahantshettar is owner of CTS No.1998 and
has sold it to the plaintiff.
13. What is the case of the plaintiff is that the
plaintiff is owner of wall bearing CTS No.1978. The plaintiff
himself admitted that the wall situated in CTS No.1998
belongs to the Municipality. What the plaintiff is claiming is
that there is door and window in the wall CTS No.1978.
Ex.P8 is the registered sale deed which proves that the
plaintiff is owner of the property including wall situated at
CTS No.1978.
14. It is the case of the defendant that as per
Ex.P8-sale deed, there was no door or window towards the
southern side of the wall at CTS No.1978. When the
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property was purchased by the plaintiff from Kuberappa
Mahantshettar, there is no evidence placed by the
defendants to prove that when the plaintiff had purchased
the property bearing CTS No.1978 and there was no door
or window on the southern side of the wall of CTS
No.1978. Furthermore, soon after purchase of the
property, plaintiff might have opened window and door
towards southern side of the wall CTS No.1978. Therefore,
the plaintiff is being using the said door and window as in
the hand sketch map for more than 35 years as on the
date of filing of the suit without interruption with
knowledge of defendants-Municipality continuously.
Therefore, trial Court has decreed the suit in declaring the
plaintiff is owner of the wall situated at CTS No.1978 but
the first appellate Court has misunderstood that the
plaintiff is claiming the wall on CTS No.1998. This is
perverse approach of the first appellate Court.
15. Further, the plaintiff is claiming easement right
by way of prescription that for more than 35 years plaintiff
is using the door and window for ingress and egress and
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for light and air through window, and defendant Nos.1 and
2-Municipality has not challenged the judgment and
decree passed by the trial Court. In the suit, the defendant
Nos.3 to 7 have impleaded themselves and opposed the
suit of the plaintiff. It is only the case of the defendant
Nos.3 to 7 that for public interest they are opposing the
suit of the plaintiff. But what is public interest involved is
not stated by the defendant Nos.3 to 7 in their written
statement. Furthermore, it is not the case of the defendant
Nos.3 to 7 that they are very much affected if plaintiff is
given easementary right. There is no evidence by
defendant Nos.3 to 7 that they are adjacent to the CTS
Nos.1978 and 1998, hence, their right is affected.
Therefore, in what way the decree of declaring plaintiff is
entitled easement right affects the defendant Nos.3 to 7
and what is public interest involved, are not forthcoming
by the defendant Nos.3 to 7 either in the written
statement or in the evidence. The defendant Nos.3 to 7
are simply just resisting suit filed by the plaintiff without
there being any reasoning or cause of action. Whether
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defendant Nos.3 to 7 have claim or not but considering the
case of the plaintiff on his own pedestal he has proved
that the wall on CTS No.1978 belong to him as he has
purchased from his previous vendor Kuberappa
Mahantshettar as per Ex.P8. There are door and window
on the said southern side of the wall is being used by the
plaintiff for more than 35 years. Therefore, in this regard,
the trial Court is correct in granting decree as prayed for
by the plaintiff but the first appellate Court by its perverse
approach reversing the judgment and decree passed by
the trial Court is not correct and legal. Therefore, the
judgment and decree passed by the first appellate Court
requires to be set aside by confirming the judgment and
decree passed by the trial Court. Accordingly, I answer the
substantial question of law by answering that plaintiff
established that he is owner and in possession of the
property bearing CTS No.1978 as against Ex.P8 and also
entitled easement right to pass through door for ingress
and egress for air and light. Therefore, appeal filed by the
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plaintiff is liable to be allowed. Accordingly, I proceed to
pass the following:
ORDER
i. Appeal is allowed.
ii. The judgment and decree passed in
R.A.No.90/2009 dated 24.05.2011 on the file
of the Addl.Senior Civil Judge, Gadag is set
aside. The judgment and decree passed in
O.S.No.109/2006 dated 30.10.2009 on the
file of the Civil Judge (Jr.Dn.) and JMFC,
Laxmeshwar, is hereby confirmed.
iii. The application filed in I.A.No.1/2024 for
permission, is disposed off with liberty to
plaintiff/appellant to work out with defendant
Nos.1 and 3-Municipal council.
iv. No order as to costs.
v. Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
KGK / CT:GSM
