[Cites 2, Cited by 0]
Karnataka High Court
Smt. Sarojamma vs Sri. Linganna on 2 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:50245
RSA No. 411 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.411 OF 2025 (DEC/INJ)
BETWEEN:
1. SMT. SAROJAMMA,
W/O BASAVARAJU,
AGED ABOUT 63 YEARS,
R/AT KODIMOLE BASAVANAPURA VILLAGE,
KODIMOLE POST, KASABA HOBLI,
CHAMARAJANAGAR TALUK-571 313.
2. SMT. SHASHIKALA,
W/O M. SHIVASWAMY,
AGED ABOUT 58 YEARS,
R/AT DOOR NO.119,
23RD MAIN ROAD,
2ND STAGE, J.P. NAGARA,
MYSURU - 570 008.
Digitally signed
by DEVIKA M
3. SMT. PRABAMANI,
Location: HIGH W/O H.N. MAHESH,
COURT OF
KARNATAKA AGED ABOUT 58 YEARS,
R/AT DOOR NO.2837,
8TH ROSS, R.P. ROAD,
NANJANGUDU-571 301.
...APPELLANTS
(BY SRI. SOMASHEKAR KASHIMATH, ADVOCATE)
AND:
1. SRI. LINGANNA,
S/O LATE BASAVANNA,
AGED ABOUT 68 YEARS.
-2-
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RSA No. 411 of 2025
HC-KAR
2. SRI. MAHADEVAPPA,
S/O LATE. BASAVANNA,
AGED ABOUT 64 YEARS.
3. SRI. SWAMY B,
S/O LATE BASAVANNA,
AGED ABOUT 57 YEARS.
RESPONDENTS ARE
R/AT KODIMOLE BASAVANAPURA VILLAGE,
KODIMOLE POST,
CHAMARAJANAGAR TALUK-571 313.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 09.09.2024
PASSED IN R.A.NO.42/2022 ON THE FILE OF ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, CHAMARAJANAGAR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 24.11.2021 PASSED IN O.S.NO.31/2014
ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC AT
CHAMARAJANAGAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellants.
2. This second appeal is filed against the concurrent
finding.
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3. The factual matrix of the case of the plaintiffs
before the Trial Court is that they have been in possession and
enjoyment of the 'A' schedule property and there is also
easementary right over the 'B' schedule property for ingress
and egress of the 'A' schedule property. It is also contended
that the same is prevented by the defendants. The defendants
filed the written statement contending that the claim made by
the plaintiffs is false and that they are not entitled for any relief
of easementary right. It is also contended that the plaintiffs
themselves have put up the construction by encroaching and
closing the toilet, which is used by the plaintiffs and
themselves. With the bad intention, the plaintiffs encroached
their property to give trouble to them mentioning wrong
boundary in the present suit.
4. The Trial Court having considered both oral and
documentary evidence placed on record, framed the issues and
allowed the parties to lead evidence. The Trial Court taken
note of the evidence of D.W.1 in paragraph No.25, wherein
D.W.1 in the cross-examination categorically admitted that
when the plaintiffs had tried to remove the cactus found on the
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'A' schedule passage, the defendants have interfered. When the
admitted document itself establish the fact that there exists a
passage on the western side of 'C' schedule property within 'B'
schedule property for the enjoyment of the parties to that
document, the plaintiffs being the beneficiaries under that
document are not accepted to denied the same. Having taken
note of all these materials, the Trial Court comes to the
conclusion that the defendants are interfering with the
easementary right, which is provided to the plaintiffs and the
same is admitted by D.W.1 and decreed the suit.
5. Being aggrieved by the said judgment and decree of
the Trial Court, an appeal is filed before the First Appellate
Court. The First Appellate Court taken note of the admission on
the part of D.W.1 in paragraph No.14, that the admissions of
D.W.1 clearly noticed that there is a pathway on the southern
portion of 'B' schedule property morefully described in the
plaint 'A' schedule property. When there is existence of plaint
'A' schedule passage, there is no alternative access to reach the
site properties of the plaintiffs as described in the plaint 'C'
schedule property. The First Appellate Court also re-assessed
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both oral and documentary evidence available on record and
even extracted the admission of D.W.1 and also taken note of
the document of Ex.D.1. It is observed that on perusal of
Ex.D.1 i.e., registered sale dated 11.11.2009, it is noticed that
defendant No.1 had purchased a vacant site bearing junger
No.32 measuring east to west 42 feet and north to south 24
feet situated at Basavanapura Village from one Manjunatha
Swamy S/o late Chennappa. As per Section 13(A) of the
Easement Act, the person who has got the property by transfer
or bequeath from someone and to enjoy that easement in other
property of transferor or testator is necessary, then the
transferee will be entitled to such easement. The said section
provides the easement rights on the other immovable property
of the transferor should be by way of necessity. Necessity
means absolute necessity and not as a matter of mere
convenience. D.W.1 categorically admitted that when the
plaintiffs tried to remove the fence, the defendants obstructed
to do such act and the same is observed in paragraph No.16.
6. When such finding is given by the Trial Court as
well as the First Appellate Court considering the document of
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Ex.D.1 and also the admission on the part of D.W.1 and when
the obstruction is caused to ingress and egress the property of
the plaint 'A' schedule property, I do not find any perversity in
the finding of the Trial Court and the First Appellate Court in
appreciating both oral and documentary evidence. The very
admission on the part of D.W.1 takes away the defence, which
she raised in the written statement. Both factual aspects and
question of law was taken note of by both the Courts and
hence, I do not find any ground to admit the appeal and frame
any substantial question of law.
7. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
List No.: 1 Sl No.: 41
