[Cites 4, Cited by 0]
Karnataka High Court
Smt. Shambhavi vs Diocese Of Mangalore on 16 December, 2025
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RSA No. 314 of 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR SECOND APPEAL NO. 314 OF 2019 (DEC/INJ)
BETWEEN:
SMT. SHAMBHAVI
W/O LATE SESAPPA HINDU,
AGED ABOUT 78 YEARS
R/AT D NO 3-17-1519
NEAR ST JOSEPH'S HIGHER
PRIMARY SCHOOL
NANTHOOR PADAVU MANGALORE
...APPELLANT
Digitally signed
by PANKAJA S (BY SRI. Y. RAJENDRA PRASAD SHETTY, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA
AND:
DIOCESE OF MANGALORE
REPRESENTED BY BISHOP
REV DR. ALOYSIUS P D'SOUZA,
RESIDENT OF BISHOP'S HOUSE,
MANGALORE
REPRESENTED BY HIS DULY
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RSA No. 314 of 2019
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CONSTITUTED ATTORNEY REV
FR. CLIFFORD D'SOUZA,
S/O LATE LIGOURY D SOUZA,
AGED ABOUT 87 YEARS
PROCURATOR OF DIOCESE OF
MANGALORE, BISHOP'S HOUSE,
KODIALBAIL, MANGALORE - 575 003
...RESPONDENT
(BY SRI. CYRIL PRASAD PAIS, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DTD 31.10.2018 PASSED IN
RA.NO.60/2007, ON THE FILE OF THE IST ADDL.SENIOR CIVIL
JUDGE, MANGALORE D.K. DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 26.02.2007
PASSED IN OS.NO.241/1998 ON THE FILE OF I ADDL.CIVIL
JUDGE (JR. DN) MANGALORE,D.K.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 12.12.2025 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
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RSA No. 314 of 2019
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CAV JUDGMENT
1. This is defendant's second appeal.
2. The plaintiff has filed the suit for declaration that the
plaintiff has got right of 12 feet wide road way to reach
the suit schedule property from main road through the
property of the defendant comprised in Sy.No.98/18
shown as 'RRR' in the annexed plaint plan in red colour by
way of easement (for brevity, "RRR road") and also for
consequential relief of permanent prohibitory injunction
restraining the defendant from in any way blocking or
constructing or interfering with or reducing the width or in
any way obstructing the user of said road to reach the suit
schedule property from the public road.
3. According to the plaintiff, she is the absolute owner
in possession of the suit schedule property. She purchased
the same vide Sale Deed dated 04.11.1938. The schedule
property contains a school building which was constructed
by the vendor's of the plaintiff. After purchase, she
continued to run the school. The said school is known as
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'St.Joseph's Higher Primary School having classes from I
to VII standard. The suit schedule property is situated at
about 150 feet away from the main public road. The said
public road is running from south to north direction and in
between the schedule property and the public road, there
is defendant's property. To reach the schedule property
from the main road, there is RRR road way at the southern
edge of the defendant's property. Apart from the plaintiff,
all the students, staff members and the visitors of the
school have been using the RRR road without any
interruption since time immemorial.
4. Things stood thus, the defendant, obstructed the
usage of RRR road by blocking the same. On enquiry, the
plaintiff came to know the defendant highhandedly and
forcibly tried to interfere with the RRR road. As such, the
suit was filed by Catholic Board of Education which was
entrusted with the running of the school for the time being
in O.S.No.63/1995 for injunction. However, the said suit
was dismissed by the Trial Court for non-prosecution. It is
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the further case of the plaintiff that on 06.04.1998, all of a
sudden, the defendant with the help of her henchmen dug
the ground on the eastern edge of the RRR road to block
the same, however, the plaintiffs managed to protest the
same. Hence, the plaintiff filed the present suit.
5. On service of the suit summons, the defendant
appeared through her counsel and filed the written
statement by denying the plaint averments. It is stated in
the written statement that the suit is not maintainable on
the ground of res judicata since the earlier suit filed for the
similar cause of action was dismissed for non-prosecution.
6. It is also contended that since 1938 onwards, the
School was having an approach from the Nanthur Road
and there was no approach of whatsoever nature to the
said School through the property of the defendant. On
either side of the School, the properties of the Catholic
School are situated and the School has two approach
roads. In such circumstance, to grab the property of the
defendant, the present suit is filed.
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7. Upon perusal of the rival pleadings, the Trail Court
has framed the relevant issues and on assessment of oral
and documentary evidence, decreed the suit.
8. On appeal, the First Appellate Court has also affirmed
the judgment and decree passed by the Trial Court by
dismissing the appeal. Hence, the defendant is before this
Court.
9. I have heard Sri. Y. Rajendra Prasad Shetty, learned
counsel for the appellant and Sri Cyril Prasad Pais, learned
counsel for the respondent.
10. The primary contention of the learned counsel for the
appellant is that the suit is liable to be dismissed at the
threshold in view of the absence of proper description of
suit schedule property i.e. RRR road in the plaint. The Trial
Court and the First Appellate Court have grossly erred
without appreciating this aspect though there is clear
violation of Order VII Rule 3 of CPC. According to the
learned counsel, when the subject matter of the suit is
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immovable property, the plaint shall contain a description
of the property sufficient to identify by mentioning the
boundaries or numbers as per the record of settlement or
survey numbers. In the case on hand, the plaint does not
disclose any such schedule as much as defendant's
property where the subject road exists. Mere production of
a plan or sketch itself is not sufficient to comply with the
provisions under Order VII Rule 3 of CPC.
11. He further contended that when the suit is filed for
easementary right on behalf of the public at large under
Order I Rule 8 of CPC, the plaintiff shall seek permission of
the Court to sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested.
According to the counsel, there is clear admission on the
part of the plaintiff that the suit is filed on behalf of the
School and other publics for usage of the RRR road. In
such circumstance, for claiming an easement of necessity,
the plaintiff has to plead that his dominant tenement and
the defendant's servient tenement originally constituted a
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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 claim,
the dominant tenement cannot be used. According to the
learned counsel, in the instant suit, there is no such
pleading in respect of easement of necessity or easement
by grant in view of the admission of the plaintiff that there
is a road existing for the new building through the main
road.
12. He further contended that there is no issue framed in
respect of easementary right under Section 15 of the
Indian Easements Act, 1882 since the right of way claimed
to be in respect of public and right had acquired by way of
custom and not by prescription or by necessity.
Additionally, he contended that the suit is barred under
Order IX Rule 9 of CPC in view of dismissal of earlier suit
in O.S.No.63/1995. The said suit, which was filed by the
School for the relief of injunction, was dismissed for non-
prosecution and miscellaneous appeal filed against the
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same was also dismissed. In such circumstance, the
plaintiff shall be precluded from brining a fresh suit in
respect of the same cause of action. With these
submissions, he prays to allow the appeal.
13. Refuting the above submissions, learned counsel for
the respondent contended that in the instant case res
judicata does not apply for the reason that
O.S.No.63/1995 was filed by Catholic Board of Education
which was entrusted with running of the School for the
time being in the year 1995. The said suit was for
injunction and the same was dismissed for non-
prosecution and the said suit could not be considered as a
formal suit, which has been heard on merits and finally
decided by the Court of competent jurisdiction. Moreover,
the present suit filed for the relief of declaration by the
plaintiff is totally a third party suit. He also contended that
there is a categorical admission by DW.1 in her cross-
examination that the RRR road is situated on the eastern
side of her property and the same connects to the
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plaintiff's property. Further, without RRR road, there is no
access available to ingress and egress the plaintiff's
property. The said evidence is also supported by the
evidence of CW.1 - Court Commissioner and his report -
Ex.C1 and sketch - Ex.C1A.
14. He further contended that the contention of the
learned counsel for the appellant that there is no suit
schedule cannot be accepted for the reason that the
prayer in the plaint clearly depicts about the suit property
and in the schedule, it is also mentioned that the schedule
is morefully shown in yellow colour in the annexed eye
sketch. Further, the sketch clearly reveals the RRR road.
According to him, there is no necessity of mentioning the
defendant's property in the suit schedule.
15. He also contended that there is no pleading
whatsoever in the written statement in respect of Order IX
Rule 8 of CPC or in respect of Section 15 of the Indian
Easements Act, 1882 and for the first time, the defendant
is raising such a contention. It is settled principle of law
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that any such submission without pleading and
evidence does not arise for consideration.
16. He also contended that the suit is not filed on behalf
of the general public and it is specifically averred in the
plaint that for the usage of plaintiff to access the School,
there is no alternative road exists, as such, the suit has
been filed. Hence, the suit is not barred under Order I Rule
8 of CPC.
17. He also contended that PWs.2 and 3 themselves have
admitted that from several decades the RRR road exists to
access the School. In such circumstance, the Trail Court
and the First Appellate Court have rightly decreed the suit.
Accordingly, he prays to dismiss the appeal.
18. Upon hearing the learned counsel for the parties and
on perusal of the evidence and documents, the following
substantial questions of law would arise for consideration:
i. Whether the Trial Court and First
Appellate Court are justified in
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decreeing the suit without examining
the fact, whether there is an
alternative way to access the
plaintiff's School?
ii. Whether the suit is barred under
Order IX Rule 9 of CPC or barred
under the doctrine of res judicata in
view of the dismissal of earlier suit in
O.S.No.63/1995?
19. As could be gathered from records, the existence of
RRR road way from the main road on the southern side
edge of the defendant's property which connects the
plaintiff's property, though disputed by the defendant, it is
his specific contention that after obtaining of temporary
injunction, the plaintiff formed the RRR road. On careful
examination of the evidence of PW.1, he has categorically
stated that in between the public road and schedule
property, there exists a property belonging to the
defendant and also exists RRR road. According to him, the
said road way has been used by the teachers, parents and
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other visitors to the School. The evidence of PW.1
supported by the evidence of other witnesses i.e., PWs.2
to 4. Amongst these witnesses, PW.4 deposed that he was
the student of the said School and studied upto 7th
standard and the School students were making use of the
RRR road situated at the property belongs to the
defendant. Further, PW.5, the independent witness also
supported the case of the plaintiff and deposed about the
existence of the RRR road. At this juncture, it is pertinent
to mention the evidence of CW.1 - Court Commissioner
and Ex.C1 - report and Ex.C1A - sketch which clearly
depicts the existence of the RRR road and also that there
is no other way to reach the suit schedule property except
the 'RRR' road. The same further reveals that the suit
schedule property is covered by the compound wall and
the only gate is existing on western side is 'RRR' road.
Ex.C1A survey sketch also depicts the existence of 'RRR'
road. The further report of the Commissioner also reveals
that the 'RRR' road is formed on the southern edge of the
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house site of the defendant. Nevertheless, in the evidence
of DW.1, she has categorically admitted that on the
eastern side of her property, there exists the public road
and except the 'RRR' road, there is no access available to
the plaintiff's property. She also admitted that the other
road which was available to the plaintiff's property was
closed and as such, except the 'RRR' road, there exists no
other road.
20. Further, Ex.P4 - the grant order and Ex.P5 - adangal
register in respect of the property belongs to the
defendant were in existence since 1930. On careful
perusal of the same, since 1930 the existence of the RRR
road in the property of the defendant is forthcoming. As
such, the contention of the learned counsel for the
defendant that the RRR road was formed after obtaining
temporary injunction does not hold good.
21. Further, the contention of the learned counsel for the
appellant that no issues would arise in respect of
customary easement of the road to access the plaintiff's
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property also cannot be accepted for the simple reason
that the Trial Court has specifically framed issue Nos.1 to
3 in respect of existence of the RRR road and its usage
peacefully without interruption since time immemorial and
as such, the plaintiff acquired the right of prescription over
the said pathway.
22. In view of the above observations, in my considered
view, the existence of 'RRR' road on the southern side
edge of the defendant's property is proved and it is also
proved that it is the only access to connect to the
plaintiff's property. Accordingly, I answer the first
substantive question of law in favour of the plaintiff.
23. It is vehemently contended by the learned counsel
for the appellant/defendant that the suit is barred under
Order IX Rule 9 of CPC in view of dismissal of earlier suit
in O.S.No.63/1995, since the same was dismissed for non-
prosecution. As such, the decree against the plaintiff by
default bars a fresh suit. According to him, where a suit is
wholly or partly dismissed under Order I Rule 8 of CPC,
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the plaintiff shall be precluded from bringing a fresh suit in
respect of same cause of action. This contention of the
appellant cannot be accepted for two reasons. At the
outset, the defendant has not pleaded this aspect in his
written statement filed before the Trial Court or in the
evidence while cross- examining the plaintiff's witnesses.
It is settled principle of law that any such
submission without pleading and evidence does not arise
for consideration. Even otherwise, on perusal of the earlier
suit, the same is filed by the Catholic Board of Education
claiming right over the alleged pathway. As such, the
original suit in O.S.No.63/1995 was instituted on earlier
occasion by the third party against the defendant, as such,
the present suit is not barred under Order IX Rule 9 of CPC
or under Section 11 of CPC. As far as Section 11 is
concerned, since the previously instituted suit dismissed
for non-prosecution, the same cannot be considered as
"former suit" which has been heard and finally decided by
the Court of competent jurisdiction having jurisdiction to
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decide as per the definition of doctrine res judicata.
Accordingly, I answer the second substantive question of
law also in favour of the plaintiff.
24. The other contention raised by the learned counsel
for the appellant/defendant that the present suit is not
maintainable since the plaintiff failed to obtain any
permission from the Court to file suit on behalf of several
persons as contemplated under Order I Rule 8 of CPC
does not hold much water for the simple reason that the
defendant is urging the said contention for the first time
before this Court without any such pleading in the written
statement or adducing evidence or cross-examining the
witnesses to that effect. Nevertheless, the plaintiff has
categorically stated in his evidence that 'RRR' road is
primary access to the School i.e., for the plaintiff,
teachers, parents and students of the School. In such
circumstance, the plaintiff should be considered as one
entity, as such, there is no requirement for obtaining
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permission by the plaintiff as provided under Order I Rule
8 of CPC.
25. In view of the above discussion, the judgments
cited by the defendant are not apposite to the facts and
circumstances of this case. Accordingly, I find no good
grounds to interfere with the impugned judgments passed
by the Trial Court and the First Appellate Court.
Accordingly, appeal lacks merit and the same is
dismissed.
SD/-
(RAJESH RAI K)
JUDGE
PKS
List No.: 2 Sl No.: 1
