passed by I Addl. Senior Civil Judge, Chikkamagaluru, in RA
2. Brief facts are, appellant was plaintiff in OS
permanent injunction, etc.
3. In plaint, it was stated plaintiff was absolute owner
08.06.1973 and thereafter, khata issued in his name. It was
stated, except 'A' property, he has no other house. It was
East to West - 2 ft. and North to South - 123 ft. was existing
('suit property', for short). It was stated, defendant without
space towards left side of 'A' property. It was stated, without
planning rules. Therefore, plaintiff approached Town Panchayat,
Shringeri, to taking suitable action. Due to failure, OS
no.06/2004 was filed seeking for bare injunction.
4. It was stated, defendant had entered caveat,
construction towards western side of suit property. Taking note
04.05.2004 and restrained defendant from further construction.
5. However, after stopping construction for some time,
defendant continued construction. Therefore, a Court
inspection and to submit report. Said Commissioner visited spot
that defendant had not left 2 ft. space as per conditions
imposed in building licence. Defendant filed objections against
report. Plaintiff filed application for amendment seeking for
mandatory injunction. But, application was rejected by trial
Court. Thereafter, suit came to be dismissed reserving liberty
to plaintiff to file comprehensive suit.
6. It was stated, even at time of spot mahazar by
rights of air and light. Hence, licence was issued directing
defendant to leave 2 ft. setback towards 'A' property. It was
free light and air from suit property uninterruptedly. It was
wall. It was stated, construction of building by defendant in suit
light to 'A' property. Moreover, defendant dumped sand and
began construction. And if any waste material were thrown
property and cause damage. It was stated
not be compensated in any terms. Hence, suit was filed.
7. On appearance, defendant filed written statement
'A' property and suit property was situated on it's western side.
construction was put up. Even filing of joint memo in OS
application were also admitted.
8. It was contended, plaintiff could not rely on
Commissioner's report in OS no.06/2004. It was stated
measuring East to West - 34 ft. and North to South - 75 ft. and
khata no.317 measuring East to West - 34 ft. and North to
South - 50 ft. And though was aware of these facts, plaintiff
filed present suit. It was further stated, plaintiff falsely
measurement of his property was 7 meters x 8.5 meters. Only
meters x 8 meters. Therefore, plaintiff was claiming more than
above, contradicting his title documents. It was stated,
9. It was stated, plaintiff had ample opportunity to
claim relief in OS no.06/2004. Failure to avail same therein,
would bar present suit under Order II Rule 2 of CPC. And as
identical, suit was barred by res judicata. It was stated, suit
would also be barred by limitation. It was contended, plaintiff
be maintainable and sought dismissal of suit.
10. Based on pleadings, trial Court framed following
9. What order or decree?
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11. In trial, plaintiff and two others were examined as
PWs.1 to 3 and got marked Exhibits P1 to P13. In rebuttal,
official of defendant was examined as DW.1 and Exhibits D1 to
D16 got marked. Court Commissioner was examined as CW.1
and Exhibits C1 to C5 got marked.
12. On consideration, trial Court answered issues no.1
to 3 and 5 to 8 in negative, issue no.4 in affirmative and issue
no.9 by dismissing suit.
13. Aggrieved plaintiff filed RA no.108/2012 on various
grounds, based on which following points were framed:
1. Whether the plaintiff proves that the defendant
has put up construction of a building without
leaving 2 feet set back and thereby obstructed
the free flow of natural air and light to the "A"
schedule property?
2. Whether the impugned judgment and decree
passed by the trial Court warrants an interference
by this Court?
3. Whether the appellant has made out grounds to
allow the application filed under O.41 R.27 of
CPC?
4. What order or decree?
14. On consideration, first appellate Court answered
points no.1 to 3 in negative and point no.4 by dismissing
appeal. Aggrieved thereby, plaintiff filed this appeal.
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15. Sri Vigneshwar S. Shastri, learned Senior Counsel
appearing for Sri Gururaj R., advocate for plaintiff submitted
appeal was against concurrent errors in suit for declaration,
mandatory injunction and permanent injunction. Dismissal was
without appreciation of evidence leading to erroneous
conclusions. It was submitted, earlier OS no.06/2004 was filed
for bare injunction. On appearance, joint memo was filed.
Considering undertaking in Joint Memo that defendant would
not construct towards plaintiff's property, suit was closed.
However, on violation of undertaking, suit was restored.
Thereafter, on 12.11.2004, Court Commissioner was appointed,
who submitted report that there was violation. Even after
noting violation, trial Court dismissed OS no.6/2004. Even
appeal filed was also dismissed. Hence, present comprehensive
suit was filed. Defendant filed written statement denying
averments and it was specifically contended raising bar of suit
under Order II Rule 2 of CPC and sought dismissal of suit.
16. It was submitted, trial Court dismissed suit on
erroneous grounds holding that plaintiff had failed to prove title
over 'A' property and that suit was hit by Order II Rule 2 of
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CPC. It took note of Commissioner's report to come to
erroneous conclusions and dismissed suit. It was submitted, in
appeal, plaintiff had filed application for additional evidence for
producing title deeds namely, certified copies of registered sale
deed dated 18.06.1920, certified copy of sale deed dated
30.04.1922, but, without appreciation of same, perverse
conclusion was arrived and appeal dismissed.
17. It was submitted OS no.06/2004 was for bare
injunction, to restrain defendants from putting up construction
on ground that defendant had not left any set-back, in which
Court Commissioner was appointed, who in his report at Ex.C3,
stated that at point of 4th pillar and towards 3rd pillar,
foundation was inside 'A' property. Thus defendant had put up
pillars without leaving set-back, but, same was not appreciated.
Consequently, dismissal of suit was not justified.
18. It was submitted, OS no.27/2007 was filed on
different cause of action. Without appreciating said fact, both
Courts dismissed suit on ground that it was hit by Order II Rule
2 of CPC. Said finding was contrary to decision of Hon'ble
Supreme Court reported in Cudalore Powergen Corporation
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Ltd. v. Chemplast Cuddalroe Vinyls Ltd. and Anr., reported
in 2025 SCC OnLine SC 82, wherein it was held suit filed on
different cause of action would not attract bar of res-judicata.
19. Insofar as Ex.C3 - report of Court Commissioner, it
was submitted, in his report, CW-1 stated that 4th pillar and 3rd
pillar foundation of defendant was inside roof line of plaintiff's
house established construction put up was without leaving set-
back. It was submitted, as per decision of this Court in case of
Parappa and Ors. v. Bhimappa and Anr. reported in 2008
SCC OnLine Kar 66, Court Commissioner's report once
submitted to Court would form part of record and continues to
be so when it is got marked by examining very same Court
Commissioner.
20. It was submitted when defendant admitted
plaintiff's title, trial Court erred in holding that plaintiff failed to
prove his title over 'A' property. It was submitted, plaintiff was
an aged person and unless construction put up by defendant
was corrected, plaintiff would not be able to enjoy his property.
Hence, prayed for decreeing plaintiff's suit by moulding and
granting appropriate reliefs in interest of justice and equity.
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21. It was submitted, rejection of application for
additional evidence was contrary to ratio in Sri Manjunath
and Anr. vs. Smt. Hanumakka and Ors. (RSA no.1161/2009
disposed of on 18.12.2024) Smt.Ningamma v. CL
Shankaregowda and Ors. (RSA no.147/2015 disposed of on
12.12.2024). Based on above contentions, learned Senior
Counsel submitted following substantial questions of law would
arise for consideration:
1) Whether findings of both courts that OS
no.27/2007 was barred under Order II Rule 2 of
CPC was erroneous?
2) Whether report submitted by Commissioner in
earlier suit on 12.11.2004 which has been marked
as Ex.C3 in present suit proves encroachment by
defendant and required set-back has not been left
by defendant?
3) Whether both Courts were right in holding
appellant failed to prove his prescriptive right held
and enjoyed by him over 30 years as enshrined in
Section 15 of Indian Easements Act?
4) Whether first appellate Court was justified in
dismissing application under Order XLI Rule 27 of
CPC?
5) Whether both Courts were right in dismissing suit
in entirety than moulding relief appropriately in
facts and circumstances of case?
22. On other hand, Sri R Ashokan, learned counsel
appearing for Sri TP Muthanna, advocate for defendant opposed
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appeal. It was submitted, appeal was against concurrent
findings dismissing suit as barred under Order II Rule 2 of CPC.
Therefore, there was no scope for interference in second
appeal.
23. It was submitted, defendant was owner of suit
property on western side of 'A' property. It was submitted,
construction by defendant had reached upto roof level and
further construction stopped due to interim injunction.
Thereafter, trial Court rightly dismissed suit after appreciation
of material on record especially deposition of PDO of Town
Panchayat, Shringeri and Ex.C3 - report of Court Commissioner
observing that plaintiff failed to prove obstruction to free flow
of natural air and light to his property.
24. In appeal, first appellate Court observed there was
no dispute of ownership of properties and held defendant had
put up construction by leaving two feet set-back and had not
caused obstruction to free flow of natural air and light to 'A'
property. Above findings were concurrent on appreciation of
evidence. It was submitted, dismissal of earlier suit on merits
would bar present suit under Order II Rule 2 of CPC and failure
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to prove obstruction by defendant would be concurrent finding
of fact, which cannot be interfered with in second appeal.
Hence, no substantial question of law arose for consideration
and prayed for dismissal of appeal.
25. Heard learned counsel for parties and perused
impugned judgment and decree and records.
26. This appeal is by unsuccessful plaintiff in suit for
declaration of plaintiff's easement by way of prescription,
mandatory and permanent injunctions against deprivation of
right of easement of natural light and air from suit property to
'A' property, against concurrent findings.
27. Main grounds urged are that there was no dispute
that 'A' property with house belonged to plaintiff and lying on
lower level, on western side of suit property belonging to
defendant and defendant putting up construction in suit
property. Plaintiff's claim was that his house was in existence
prior to purchase and as suit property was vacant and even
plaintiff's vendor was enjoying uninterrupted free flow of
natural light and air from defendant's property, for more than
30 years giving rise to right of easement by prescription under
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Section 15 of Indian Easement Act, 1882. And same was
vindicated by defendant filing joint memo in earlier suit,
undertaking not to put-up construction on western side of 'A'
property. Subsequent construction in violation of said
undertaking led to filing of present suit. Even Ex.C3 - Court
Commissioner's report, disclosed footings of two pillars
extending within roof level of plaintiff's house would establish
failure by defendant to leave 2 ft. set-back. Therefore, finding
of failure by plaintiff to establish obstruction would be perverse.
28. And on ground that earlier suit was filed for bare
injunction when defendant had begun construction, whereas
present suit for mandatory injunction was filed after defendant
began construction in violation of undertaking would be on
different cause of action and therefore not attracting bar under
Order II Rule 2 of CPC.
29. And lastly, when title was not in dispute, finding of
trial Court about failure by plaintiff to produce title deeds and
rejection of application for additional evidence for production of
said title deeds in Appeal would indicate miscarriage of justice.
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30. While passing judgment and decree, trial Court took
note of pleadings and evidence on record. It observed plaintiff
claimed ownership of house and site with measurements and
boundaries mentioned in 'A' schedule to plaint and
documentary evidence was Court Commissioner's report and
rough sketch in earlier suit as Exs.P1 and P2 showing plaintiff's
property measuring East-West 8.5 meters but 8.20 meters at
one point. It observed description of property in Ex.P4 -
plaintiff's title deed as bearing municipal assessment
no.234/318 with 12 ankanas tile roofed house with well, was
not exact. Since, plaintiff admitted being unaware of
measurement of property in his vendor's title deed, it drew
adverse inference. It noted, Ex.P9 mahazar drawn by Chief
Officer of Town Panchayat mentioned measurement of
plaintiff's property as East-West - 8.6 meters on front side and
6 meters on backside and North-South - 48.28 meters with 3ft.
gap between Assessment nos.382/362 and 382/363.
31. It noted, material placed by defendant, included,
pleadings, issues, judgment and decree and deposition of
plaintiff in OS no.6/2004 as Exs.D1 to D5 and Ex.D12. It
observed, plaintiff making similar assertion, defendant denying
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same and suit being dismissed by giving finding about plaintiff
claiming more extent than in his title deed and therefore,
failure to establish lawful possession. While, Ex.D13 - sale deed
showed defendant purchasing two sites bearing khata nos.316
and 317 each measuring 34 feet East-West and 125 feet North-
South. Based on above observation, trial Court concluded
plaintiff had failed to prove measurement of 'A' property as
authentic and dismissed suit.
32. While passing impugned judgment and decree, first
appellate Court observed burden would be on plaintiff to
establish he was absolute owner of 'A' property under sale deed
dated 08.06.1983 and establishing construction by defendant
was without leaving 2ft. set-back was obstructing free flow of
natural air and light through his property.
33. Taking note of admission of title, it held dispute was
confined to establishing failure to leave 2ft. set-back and
consequential obstruction to free flow of natural air and light.
While noting plaintiff's objection against accepting Court
Commissioner's report in OS no.06/2004, it noted plaintiff had
filed application for appointment of Court Commissioner in
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present suit, which was allowed and PWD Engineer - Court
Commissioner had visited spot and measured properties,
submitted report and deposed as CW.1. It noted, CW.1 had
observed there was no encroachment over properties, building
wall of plaintiff towards defendant's property was not in straight
line and its roof projected towards defendant's property. It
noted that CW.1 specifically stated about defendant leaving
space varying from 1.09 meters to 0.33 meters, from 0.33
meters to 0.57 meters and from 0.57 meters to 0.87 meters. It
noted minimum space was 1.5ft., at only one point. Based on
which it held there was no much obstruction for free flow of air
and light. It observed, nothing much was elicited in cross-
examination of CW.1.
34. It also noted PW.2 - PDO categorically stated that
defendant had not violated construction permission to conclude
that defendant had left proper set-back. Consequently, it held
findings of trial Court not calling for interference.
35. It rejected application for additional evidence on
ground that dispute between parties was confined to set-back
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and proposed additional evidence would not be relevant for said
purpose.
36. Sum and substance of plaintiff's contention herein is
that 'A' property was lying on lower level than suit property and
therefore failure to leave proper set-back would drastically
hinder free flow of natural light and air from defendant's
property, which plaintiff claims to have enjoyed uninterruptedly
for more than 30 years giving rise to right of easement by
prescription.
37. As rightly observed by both Courts, there was no
dispute about respective title of parties. While trial Court
observed plaintiff failed to establish measurement of 'A'
property given in plaint as authentic, first appellate Court
observed, dispute about measurement of properties was
irrelevant.
38. It is seen plaintiff is seeking to establish obstruction
of his right of easement by relying on Court Commissioner's
report in earlier suit. However, said report specifically mention
western wall of plaintiff's property extended into defendant's
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property upto 30 cms. at point 'C' to 'D' as shown in rough
sketch marked as Ex.P2.
39. Though, plaintiff deposed as PW.1 in terms of
plaint, in cross-examination, he admitted being unaware of
date of obstruction by defendant and to suggestion about
extending 3 ft. into defendant's property, admitting it was only
1½ ft., run contrary to plaintiff's claim. Even PW.2 - Chief
Officer of Pattana Panchayat who admitted visiting of both
properties, stated that defendant had left 2½ feet space at
backside and 3½ feet at front side and that there was no
violation of conditions of licence by defendant. Deposition of
PW.3 that defendant had put up construction without leaving
set-back would be inconsequential as he admitted being
unaware of measurement of properties.
40. On other hand, not only produced his title deed, he
also produced building licence and building plan as Exs.D.8 and
9 and deposed as DW.1 that without any encroachment of
plaintiff's property, he had put-up construction leaving set-back
as per building licence. In cross examination, it is elicited that
at time of purchase of defendant's property, it was vacant and
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about existence of tiled house of plaintiff on eastern side, and
that plaintiff's property was lower level while defendant's
property was on higher level.
41. Since, plaintiff is seeking to establish right of
easement by prescription, it would be appropriate to refer to
requirement in law to establish same. In Justiniano Antao v.
Bernadette B. Pereira, reported in (2005) 1 SCC 471,
Hon'ble Supreme Court held:
"9. ...... But in order to establish a right by
way of prescription one has to show that the
incumbent has been using the land as of
right peacefully and openly and without any
interruption for the last 20 years. There
should be categorical pleadings that since
what date to which date one is using the
access for the last 20 years. In order to
establish the right of prescription to the
detriment of the other party, one has to aver
specific pleadings and categorical evidence.
In the present case, after going through the
pleadings as well as the statement of the
witnesses it is more than clear that the plaintiff
has failed to establish that she has been using the
access peacefully, openly as of right for the last
20 years. ......"
(emphasis supplied)
42. This Court in Sudhakar Bhat v. Bhaskara Achari,
reported in 2019 SCC OnLine Kar 4220, held:
"Having regard to the submission of learned
Counsel for the appellants, material on record,
the question that arises for consideration of this
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Court is "Having held that pleadings of the
plaintiff were not compliant of Sections 13
and 15 of the Act and there was alternate
pathway to the plaintiff to enjoy his properties,
whether the First Appellate Court was right in
remanding the matter to the trial Court for
amendment of the plaint and for fresh trial?"
16. As pointed out, there was no dispute that the
plaintiff is owner of plaint Schedule 'A' properties
and defendant is owner of Survey No. 63/7.
Location of those properties as shown in Ex. P4
was also not disputed. Defendant did not even
dispute that in his land Survey No. 63/7, there is
pathway shown by letters E, D and C which leads
to National Highway-17 through Survey No. 61/7
a land adjoining Survey No. 63/7. According to
defendant that pathway was for his exclusive use
and plaintiff had no right over the same. Whereas
plaintiff claimed easement by prescription,
necessity as well as mamul right over that
pathway.
17. Right of easement is creation of the Indian
Easements Act, 1882. Section 13 of the said Act
deals with easement of necessity and quasi
easements. Section 15 of the Act deals with
acquisition of easement by prescription.
18. Perusal of Section 13 makes it clear that
easement of necessity arises only in cases of
transfer, bequest and division of joint
property by several persons. It was not the case
of the plaintiff that he acquired plaint Schedule A'
properties by way of transfer, bequest from the
defendants or by way of division of the properties
between him and the defendant. Therefore, claim
of the plaintiff for easement of necessity was
totally a misconception.
19. The other claim was easement of mamul user.
Easement of mamul user was explained by this
Court in Narayana's case referred to supra as
follows:
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"7. The employment of the phrase 'Mamul
right' in the plaint does not alter the
position to any extent since that
expression means no more than that for a
long period of time the plaintiff was
receiving water in to his land along the
artificial watercourse. But in a suit to
enforce the right to receive such water, the
plaintiff can succeed only if it is proved
that the right flows from a contract or from
a right acquired by prescription."
(emphasis supplied)
20. Thus by the ratio laid down by this Court in
the above referred judgment, it becomes clear
that easement of mamul user is again the right
accrued by user of the property for a long period.
Therefore that is acquisition by prescription under
Section 15 of the Act. Whereas in this case, the
plaintiff had sought relief of prescriptive
easement. Therefore, this relief of declaration of
mamul user was only duplication of claim of
easement by prescription of time.
21. From the above analysis, it becomes clear
that easement of necessity and prescriptive
easement are totally distinct from each other. The
only easement plaintiff could claim was
easement by prescription.
22. In the prayer in the plaint itself, plaintiff
contended that the suit pathway is public
pathway. Admittedly, it is situated in the land of
the defendant. None of the documents
produced by the plaintiff show that the said
property was public way. Even otherwise the very
claim of the plaintiff for prescriptive easement,
having regard to the language of Section 15 of
the Act, was inconsistent with plea of the suit
pathway being public pathway.
23. Section 15 of the Act which deals with
prescriptive easement states that as right relating
to access and use of light or air and for any
building having been peaceably enjoyed by any
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person claiming title thereto as of right without
interruption for 20 years.
24. What shall be pleadings of the plaintiff in such
case is enunciated in para 14 of Bachhaj Nahar's
case referred to supra, which reads as follows:
"14. Easements may relate to a right of
way, a right to light and air, right to draw
water, right to support, right to have
overhanging eaves, right to drainage, right
to a water course etc. Easements can be
acquired by different ways and are of
different kinds, that is, easement by grant,
easement of necessity,
easement by prescription, etc. A dominant
owner seeking any declaratory or
injunctive relief relating to an easementary
right shall have to plead and prove the
nature of easement, manner
of acquisition of the easementary right,
and the manner of disturbance or
obstruction to the easementary right. The
pleadings necessary to establish an
easement by prescription, are different
from the pleadings and proof necessary for
easement of necessity or
easement by grant. In regard to an
easement by prescription, the plaintiff is
required to plead and prove that he was in
peaceful, open and uninterrupted
enjoyment of the right for a period of
twenty years (ending within two years next
before the institution of the suit). He
should also plead and prove that the right
claimed was enjoyed independent of any
agreement with the owner of the property
over which the right is claimed, as any
user with the express permission of the
owner will be a licence an not an
easement. ............"
(emphasis supplied)
25. As already pointed out that the plaintiff
himself was not certain which easement he
was claiming of all the easements namely
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easement by necessity or easement by
prescription or easement by mamul user or
easement by grant. The entire pleading of
the plaintiff regarding use of the suit
pathway was in para 3(c) of the plaint. But
he did not state clearly since when he
started to use that pathway as of right to
reach National Highway No. 17.
26. Therefore, First Appellate Court held that
the pleadings of the plaintiff regarding
easement of prescription was not in
accordance with Section 15 of the Act. The
First Appellate Court also referred to the decision
in Bachhaj Nahar's case in its judgment. However
having held that the pleadings are not compliant
with law/Section 15 of the Act whether the First
Appellate Court could suo motu direct the plaintiff
to amend the pleadings is the question.
27. In Bachhaj Nahar's case referred to supra it
was held that in the absence of required pleadings
it would be hazardous to hold that relief can be
moulded and to grant the relief which was not
sought for. In Sk. Ibrahim's case referred to
supra, the Bombay High Court in similar case held
the Appellate Court should not have remanded
the matter for fresh trial by giving suo motu
directions to the parties to amend the pleadings
which the parties did not seek. The relevant
observations in the said judgment are as follows:
"When the parties fully aware of their
respective cases, lead all the necessary
evidence not only in support of their case
but in refutation of the claim of the other
side, non-framing of the issues cannot be
held to be a ground for remanding the
case unless it is fatal to the case or
resulted in mistrial which vitiates the
proceedings. Because if the evidence which
has been led before the
trial Court is sufficient to reach a right
conclusion and neither party has raised
any objection to the framing of the issues
before the trial Court, there was no reason
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why the first appellate Court should have
remanded the matter for fresh
trial by giving suo motu directions to the
parties to amend the pleadings which
parties themselves have not sought. This
is not permissible as a public policy for the
reason that it is for the parties to put up
their case in a proper manner and once
they undergo the rigour of the trial the
findings should not be interfered with
remanding the case. In the present case,
the parties have been litigating since the
year 1989, the question as to whether the
plaintiff is entitled to right of way by virtue
of prescriptive right or customary right of,
is a matter to be decided on merits as
whatever evidence the parties have in the
matter, has been led, but it is not the
grievance of either plaintiff or the
defendants that they were not given fair
opportunity to lead the evidence or
conduct the trial. The appellate Court has
also not examined the case on merits
which could have enabled it to assess the
judgment and decree of the Trial Court
and, therefore, reverting the parties back
to stage one could only result in prolonging
the litigation and unnecessary waste of
judicial time as well as causing
inconvenience to the litigants. Therefore
the order remanding matter for fresh trial
by giving suo motu directions to the
parties to amend pleading which parties
themselves have not sought, not proper."
(emphasis supplied)
28. The First Appellate Court having accepted that
the pleadings are not in accordance with law and
on accepting that as per Commissioner's report,
there is alternate pathway, was not justified in
remanding the matter for amendment of the
pleadings and for fresh trial. Plaintiff has not
appeared before this Court nor filed any cross
objection challenging the findings of the First
Appellate Court that pleadings are not in
accordance with law to claim prescriptive
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easement and there was alternate pathway.
Therefore, those findings against respondents-
plaintiff attained finality.
29. Under these circumstances, only course left
open to this Court now is to dismiss the suit.
Therefore, the appeal is allowed. The impugned
judgment and decree of the Courts below are
hereby set aside. The suit in OS No. 427/1997 on
the file of Principal Civil Judge (Junior Division),
Kundapura is hereby dismissed.
43. Indisputably, OS no.6/2004 was filed on different
cause of action than present suit. It is held in Cudalore
Powergen Corporation Ltd.'s case (supra) that subsequent
suit filed on different cause of action would not attract bar
under Order II Rule 2 of CPC. Though trial Court may have
erred on this count, same is rectified by first appellate Court.
Therefore, no substantial question of law would arise for
consideration.
44. With due deference to ratio laid down in Parappa's
case (supra), it is seen plaintiff has taken diagonally different
stands with regard to reliability of Court Commissioner' report
before each Court. In view of fact that both Courts have
assigned proper reasons for acceptance, no substantial
question of law would arise for consideration in this regard.
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45. Likewise, it is seen, rejection of application for
additional evidence is on ground that same would not be
relevant or necessary to elucidate dispute between parties
which was about leaving of set-back by defendant. Said
reasoning would be justified even applying ratio laid down in
Sri Manjunath and Smt.Ningamma's cases (supra).
46. When there is specific evidence to indicate that
plaintiff was seeking to claim right in respect of area exceeding
property purchase by him, about defendant putting up
construction in compliance with building licence by leaving set-
back and when plaintiff has extended his roof over defendant's
property, this would not be fit case for moulding of relief.
Hence proposed substantial questions of law are answered as
follows:
1) Whether findings of both courts that OS
no.27/2007 was barred under Order II Rule 2 of
CPC was erroneous?
Not arising for consideration.
2) Whether report submitted by Commissioner in
earlier suit on 12.11.2004 which has been marked
as Ex.C3 in present suit proves encroachment by
defendant and required set-back has not been left
by defendant?
Would be a finding of fact and not
constituting substantial question of law.
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NC: 2025:KHC:18991
HC-KAR
3) Whether both Courts were right in holding
appellant failed to prove his prescriptive right held
and enjoyed by him over 30 years as enshrined in
Section 15 of Indian Easements Act?
In affirmative and not giving rise to
substantial question of law.
4) Whether first appellate Court was justified in
dismissing application under Order XLI Rule 27 of
CPC?
In affirmative and not giving rise to
substantial question of law.
5) Whether both Courts were right in dismissing suit
in entirety than moulding relief appropriately in
facts and circumstances of case?
In affirmative and not giving rise to
substantial question of law.
47. Consequently, following:
ORDER
Appeal is dismissed with costs.
Sd/-
(RAVI V HOSMANI)
JUDGE
PSG,AV,GRD
