Karnataka High Court
Hanamanth Bhimappa Sankannavar vs Holabasappa Channappa Yamakanamardi on 19 June, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 793 of 2008
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JUNE 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO.793/2008 (DEC/INJ)
BETWEEN:
HANAMANTH BHIMAPPA SANKANNAVAR,
AGED ABOUT 49 YEARS, OCC: AGRICULTURE,
R/O: KALADAGI,
TQ & DIST: BAGALKOT - 587 101.
... APPELLANT
(BY SRI. S. R. HEGDE, ADVOCATE)
AND:
1. HOLABASAPPA CHANNAPPA YAMAKANAMARDI,
AGED ABOUT 62 YEARS, OCC:TEACHER.
Digitally signed by
SAROJA
2. NEELAVVA MAHALINGAPPA YAMAKANAMARDI,
HANGARAKI
Location: High
AGED ABOUT 57 YEARS, OCC: HOUSEHOLD WORK.
Court of Karnataka,
Dharwad Bench,
Dharwad
3. ISHWAR MAHALINGAPPA YAMAKANAMARDI,
AGED ABOUT 27 YEARS, OCC: AGRICULTURE.
4. SANGAPPA MAHALINGAPPA YAMAKANAMARDI,
AGED ABOUT 25 YEARS, OCC:AGRICULTURE.
5. SIDDAPPA MAHALINGAPPA YAMAKANAMARDI,
AGED ABOUT 23 YEARS, OCC:AGRICULTURE,
6. BASAPPA CHANNBASAPPA YAMAKANAMARDI
AGED ABOUT 57 YEARS, OCC: AGRICULTURE.
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7. GURUPADAPPA CHANNBASAPPA YAMAKANAMARDI,
AGED ABOUT 55 YEARS, OCC:AGRICULTURE,
8. MALAKAJAPPA CHANNBASAPPA YAMAKANAMARDI,
AGED ABOUT 52 YEARS, OCC: AGRICULTURE.
9. GURULINGAPPA CHANNBASAPPA YAMAKANAMARDI,
AGED ABOUT 55 YEARS, OCC: AGRICULTURE.
10. HOLABASAPPA CHANNBASAPPA YAMAKANAMARDI,
AGED ABOUT 52 YEARS, OCC: AGRICULTURE.
11. ISHWARAPPA SIDDALINGAPPA YAMAKANAMARDI,
AGED ABOUT 37 YEARS, OCC: AGRICULTURE.
12. YALLAPPA BHIMAPPA SANKANNAVAR,
AGED ABOUT 42 YEARS, OCC: AGRICULTURE.
13. RENAVVA MUTTAPPA AJODI,
AGED MAJOR, OCC:HOUSEHOLD WORK.
14. GOVINDAPPA BHIMAPPA SANKANNAVAR,
AGED MAJOR, OCC: HOUSE HOLD WORK.
15. SHRIDAR PARASHURAM DUNDANAKAR,
AGED MAJOR, OCC: AGRICULTURE.
16. VASANTH SRIDHAR DUNDANAKAR,
AGED MAJOR, OCC: AGRICULTURE.
RES. NO.12 TO 16 ARE ALL
R/O: KALADAGI, TQ & DIST: BAGALKOT - 587 101.
17. SANGAPPA MUCHAKANDAPPA TALIKOTI,
AGED ABOUT 57 YEARS, OCC: AGRICULTURE.
18. MAHANTAPPA MUCHAKANDAPPA TALIKOTI,
AGED ABOUT 47 YEARS, OCC: AGRICULTURE.
19. CHANNAVEERAPPA MUCHAKANDAPPA TALIKOTI,
AGED ABOUT 42 YEARS.
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RSA No. 793 of 2008
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20. MUTTAPPA MUCHAKANDAPPA TALIKOTI,
AGED ABOUT 32 YEARS, OCC: AGRICULTURE.
21. MALAKAJAPPA MUCHAKANDAPPA TALIKOTI,
AGED ABOUT 30 YEARS, OCC:AGRICULTURE,
RES. NOS.17 TO 21 ALL ARE
R/O: KALADAGI,
TQ & DIST: BAGALKOT - 587 101.
... RESPONDENTS
(BY SRI. PRANAV BADAGI, ADVOCATE
FOR SRI. S.B. HEBBALLI, ADVOCATE FOR R1 TO R11;
SRI. N.L.BATAKURKI, ADVOCATE FOR R18 AND R20;
SRI. S.S.BAWAKHA, ADVOCATE FOR R19;
R12 TO R16 AND R21 ARE SERVED;
V/O DATED: 21.10.2024 APPEAL STANDS
ABATED AGAINST R17)
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE PRAYING TO ALLOW THIS APPEAL AND SET
ASIDE THE JUDGMENT AND DECREE DATED 14.03.2007 PASSED
BY THE COURT OF FAST TRACK COURT NO.II BAGALKOT IN
R.A.NO.14/2005 AND CONSEQUENTLY CONFIRM THE JUDGMENT
AND DECREE DATED 18.12.2004 PASSED BY THE COURT OF
PRINCIPAL CIVIL JUDGE (JR.DN.) BAGALKOT O.S.NO.172/2000
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 793 of 2008
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ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. This Regular Second Appeal is filed by the legal
representatives of the deceased defendant No.1, being
aggrieved by the judgement and order dated 14th March
2007, passed in R.A. No.14/2005 by the Fast Tract Court
No.II, Bagalkot (for short "the First Appellate Court"), by
which the First Appellate Court, while allowing the appeal
filed by defendant Nos.5 to 9, set aside the judgment and
decree dated 18th December 2004, passed in O.S.
No.172/2000 by the Prl. Civil Judge (Jr. Dn.), Bagalkot (for
short "the trial Court").
2. The First Appellate Court further declared that
the plaintiffs have acquired the right of easement by
prescription over the suit schedule "ABCD" pathway in the
land belonging to defendant Nos.1 and 2, for the purpose of
accessing their lands bearing R.S. Nos.56/1 and 56/2 of
Sharadal Village to carry out agricultural activities.
Consequently, defendant Nos.1 and 2 were restrained from
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causing any obstruction to the plaintiffs in the use and
enjoyment of suit "ABCD" pathway.
3. Plaintiffs filed the above suit in O.S. No.172/2000
against defendant Nos.1 to 9, contending inter alia;
(a) That plaintiff Nos.1 to 5 are the owners of R.S.
No.56/1 and plaintiff Nos.6 to 8 are the owners of R.S.
No.56/2. Originally, the land bearing R.S. No.56
belonged to one Saidusab Soudagar, who sold the said
land in 1955 to the ancestors of the plaintiffs.
Subsequently, there was a partition amongst the
ancestors of the plaintiffs, resulting in creation of two
subdivisions assigning R.S. Nos.56/1 and 56/2 in the
year 1974.
(b) That defendant Nos.1 and 2 are the owners of the
lands bearing R.S. Nos.56/2/2 and 54/2/1. Defendant
Nos. 3 to 9 are the owners of lands bearing R.S.
Nos.55/2A, 55/2B and 55/1, respectively.
(c) A hand sketch has been produced along with the
plaint, depicting the location of the properties owned
by the plaintiffs and defendant Nos.1 to 9.
(d) That ever since the purchase in the year 1955, they
have been accessing their respective lands using cart,
agricultural implements, and with the help of servants,
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from Kaladagi Village via the pathway shown as
"ABCD" in the hand sketch. At point "B", they take
diversion towards West into the land belonging to
defendant Nos.1 and 2, proceed to point "C", and from
there, enter their lands. Thus, it is claimed that the
plaintiffs have been exercising a prescriptive right of
easement over the portion marked "ABCD" in the hand
sketch, which forms part of the land owned by
defendant Nos.1 and 2.
(e) That they have been exercising the said prescriptive
right of easement peacefully and without any
obstruction ever since the date of purchase, and that
they have no other access to their lands. However,
defendant Nos.1 and 2, who own the adjoining lands,
are now obstructing the plaintiffs from accessing their
land. It is further contended that the lands bearing
R.S. Nos.55/2A, 55/2B and 55/1, owned by defendant
Nos.3 to 9, are situated adjacent to the land of the
plaintiffs, and abutting the main road. That the
defendants also have an obligation to provide access
to the plaintiffs for agricultural purpose, by way of
customary rights, through the portion marked as
"APQD" in the hand sketch. Hence, the present suit
seeking the following reliefs:
"A. It be declared that plaintiffs have acquired,
easementary right by way of prescription as
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well as by way of necessity to approach their
lands R.S.Nos.56/1 and 56/2 of Shardal with
carts, bullocks, men, agricultural establishment
etc. along ABCD as shown in this plaint sketch.
B. It be declared also that the plaintiffs have
acquired customery right to approach their
lands through R.S.Nos.55/2A, 55/2B and 55/1
of defendants 3 to 8 along APQD, shown in the
plaint sketch.
C. A consequential permanent injunction be issued
against defendants, their men, agents,
servants restraining them from interfering with
plaintiffs' right of prescription necessity as
customary right as stated above, along the suit
way as shown in ABCD, in the plaint sketch.
D. Costs of the suit be awarded to the plaintiffs
from defendants."
4. Defendant Nos.1 and 3 to 9 appeared through
their respective counsel. Defendant No.2 is stated to have
passed away during the pendency of the suit, and his Legal
representatives were not brought on record. Defendant
No.1 filed a written statement on 31.07.2002 along with a
hand sketch. Defendant No.8 also filed his written
statement with a hand sketch map on 18.07.2002, which
was adopted by defendant Nos.5 to 9 by filing a memo.
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5. In his written statement, defendant No.1 denied
the case of the plaintiffs and contended:
(a) That the hand sketch produced by the plaintiffs along
with the plaint was incorrect and misleading.
Accordingly, he submitted a separate hand sketch
along with his written statement. However, defendant
No.1 admitted that plaintiff Nos.1 to 5 are the owners
of the land bearing R.S. No.56/1 and plaintiff Nos.6 to
8 are the owners of the land bearing R.S. No.56/2. He
also admitted that the land bearing R.S. No.56 had
been divided into two subdivisions.
(b) That there is an existing road leading from Sharadal
Village to Kaladagi and Kajjidoni Village, as shown in
the hand sketch map filed by the defendants. This
road abuts the northern side of the land of one
Kharikatti. Defendant No.1 claimed that at point "C"
he turns southward, and this pathway leads to
Kajjidoni Village. That all the plaintiffs access their
land through the Kaladagi road, turning at point "C",
them proceeding to point "E", and from there to point
"F" to reach their land, as shown in the hand sketch
map produced in the written statement.
(c) That defendants access their land through Kaladagi-
Kajjidoni road at points W1, W2 and W3. Defendant
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No.1 contended that the plaintiffs, or their ancestors
and predecessors, have always reached their lands
bearing R.S. Nos.56/1 and 56/2 through the said
pathway shown in the map produced by defendant
No.1, since time immemorial and as such the claim of
the plaintiffs using the portion of land marked "ABCD"
in their hand sketch map produced along with the
plaint is incorrect.
(d) That there is a bund at point "AD" in the hand sketch
map of defendants, which is having a height of 6 feet
and hence there is no question of claiming right of way
over such bund and the said bund exists for more than
100 years. That there are two alternative routes in
existence for the plaintiffs to reach their lands, as
shown in the hand sketch map, which is produced
along with the written statement. Thus, it is submitted
that the suit is filed only to cause unnecessary
hardship to the defendants and hence, sought for
dismissal.
6. Defendant No.8 in his written statement denied
the plaint averments. Defendant No.8 also produced a hand
sketch contending that in the middle of land bearing R.S.
No.55/1 there is a bund running from North to South and
the width of the said bund is about 8 to 10 feet and the
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height is 10 feet and the same is existing for over 100
years, as such the plaintiffs cannot claim any customary
right over the portion of the property. Hence, he sought for
dismissal of the suit.
7. Based on the pleadings, the trial Court framed
the following issues:
1. Whether the plaintiffs prove contents of
hand sketch map annexed to plaint?
2. Whether the plaintiffs are exercising their
prescriptive right of easement along
"ABCD" shown in the plaint sketch from
point of B to C since the time of their
purchase of suit lands?
3. Whether the plaintiffs further prove that the
suit way is the only way to approach their
lands for the purpose of agricultural
operation?
4. Whether the plaintiffs prove any obstruction
of defendants over their right to use and
enjoy the suit way to approach their lands?
5. Whether the plaintiffs acquire customary
right to approach their lands R.S.No.55/2A,
along "ABQB" portion?
6. What order or Decree?
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8. Plaintiff No.1 got examined himself as PW1 and
also examined two other witnesses as PW2 and PW3. The
plaintiffs produced and marked 10 documents as Exs.P1 to
P10. The legal representative of the deceased defendant
No.1 examined himself as DW1 and also examined two
witnesses as DW2 and DW3, and marked 3 documents as
Exs.D1 to D3. Defendant No.7 examined himself as DW4. At
the instance of defendant Nos.1 and 5 to 9, a Commissioner
was appointed, who was examined as CW1. The
commissioner's report and the accompanying map were
marked as Exs.C1 and C2.
9. On appreciation of the evidence, the trial Court
answered issues Nos.1 to 5 partly in the affirmative and
partly in the negative. Consequently, partly decreed the suit
by declaring that the plaintiffs had acquired an easementary
right by way of prescription and necessity over the southern
portion of the land bearing R.S. No.55/1 belonging to
defendant Nos.5 to 9, for the purpose of accessing their
lands bearing R.S. Nos.56/1 and 56/2 and consequently
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restrained defendant Nos.5 to 9 from causing any
obstructions to the plaintiffs' use of the said pathway.
10. Being aggrieved by the judgment and decree of
the trial Court, defendant Nos.5 to 9 preferred an appeal in
R.A. No.14/2005. The First Appellate Court, after
considering the grounds urged and the pleadings, framed
the following points for its consideration:
1. Whether the plaintiffs prove that they are
using the suit ABCD way in the lands of
defendants-1 and 2 shown in the sketch to
approach their land since time immemorial
and further proves that they are enjoying
the said suit way more than statutory
period and they have acquired right of
easement by prescription over the suit
way?
2. Whether the plaintiff alternately proves that
they have acquired customary easements
over the way shown in ABPQ in the land of
defendants-3 to 8?
3. Whether the defendants prove that the
plaintiffs have got alternate way to reach
their lands?
4. Whether the defendants/appellants prove
that the findings recorded by the trial court
on the issues are erroneous and perverse,
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hence the impugned judgment and decree
passed by the court below is not
sustainable in law?
5. What order?
11. The First Appellate Court, on re-appreciation of
the evidence, answered point Nos.1 and 4 in the affirmative
and point Nos.2 and 3 in the negative and consequently it
allowed the appeal and set aside the judgment and decree
passed by the trial Court. The judgment and decree of the
trial Court was modified declaring that the plaintiffs have
acquired a right of easement by way of prescription over
the suit pathway marked "ABCD" in the land of defendant
Nos.1 and 2, for the purpose of accessing their land bearing
R.S. Nos.56/1 and 56/2 for agricultural operations and
restrained the defendants from causing any obstruction to
the plaintiffs in the use and enjoyment of the said "ABCD"
pathway.
12. Being aggrieved by the judgment and order of
the First Appellate Court, the legal representative of
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defendant No.1 is before this Court in this Regular Second
Appeal.
13. By order dated 30.08.2012, this Court admitted
the appeal to consider the following substantial question of
law, which reads as under:
"Whether the lower appellate Court has
erred in law in discarding the Commissioner's
report - Ex.C1 and the map - Ex.C2?"
14. Learned counsel Shri S.R. Hegde, appearing for
the legal representative of defendant No.1, while reiterating
the grounds urged in the memorandum of appeal,
submitted;
(a) That the First Appellate Court erred in rejecting the
Commissioner's report merely on the ground that the
report and the sketch did not tallying with the map
produced by the plaintiffs and the defendants. That
the very purpose of appointing the Commissioner was
to ascertain the factual aspects of the matter, which
are clearly reflected in the report and the
accompanying sketch. However, instead of
appreciating this evidence, the First Appellate Court
discarded it. Non-consideration of the Commissioner's
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report and sketch amounts to perversity in
appreciation of the evidence, warranting interference
at the hands of this Court.
(b) That defendant No.1, in his written statement,
specifically pleaded the existence of a bund
approximately having a height of 6 feet which existed
since time immemorial which fact is also forthcoming
in the report of the Commissioner. That in light of the
existence of this bund, the claim of the plaintiffs of
they using the portion marked "ABCD", which forms
part of the property of defendant Nos.1 and 2, is
impractical. This aspect of the matter has been lost
sight of by the First Appellate Court. He submits that
since the physical features of the property were clearly
established beyond reasonable doubt, the First
Appellate Court ought to have accepted the same and
rejected the case of the plaintiffs.
(c) Referring to the commissioner's report, he submitted
that the Commissioner has categorically noted the
existence of a cart road at point "E" and "F" as well as
a pathway at point "K" and "J", which are located on
the property belonging to defendant Nos.5 to 9. By
ignoring this material evidence on record, the First
Appellate Court erroneously decreed the suit in favour
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of the plaintiffs. Therefore, he prayed for the appeal to
be allowed and the suit to be dismissed.
15. Learned counsel Shri Pranav Badagi, appearing
for the plaintiffs, submitted;
(a) That the plaintiffs had specifically made out a case,
both in their pleadings and in the evidence of having
acquired a prescriptive easementary right of way over
the portion of the property marked as "ABCD", forming
part of the land belonging to defendant Nos.1 and 2.
He pointed out that the vendor of the plaintiffs, who
sold the properties to them in the year 1955, was also
examined as PW2. Further, the defendants did not
cross examine PW1, and though PW2 was cross-
examined, nothing was elicited to discredit his
testimony. Nothing suggested regarding the existence
of the bund on the property of defendant No.1.
(b) That no contrary evidence was brought on record, and
since the case of the plaintiffs remained unchallenged,
the First Appellate Court rightly took note of these
aspects of the matter and decreed the suit as
sought for.
(c) That the Commissioner's report contradicts even the
sketches produced by defendant Nos.1 and 2, and
therefore, the First Appellate Court rightly discarded
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the Commissioner's report. Hence, he prayed for
dismissal of the appeal.
16. Heard. Perused the records.
17. In terms of Section 15 of the Easement Act,
1882, the plaintiffs are required to plead and prove that
they have been using the portion of land as of right
peacefully and openly without any interruption for the past
20 years.
18. In the present case, the claim of the plaintiffs is
that they have been utilising and using the portion of the
property marked as "ABCD" forming part of the land
belonging to defendant Nos.1 and 2 uninterruptedly ever
since they acquired their properties under the sale deed
executed in the year 1955 . It is also their case that even
prior to the purchase, their predecessors in title were
utilising the said portion of land now held by defendant
Nos.1 and 2. As such they have acquired prescriptive right
of easement of way over the said portion of land.
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19. In support of their pleadings, plaintiff No.1
examined himself as PW1 and also examined their vendor
as PW2. PW1 was not cross-examined by defendant No.1.
Therefore, his evidence remained unimpeached. PW2, the
vendor of the plaintiffs, who was aged about 90 years, the
day when he was examined has withstood the test of cross-
examination. He has categorically deposed that the land in
possession of defendant Nos.1 and 2 was being used, and
continues to be used, for the purpose of ingress and egress
to the land now held by plaintiffs. Defendant Nos.1 and 2 do
not dispute that the plaintiffs are the owners of the said
land, having purchased in the year 1955.
20. In the light of the aforesaid pleadings and
evidence adduced by the parties and in the absence of
cross-examination of PW1 by defendant Nos.1 and 2 as well
as the failure to discredit the testimony of PW2, the First
Appellate Court rightly accepted the case of the plaintiffs
that they had established their prescriptive right of
easement over the portion of property marked as "ABCD".
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In the absence of any contrary evidence or material brought
on record, no fault can be found on first appellate court in
this aspect of the matter.
21. As regards the grounds urged in the appeal by
defendant No.1 concerning the First Appellate Court
discarding the report of the Court commissioner, it is settled
position of law that though the commissioner's report forms
part of the Court record, the report and the evidence of the
Commissioner must be assessed and appreciated like any
other evidence made available by the parties. The report of
the Commissioner and his evidence do not by itself
constitute substantive evidence. The same has to be
appreciated accepted by corroborating the other evidence
available in record. [Praga Tools Corporation Ltd., Vs.
Mahboobunnissa Begum (Smt) and others1]
22. It is further important to note that the pleadings
and evidence led by the plaintiffs are in consonance with
the hand sketch produced along with the plaint. Defendant
(2001) 6 SCC 238
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No.1 has also produced a hand sketch along with his written
statement, indicating the route allegedly used by both the
defendants and the plaintiffs to access their respective
lands. What is necessary to note in the said sketch is the
portion marked between the letters "A" and "D" which,
according to the defendants, as pleaded in paragraph 6 of
the written statement, is the bund having the height of
about 6 feet that has existed for over 100 years. The
existence of this bund is claimed by the defendant to be an
impediment to the use of plaintiffs of the area marked
"ABCD" as a pathway.
23. Learned counsel for the appellant, referring to
the hand sketch produced by the defendants along with the
written statement and the sketch attached to the
Commissioner's report, submitted that the existence of the
said bund is depicted even in the Commissioner's report,
thereby making it impossible to accept the claim of the
plaintiffs of they having acquired prescriptive right of
easement over the area marked as "ABCD". However, this
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submission cannot be accepted for the reasons that even
according to the hand sketch produced by defendant No.1,
the alleged bund purportedly runs from West to East (or
vice versa) at the point marked "A" and "D" in the sketch
having a height of 6 feet. No such bund is shown in the
Commissioner's report; The Commissioner's report,
however, points out the existence of a bund at point "P" and
"Q" which runs North to South (or vice versa) with the
height and width as 3 feet by 3 feet; Except for the
reference to the bund in paragraph 6 of the written
statement and as shown in the hand sketch, no further
evidence has been led in this regard. Even in the affidavit
filed in lieu of evidence of DW2 there is neither any mention
whatsoever with regard to the bund as claimed, nor was
any suggestion regarding its existence was made to PW2
during his cross-examination. Thus, the defendants have
failed to show the existence of the bund as pleaded at
paragraph 6 of the written statement and as shown in their
hand sketch.
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24. Moreover, except stating the height of the bund
at points "A" and "D", there is no details of its width and
length. The existence/dimensions of the bund noted in the
Commissioner's report do not correspond to those alleged
by defendant No.1, either in the written statement or in the
sketch, as referred to above.
25. Further the Commissioner has pointed out
existence of a pathway along the lines marked "K" and "J",
which apparently leads through the southern side of
property of defendant Nos. 5 to 9. The Commissioner also
noted the existence of a cart road at points "E" an "F",
which belong to some person, who is not a party to the suit.
26. Under these circumstances, the First Appellate
Court rightly declined to accept the commissioner's report,
which cannot be found fault with. In the absence of
appellants/defendants pointing out any perversity in the
appreciation of evidence by the First Appellate Court, this
Court finds no reason to interfere with the same.
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27. The substantial question of law raised above is
answered accordingly. The appeal is, therefore, dismissed,
and the judgment and order passed by the First Appellate
Court are confirmed.
28. Pending applications, if any, do not survive for
consideration and are accordingly disposed off.
Sd/-
(M.G.S. KAMAL)
JUDGE
VNP / CT-ASC
