Allowed

Mahadevappa Dead by His Lrs. v. S B Mallappa

Karnataka HC17 Oct 2012RSA/538/2007

Case brief

AI extract

What is this about?

The High Court allowed the appeal and set aside the lower court's decree granting permanent injunction to plaintiffs claiming a right of way over a cart track. The court held that denying an easement without seeking a declaration of title is not maintainable under the Indian Easements Act.

What did the court decide?

The judgment and decree in R.A.No.337/2002 confirming O.S.No.264/1992 are set aside.

Mahadevappa Dead by His Lrs. Vs S B Mallappa — Property and Title | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 17TH DAY OF OCTOBER, 2012

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BEFORE

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THE HON'BLE MR. JUSTICE SUBHASH B ADI

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REGUAL SECOND APPEAL No.538/2007

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BETWEEN :

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MAHADEVAPPA, DEAD BY HIS LRS,

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(a) MAHADEVAPRASAD, S/O LATE MAHADEVAPPA, AGED ABOUT 47 YEARS,

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(b) SHIVABASAPPA, S/O LATE MAHADEVAPPA AGED ABOUT 45 YEARS,

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S K MALLAPPA SINCE DEAD BY LRS'

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2(a) SMT BELLAMMA, W/O LATE S.K. MALLAPPA, AGED ABOUT 54 YEARS.

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2(b) S.M. MALLIKARJUNAPPA, S/O LATE S.K MALLAPPA, AGED ABOUT 40 YEARS.

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2(c) SWAMY @ KEMPAPPA (UNMARRIED) DEAD.

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2(d) KUMARA @ KEMPAPPA, S/O LATE S.K. MALLAPPA,

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AGED ABOUT 35 YEARS.

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2(e) S.M. VEERAPPA, S/O LATE S.K. MALLAPPA, AGED ABOUT 31 YEARS.

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No.2(a) and 2(e) ARE RESIDING SHETTIHALLI VILLAGE, HANGALA HOBLI, GUNDLUPET TALUK, CHAMARAJANAGAR DISTRICT.

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2(f) PREMA, W/O BASAVANNA, D/O LATE S.K. MALLAPPA, AGED ABOUT 30 YEARS, RESIDENT OF KEBBUR, HUNDIPURA GUNDLEPET TALUQ, CHAMARAJANAGAR DISTRICT.

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BELLAPPA, S/O. LATE KEMPAPPA AGED ABOUT 60 YEARS.

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ALL ARE R/AT SHETTAHALLI VILLAGE, HANGALA HOBLI, GUNDLUPET TALUK. ….. APPELLANTS

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(BY SRI S ANIL KUMAR, ADV. FOR M/S.M. SIVAPPA & ASSOCIATES, ADVs)

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AND :

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S.B. MALLAPPA, S/O. BASAPPA, AGED ABOUT 65 YEARS.

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MAJI GOWDIKA GURUMALLAPPA, S/O. SIDDAPPA, AGED ABOUT 70 YEARS.

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NAGAPPA, S/O. MARIBASAPPA,

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AGED ABOUT 65 YEARS.

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DEVARAJAPPA, S/O. KALINGAPPA, AGED ABOUT 55 YEARS.

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DEVARAJAPPA DEAD BY LRS HIS WIFE NAGAMMA, AGED ABOUT 40 YEARS,

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ALL ARE R/AT SHETTAHALLI VILLAGE, HANGALA HOBLI, GUNDLUPET TALUK – 571 313 ...RESPONDENTS

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(BY SRI. P MAHESH ADVOCATE FOR R1; R2, R3, R4 AND LRS OF R5 SERVED)

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THIS RSA IS FILED UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED: 11.1.2007 PASSED IN RA.NO.337/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)& CJM, CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 29.6.2002 PASED IN OS.NO.264/1992 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, GUNDLUPET.

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THIS RSA IS COMING ON FOR FINAL HEARING THIS DAY THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is by the defendants against the judgment

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and decree in R.A.No.337/2002 dated 11.01.2007 on the file

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of the Civil Judge (Sr.Dn.), Chamarajanagar, confirming the

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judgment and decree of the Civil Judge (Jr.Dn.), Gundlupet, in O.S.No.264/1992 dated 29.06.2002.

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Parties are referred to as per their ranking in the Trial

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Court.

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Suit is one for permanent injunction interalia alleging that, the plaintiffs are the agriculturists having residential houses at Shettahally village. Plaintiffs used to stock their manure in their backyard behind their residential houses, during the month of January, usually every year, the plaintiffs used to lift the manure from their backyard to the lands, through the suit schedule cart track. The suit schedule cart track measures 15 feet width and 150 feet in length. The plaintiffs are using the suit schedule cart track for the last 40 years. Defendants are the owners of land bearing Sy.No.135/1 measuring 6 acres 13 guntas land of Shettahally Village. Towards the eastern side of their land, the alleged cart track i.e., Harijan’s street is existing, towards the eastern side of the Harijan's street, the defendants are having three backyards. From northern side to southern side, the road meets. The cart track is fully described in the schedule to the

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plaint. The defendants had filed suit in O.S.No.338/1987 before the Munsiff Court, Nanjangud, as then it was. These plaintiffs, who were defendants in the said suit, filed objections to the ad-interim temporary injunction. The Commissioner was appointed in the said suit and the said Commissioner submitted a report, based on which, I.A.1 filed by the plaintiffs, who were defendants in the said suit, was allowed and temporary injunction was granted and same was confirmed by High Court also and accordingly, plaintiffs claim that they are entitled for permanent injunction.

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The suit was contested by the defendants by filling the written statement. Defendants denied that the plaintiffs have any right of way in the suit schedule cart track. They also denied that, the plaintiffs are ever enjoying the said cart track. In turn, defendants claim that they are the owners of Sy.Nos.135 and 135/1 measuring 6 acres 13 guntas and denied the existence of Harijan Street on the eastern side of

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their land. They denied the existence of cart track also and

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also denied that, they are ploughing the cart track. It is the specific case of the defendants that, no cart track is existing in between Sy.Nos.135, 135/1 and their backyard and alleged that, the suit is not maintainable and also stated no cause of action is accrued to the plaintiffs to file a suit.

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The Trial Court on the basis of the pleadings framed

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following issues:

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(i) Do the plaintiffs proves that there is a suit schedule cart track as shown in the plaint rough sketch?

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(ii) Do they further prove that they are using the suit schedule cart track for the last 40 years for carrying the manure and having right of way over the same to reach their lands from their hittals.

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(iii) Do they further proves the alleges interference as true?

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(iv) Are the plaintiffs entitle to the relief sought for?

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(v) What decree or order?

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and held that the plaintiffs have proved that there is a suit

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schedule cart track as shown in the plaint rough sketch and it

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also held that the plaintiffs are enjoying the cart track for the

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last 40 years and accordingly it decreed the suit.

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As against the said judgment and decree, the defendants filed an appeal before the Lower Appellate Court.

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The Lower Appellate Court formulated the following points for consideration:

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(i) Whether the Trial Court has justified in decreeing the suit of the plaintiffs under impugned judgment and decree?

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(ii) Whether there are reasonable grounds for this Court to interfering in the Trial Court’s judgment and decree?

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(iii) What order?

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and dismissed the appeal, as against which, this appeal is filed.

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While admitting this appeal, this Court has

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formulated two substantial questions of law:

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(i) Whether the Courts below were justified in granting the injunction sought for though in the earlier proceedings injunction was granted in

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respect of a cart track which is 8 feet in width, whereas the cart track claimed in the suit is 15 feet in width?

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(ii) Whether the Courts below were justified in granting an injunction in respect of a cart track as an easement of necessity in the absence of a relief of declaration?

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Learned Counsel for the appellants submitted that,

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the suit itself is not maintainable, as it is not the case of the plaintiffs that, the suit schedule cart track belongs to them. The suit is only for bare injunction. Plaintiffs except producing the sale deed of the defendants, no other documents have been produced. When defendants have denied the existence of cart track and defendants have claimed that the alleged suit cart track is a property of the defendants falling in between their backyard and their lands, as such, without seeking declaration, right of easement could not have been decreed by granting permanent injunction. He also submitted that, when the suit itself is not maintainable,

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question of going into the merits of the case would not arise.

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On the other hand, learned Counsel for the plaintiffs

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submitted that, in the defendants' sale deed – Ex-P1, the eastern boundary is shown as Harijan’s Street, that itself is sufficient to show that there is a road adjacent to the property of the plaintiffs and it is not the defendants' property. Hence, the suit is maintainable for decree for permanent injunction. He also relied on Ex-P7 - Commissioner sketch and submitted that, there is cart track in existence and the plaintiffs have been using the same for last 40 years. Further submitted that, it is against the concurrent finding, this appeal is filed, hence, there is no substantial question of law arises in this appeal.

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In the light of the submissions made above, I

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answer the second substantial question of law first.

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It is the specific case of the plaintiffs in para-1 of the plaint itself that, the plaintiffs used to stock manure in

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the backyard of their houses and to reach the same, they have been using the suit schedule cart track for last 40 years. It is not the case of the plaintiffs that, they have got right, title and interest over the suit schedule cart track. If plaintiffs are using the cart track for last 40 years, which is specifically denied by the defendants and the defendants claim that the suit schedule cart track is part of their land. The simple suit for injunction without the relief of declaration of easementory right is not maintainable. Plaintiffs want the right of way by easement by prescription, then they have to establish their right over the said property. The easement by prescription under Section 15 of the Indian Easements Act could be granted where the access and the use has been peacefully enjoyed by the plaintiffs without interruption for the period of last 20 years next before suit. If a suit is filed for easementary right, the first requirement is to establish the right by seeking declaration, declaring that the plaintiffs have right of easement either by prescription or by necessity, as the case may be.

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However, both the courts below only on the basis of boundaries in sale deed of the defendants have granted the decree for permanent injunction. Both the courts have utterly failed to notice that the suit is only for bare injunction, without claiming declaration, as such, suit ought not to have been decreed. Merely claiming that they are using the said street does not by itself confer right on the plaintiffs,without establishing their right over the suit cart track. Except relying on the sale deed, plaintiffs have not produced any document to show that, it is a public road over which everyone has right.

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Even on perusal of the Commissioner's Sketch marked as Ex-P7, the suit cart track is in between land bearing Sy.No.135/2, 135/1 on one side and properties-1 to 4 of the defendants on the other side. Plaintiffs have not disputed that both these properties belong to the defendants and this property is in between their own property. Unless it is established that it is a public road, or that the plaintiffs

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have right of way, mere filing of suit only for bare injunction when the said right is denied, the suit should have been dismissed, as rights disputed are not established.

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Hence, in the absence of relief of declaration in

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respect of the suit schedule cart track, the judgment and decree passed by both the courts are not sustainable. Accordingly, the substantial question of law No.2 is answered in favour of the defendants and consequently, the appeal is required to be allowed.

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Accordingly, this appeal is allowed. The judgment and decree in R.A.No.337/2002, confirming the judgment and decree in O.S.No.264/1992, is hereby set aside. However, no order as to cost.

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Sd/JUDGE

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KNM/-

Mahadevappa Dead by His Lrs. v. S B Mallappa

Case brief

What is this about?

What did the court decide?

Mahadevappa Dead by His Lrs. v. S B Mallappa

Case brief

What is this about?

What did the court decide?

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