Allowed

Sri Rudrappa S/O Mahadevappa @ Mallappa Astagi v. Sri Mahadevappa S/O Tavanappa Astagi

Karnataka HC10 Mar 2017RSA/2354/2005

Case brief

AI extract

What is this about?

In an appeal against a First Appellate Court judgment that dismissed a suit for declaration of easementary rights, the High Court of Karnataka allowed the appeal. It reversed the lower court, held that oral evidence and admissions under Section 18 of the Evidence Act (including in criminal proceedings) suffice where no documents exist, and restored the trial court's decree granting plaintiffs' eas

What did the court decide?

Judgment of First Appellate Court set aside; judgment of trial court regarding plaintiffs' easementary right restored; no order as to costs.

Sri Rudrappa S/O Mahadevappa @ Mallappa Astagi Vs Sri… — Property and Title | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF MARCH, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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R.S.A. NO.2354/2005 (DEC/INJ)

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BETWEEN:

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SRI RUDRAPPA S/O MAHADEVAPPA @ MALLAPPA ASTAGI, AGED ABOUT 74 YEARS, OCC: AGRICULTURE, R/O. UPPIN-BETGERI, TALUKA AND DIST. DHARWAD - 580001

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SRI PADAMAPPA S/O YALLAPPA ASTAGI, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, R/O UPPIN-BETGERI, TALUKA AND DIST. DHARWAD –580001.

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SRI BHIMAPPA @ BHIMASHI S/O YALLAPPA ASTAGI, AGED ABOUT 38 YEARS OCC: AGRICULTURE R/O UPPIN-BETGERI, TALUKA AND DIST. DHARWAD –580001.

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SRI CHANDRAPPA S/O YALAPPA ASTAGI, AGED ABOUT 30 YEARS, OCC: AGRICULTURE, R/O UPPIN-BETGERI, TALUKA AND DIST. DHARWAD –580001.

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SRI JINNAPPA S/O YALLAPPA ASTAGI, AGED ABOUT 28 YEARS, OCC: AGRICULTURE, R/O UPPIN-BETGERI, TALUKA AND DIST. DHARWAD –580001.

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SRI SATAPPA S/O GANGAPPA ASTAGI, AGED ABOUT 56 YEARS,

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OCC: AGRICULTURE, R/O UPPIN-BETGERI, TALUKA AND DIST DHARWAD –580001 7. SRI MALLAPPA S/O GANGAPPA ASTAGI, AGED ABOUT 54 YEARS, OCC: AGRICULTURE, R/O UPPIN-BETGERI, TALUKA AND DIST DHARWAD –580001. 8. SRI RAYAPPA S/O GANGAPPA ASTAGI, AGED ABOUT 50 YEARS, OCC: AGRICULTURE, R/O UPPIN-BETGERI TALUKA AND DIST DHARWAD –580001. 9. SRI CHANDRAPPA S/O GANGAPPA ASTAGI, AGED ABOUT 48 YEARS, OCC: AGRICULTURE, R/O UPPIN-BETGERI TALUKA AND DIST DHARWAD –580001. 10. SRI BASAPPA S/O GANGAPPA ASTAGI, AGED ABOUT 46 YEARS, OCC: AGRICULTURE, R/O UPPIN-BETGERI TALUKA AND DIST DHARWAD–580001. 11. SRI JAYAPAL S/O GANGAPPA ASTAGI, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, R/O UPPIN-BETGERI TALUKA AND DIST DHARWAD –580001. ... APPELLANTS (BY SRI RAMAKRISHNA S HEGDE, ADVOCATE) AND :

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SRI MAHADEVAPPA S/O TAVANAPPA ASTAGI, AGED ABOUT 68 YEARS, OCC: AGRICULTURE, R/O UPPIN-BETGEIR, TALUKA AND DIST DHARWAD –580001. 2. SRI SHANTAPPA S/O TAVANAPPA ASTAGI,

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AGED ABOUT 58 YEARS, R/O UPPIN-BETGERI, TALUKA AND DIST DHARWAD –580001.

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... RESPONDENTS

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(BY SRI : RAVI S BALIKAI, ADVOCATE FOR R1 & R2 )

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED:29.08.2005, PASSED IN R.A.NO.148/2002 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN.) & CJM, DHARWAD, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DATED: 28.6.2002 IN O.S.354/2001 ON THE FILE OF THE I ADDL. CIVIL JUDGE (JR.DN.) & JMFC., DHARWAD.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.02.2017, AND COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING : -

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JUDGMENT

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The I Addl. Civil Judge (Sr. Dn.) Dharwad decreed the suit of plaintiffs O.S. No.354/2001 declaring that they have got right of easement of passage on the property of the defendants and dismissed the counter claim of defendants. The I Addl. Civil Judge (Sr.Dn.), Dharwad, by his judgment and decree dated 29.08.2005 in R.A. No.148/2002 reversed the judgment of the Civil Judge (Jr.Dn.) and dismissed the suit. Aggrieved by this judgment and decree of First Appellate Court, the plaintiffs have preferred this second appeal.

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The plaintiffs and the defendants are the residents of village Uppin-Betageri, Dharwad taluk. The case of the plaintiffs is that they are the owners being in possession of property bearing V.S.S. No.466. This property earlier belonged to Malleshappa, the father of first plaintiffs. The defendants are the owners of the property bearing V.S.S. No.529. In this property No.529, there is a passage, which the plaintiffs have been and their forefathers were using in order to reach their property bearing No.466. This passage is marked ABCDA in the sketch annexed to the plaint. The plaintiffs state that there is no any other way except this passage which provides access to their property from the road.

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The plaintiffs have also stated that Malleshappa i.e., first plaintiff’s father and one Tavanappa, father of the defendants are relatives and in a partition that took place during the life time of Malleshappa’s grandfather and defendants’ great grandfather, property bearing V.S.S. No.466 and V.S.S. No.528 were allotted to Malleshappa’s grandfather and properties V.S.S. No.529 and V.S.S. No.532 were allotted to defendants’ great grandfather. Therefore,

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the plaintiffs state that the said passage has been in existence for more than 60 years and that they have been using the passage as there is no any other way to reach their property, and thus, they have right of easement by necessity and prescription. Since the defendants No.1 and 2 caused obstruction to their using this passage by picking up quarrel, they filed a suit seeking declaration of easementary right and injunction to restrain the defendants from causing obstruction to their using the passage ABCDA.

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The defendants, in their written statement, deny the case of the plaintiffs and state that the plaintiffs have got access to the main road through their properties bearing No.469 and 472. The plaintiffs have never accessed the public road through their property bearing No.529, and therefore, the plaintiffs cannot exercise right of easement by prescription or necessity.

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The defendants have also set up counter claim by stating that they are also in possession of another house and backyard of property bearing No.529 of Uppin-Betageri village. In between the said house and backyard of defendants there exists a house and backyard of plaintiffs.

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In order to go to the backyard portion belonging to them from their property bearing No.529, they have been making use of the plaintiffs backyard. The passage, which they have been using is shown in letters DCLM in the sketch annexed to the written statement. The defendants, therefore, also say that they have got right of easement over the passage DCLM and since the plaintiffs caused obstruction to their making use of this passage and closed the passage by fixing a door, they sought counter claim seeking a declaration and injunction in respect of passage DCLM.

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The trial Court raised eight issues on the basis of the pleadings. From the plaintiffs side P.Ws.1 to 4 gave evidence and got marked 18 documents as per Ex.P-1 to P- 18. From the defendants side D.W.1 to 4 adduced evidence and produced four documents as per Ex.D-1 to D-4. Evaluation of evidence by the trial Court is to the effect that the property bearing No.529, upon which easement is sought to be imposed by the plaintiffs is situated by the side of the public road on the southern side. There is a house property bearing No.532 belonging to the defendants situated on the eastern side of property No.529 and property No.466. The

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plaintiffs are residing in a house property bearing No.466 and to reach their property, either they have to take a course through property No.469, 471 and 472 or through property No.529. But, these properties No.471 and 472 belong to one Bheemappa Ajjappa Nyamappa and Bommannavar Kallappa and others, which are private properties and therefore, the plaintiffs cannot claim easementary right over those properties. The only way convenient to the plaintiffs is available in property No.529. P.W.1 in his evidence has asserted the existence of a passage in property No.529 and more so D.W.1 admitted during cross examination in a criminal case, C.C. No.151/2000, that the plaintiffs were using the passage in their property. He also admitted that the plaintiffs had drawn electricity line and water pipes through the said passage and therefore, with this evidence the trial Judge came to the conclusion that the plaintiffs could make use of this passage by way of necessity, which is nothing but an easementary right. However, the trial Court also held that the plaintiffs had not pleaded and proved the another easement, namely, easement of prescription. With regard to the counter claim set up by the defendants, the trial Court came to the conclusion that the defendants were

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unable to prove their right to use plaintiffs property to reach their backyard in property No.462, and therefore, dismissed the counter claim.

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The First Appellate Court reversed the judgment of the trial Court by holding that the trial Court has committed an error in upholding the right of easement of the plaintiffs even though the plaintiffs failed to produce any document in proof of existence of easementary right. It has held that for establishing easementary right either by way of prescription or necessity, there should be documents establishing the right of the plaintiffs. Another reason given by the First Appellate Court is that there is another passage available in property No.472 as evidenced by Ex.D-2 to reach the public road. The trial Court has placed reliance on the oral evidence of P.Ws.1 to 4, which is not sufficient. As regards the admission given by D.W.1 in a criminal case, the First Appellate Court has observed that the evidence given in a criminal case cannot be relied upon in a civil case. It has also held that even the defendants rely upon oral evidence to establish their counter claim, which is also not sufficient.

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Giving these reasons mainly, the First Appellate Court dismissed the suit as well as the counter claim.

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On 18.01.2008 this appeal was admitted on the following substantial question of law :

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“Whether the lower Appellate Court was justified in holding that the plaintiff has not proved the right of passage by way of easement solely on the ground that no documents are produced evidencing the same?”

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The counsel for the appellants / plaintiffs argues that when the trial Court discussed the evidence at length and came to the conclusion that the plaintiffs had a right of easement to make use of passage in property No.529 to reach the public road, the First Appellate Court committed an error in reversing the judgment only on the reason that document has not been produced for establishing the easementary right. He elaborated his argument by canvassing the points that in the written statement what is found is bare denial of the plaint averments, there is no substantial denial. This amounts to accepting the plaintiffs’ case. If the written statement is read, it becomes very clear that the defendants are more interested in asserting right of

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passage on the property of the plaintiffs than denying the plaintiffs’ right to make use of a passage existing in their property. The defendants have not questioned the dismissal of the counter claim by the First Appellate Court. If the questions put to P.W.1 in the cross-examination are seen, it becomes further clear that the defendants are claiming right of passage over the plaintiffs’ property to reach the backyard of their property. The plaintiffs have produced a sketch as per Ex.P-1, which was prepared by Village Surveyor. This sketch is not denied by the defendants. If this sketch is seen, it can be understood that the plaintiffs are exercising right of easement for accessing the public road situated towards southern side from the main door of their house. The First Appellate Court has mentioned about existence of another passage, but this passage does not provide access to the public road, as shown in Ex.P-1. Even if there is some passage, it is on the backyard which cannot be used as a passage providing access to the public road. D.W.1 in the cross-examination has given a clear admission about the plaintiffs’ making use of the passage in property No.529. This admission was given on oath in a judicial proceeding and the First Appellate Court has wrongly held that the

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evidence recorded in a criminal case cannot be looked into in a civil case. The plaintiffs also clearly pleaded that there was a partition long back and because of this partition, easement of necessity arose and that right still exists. The defendants do not dispute this partition. Therefore, it is his argument that the judgment of the trial Court insofar as it relates to upholding the easementary right of plaintiffs has to be restored by setting aside the judgment of the First Appellate Court.

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The counsel for the respondents – defendants argues firstly that the plaintiffs are not clear as to the nature of easement that they are trying to enforce on the defendants’ property. If the plaint is read, it can be said that the plaintiffs on one hand assert about easement of necessity and also on the other hand speak about right of prescription. The plaintiffs cannot claim two types of easement at a time, he should confine to one. The evidence to be placed before the Court about easement of necessity is different from establishing easement by prescription. There must be specific pleading with regard to the easementary right. The plaintiffs have not proved easement of necessity. There is

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alternative passage. In Ex.D-1 nothing is there to show about reserving easementary right. D.W.1 has not admitted plaintiffs’ making use of the passage in property No.529, actually it is a denial statement. Therefore, it is his argument that the First Appellate Court is right in reversing the judgment of the trial Court. In support of his argument, he has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Justiniano Antao and others

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versus Bernadette B. Pereira (Smt), reported in (2005) 1 Supreme Court Cases 471 . He also argued that in the facts and circumstances, another substantial question of law can be raised and according to him, it is as follows :

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“In the absence of necessary ingredients regarding easement by prescription or easement of necessity being pleaded, whether suit of plaintiffs is maintainable?”

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In the light of the arguments, I feel that the above question which appears to be substantial needs to be answered first before answering the question raised by this court at the time of admitting this appeal.

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The plaintiffs have pleaded about easement of necessity as also easement by prescription. Both are different concepts. Section 13 of the Indian Easements Act deals with easement of necessity and it arises when there is a transfer or bequest or partition of the property. Section 15 of the Act deals with easement by prescription. Continuous and uninterrupted exercise of right by one person to have access to air or light for a building; to get support for one’s building or land from another person’s land, and to use others land as a way, for a minimum period of 20 years gives rise to exercising right of easement by prescription. Indeed the plaintiffs who assert right of easement should plead and prove the same. It has been held by the Hon’ble Supreme Court in the case of Justiniano Antao (supra) that there should be specific pleading and categorical evidence in this regard. When it is said that there must be specific pleading, it doesn’t mean that it must be in conformity with the language of the section, enough if the substance of the requirement is pleaded. The Hon’ble Supreme Court in the case of Ram Narain Arora vs. Asha Rani and others

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[(1999)1 SCC 141], has observed as below :

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“There cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. If the pleadings are clearly set out, it would be easy for the court to decide the matter. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the court, neither party is prejudiced. Analysis from this angle the High Court was justified in interfering with the order made by the Rent Controller.”

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So, the above principle makes it clear that what is required in the pleading is substance of the requirement. If nothing can be made out from the plaint, then the question of maintainability of the suit for exercising right of easement can be raised.

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Here, in this case, the plaintiffs state about partition having taken place long ago during the lifetime of his forefathers. The plaintiffs and the defendants belong to the same family. It is also their case that for more than 60 years and since the time of partition, the passage said to be in existence in the property belonging to the defendants is being used by them for having access to the public road. Since in the plaint, it is stated that the plaintiffs are using right of easement over the passage by necessity and

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prescription, the learned counsel for the defendants – respondents has argued that the plaint does not disclose the necessary particulars to be pleaded for exercising right of easement and that the plaintiffs cannot claim both types of easement simultaneously. But the trial Court has held that the plaintiffs could exercise only right of easement by necessity. As has been observed by the Hon’ble Supreme Court in the case of Ram Narain Arora (supra), the defendants know very well the type of easement that the plaintiffs are asserting and it is right of easement by necessity only. Mere making a mention of the word ‘prescription’ does not bring the suit within the periphery of easement by prescription. Therefore, the argument of the learned counsel for the defendants – respondents cannot be accepted to hold that the suit is not maintainable. Accordingly, this point is answered.

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Regarding substantial question of law raised by this Court on 18.01.2008 :

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The trial Court has held that the plaintiffs have proved easement by necessity. The trial Judge has given this finding only on the basis of the oral evidence of the

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witnesses. The learned Judge of the First Appellate Court has upset the findings of the trial Court solely on the ground that documentary proof in regard to exercise of right of easement by the plaintiffs is not available. This observation of the First Appellate Court is unfounded. If oral evidence is found to be trustworthy, it can be acted upon. Sometimes because of the nature of transaction, documentary proof is not available and in such a situation oral evidence alone has to be evaluated. Here in this case the plaintiffs have pleaded about partition having taken place between Malleshappa’s grandfather and the defendants’ great grandfather. The defendants do not specifically deny this partition, what is found in the written statement is bare denial, which has no value. P.W.1 has given evidence that his great grandfather and the defendants’ great grandfather were brothers and that the plaintiffs succeeded to the property No.528 and 466, which was allotted to his great grandfather in the partition. Likewise, he states that property No.529 belonged to the defendants’ great grandfather and that the defendants succeeded to that property. Even when he was examined in chief on 12.02.2002, he speaks about these properties being earlier possessed by the joint family and about partition that

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took place between his forefathers. This part of evidence of P.W.1 has stood undiscredited by the defendants. The trial Judge has also observed that even in respect of counter claim setup by the defendants only oral evidence is available. If, for this reason the trial Court held that the oral evidence was believable, the First Appellate Court acted perversely in giving a contrary finding.

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Added to this, D.W.1 while being cross-examined admits that his forefathers and the forefathers of the plaintiffs were living together. He has also admitted that the plaintiffs have drawn electricity line and laid water pipes in the said passage. He has also stated in the crossexamination that he had given a complaint against the plaintiffs and upon that complaint a criminal trial was held in the Court of J.M.F.C., Dharwad. He gave evidence in that case as a witness. To a specific question when he was crossexamined in the c riminal case, he gave an admission that the plaintiffs were making use of the passage i.e., the suit property. The trial Judge has clearly noticed this admission of D.W.1, but the First Appellate Court has observed that the evidence given in a criminal proceeding cannot be made use

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of in a civil proceeding. This finding of the First Appellate Court is contrary to the principles of appreciation of evidence. According to Section 18 of the Indian Evidence Act, admission made by a party in a judicial proceeding is relevant. It was a statement made by him on oath and it binds him. So, the First Appellate Court should have appreciated the evidence in this manner.

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The defendants have pleaded and asserted that an alternative way is available to the plaintiffs. But as can be made out from the sketch, the way or the passage that available alternatively does not provide access to public road from the main entrance of the plaintiffs house. Rather the alternative way reaches the backyard of plaintiffs’ house, which cannot be therefore called alternative way.

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Therefore, in these circumstances, the First Appellate Court should have confirmed the judgment of the trial Court. His conclusions are unfounded in law and do not stand to any reason; it is unjustifiable. Hence, this point is answered in negative.

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Since point No.2 is answered in negative, this appeal deserves to be allowed. Therefore, the judgment of the First Appellate Court is set aside and the judgment of the trial Court insofar it relates to plaintiffs’ easementary right is restored. There is no order as to costs.

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Sd/JUDGE

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hnm/yan

Sri Rudrappa S/O Mahadevappa @ Mallappa Astagi v. Sri Mahadevappa S/O Tavanappa Astagi

Case brief

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Sri Rudrappa S/O Mahadevappa @ Mallappa Astagi v. Sri Mahadevappa S/O Tavanappa Astagi

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