Dismissed

Smt. Chinnamma v. the Chairman

Karnataka HC7 Nov 2023RSA/884/2016

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed the second appeal filed by unsuccessful plaintiffs challenging the concurrent dismissal of their suit for declaration of easementary right. The High Court held the appeal was devoid of merits as evidence failed to substantiate the location or existence of the rights claimed. No substantial question of law arose.

What did the court decide?

The second appeal is dismissed. Pending applications, if any, are also dismissed.

Smt. Chinnamma Vs the Chairman — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:39681 RSA No. 884 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.884 OF 2016 (DEC/INJ)

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BETWEEN:

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SMT.CHINNAMMA

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W/O LATE VENKATARAMANAPPA AGED ABOUT 75 YEARS

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SRI V.KRISHNAPPA S/O LATE VENKATARAMANAPPA AGED ABOUT 58 YEARS

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BOTH ARE R/AT NO.8 8TH 'B' CROSS 4TH MAIN ANNAYAPPA GARDEN NEW THIPPASANDRA BENGALURU - 560 075

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Digitally signed by ALBHAGYA Location: HIGH COURT OF KARNATAKA

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(BY SRI. LEELADHAR H P, ADVOCATE)

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AND:

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…APPELLANTS

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THE CHAIRMAN KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD AT NO.14/3, 1ST FLOOR RASTROTHANA PARISHATH BUILDING NRUPATHUNGA ROAD BENGALURU - 560 001

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PRESENTLY OFFICE AT THE CHAIRMAN KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD KHANIJA BHAVAN RACE COURSE ROAD BENGALURU - 560 001

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THE CHIEF EXECUTIVE MEMBER KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD AT NO.14/3, 1ST FLOOR RASTROTHANA PARISHATH BUILDING NRUPATUNGA ROAD BENGALURU -560 001

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PRESENTLY OFFICE AT THE CHAIRMAN KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD KHANIJA BHAVAN RACE COURSE ROAD BENGALURU - 560 001

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…RESPONDENTS

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(BY SRI. ASHOK N NAYAK FOR R2 .,ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.07.2015 PASSED IN R.A NO.315/2012 ON THE FILE OF THE III ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, SIT AT ANEKAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.06.2012 PASSED IN O.S NO.751/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., ANEKAL AND ETC.

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NC: 2023:KHC:39681 RSA No. 884 of 2016

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by the unsuccessful plaintiffs, who have questioned concurrent findings of both Courts, wherein the plaintiffs suit seeking relief of declaration that they have easementary right either by way of necessity or by way of prescription to reach the suit schedule property through road No.5, is dismissed by both the Courts. The concurrent findings are under challenge at the instance of the plaintiffs.

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For the sake of brevity, the parties are

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referred as they are ranked before the Trial Court.

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The plaintiffs claimed that they are the owners

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of the land bearing Sy. No.253/8 measuring 18 guntas.

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The plaintiffs contend that defendants have acquired 2 acres 14 guntas out of 2 acres 33 guntas on 22.07.2006

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and after acquisition by the defendants, the plaintiffs have still retained 18 guntas of land. The plaintiffs have also

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specifically pleaded in the plaint that representation was submitted to defendant Nos.1 and 2 seeking de-notification and to provide a road to enable the plaintiffs to enjoy remaining 18 guntas of land retained by them. The present suit is filed by contending that except road No.5, the plaintiffs have no access to reach 18 guntas of land retained by them. It is alleged that defendants have formed industrial plots and same are allotted to different persons and this is causing obstruction for ingress and egress to the plaintiffs property. The plaintiffs

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have also alleged that defendants have put up a compound wall around the plots and therefore, the plaintiffs are denied access to reach the suit schedule property. The present suit is filed by contending that the defendants are bound to provide alternate road and hence,

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the present suit is filed seeking declaration that they have got easementary right either by way of necessity or by way of prescription.

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On receipt of summons, the defendants failed

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to contest the proceedings and they are placed exparte.

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The Trial Court having examined oral and documentary evidence adduced by the plaintiffs found that the location of the property retained by the plaintiffs is not properly described and no sketch is furnished along with the plaint. The Trial Court also found that there is a lot of ambiguity in regard to location of the suit schedule property measuring 18 guntas and an adverse inference is

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also drawn against the plaintiffs for having failed to furnish

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the sketch indicating location of the suit schedule property and the portion acquired by the defendants for formation of industrial plots. The Trial Court, inspite of there being no contest by the defendants, was not inclined to grant any relief to the plaintiffs. The Trial Court has proceeded to dismiss the suit.

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The plaintiffs feeling aggrieved by the

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judgment and decree of the Trial Court preferred an

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NC: 2023:KHC:39681 RSA No. 884 of 2016

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appeal before the Appellate Court. The Appellate Court being a final fact finding authority has re-assessed the entire materials on record independently. Referring to Ex.P.16, the Appellate Court found that plaintiffs claim that road No.5 is abutting to plot Nos.279 and 280 and the plaintiffs are entitled to reach road No.5 is not at all substantiated during trial. Referring to Ex.P.16, the Appellate Court on the contrary found that towards eastern side of plot Nos.279 and 280, road No.10 is located and not road No.5. Referring to Ex.P.19, the Appellate Court found that property retained by the plaintiffs is situated towards southern side of the acquired land and not on the eastern side as claimed by the plaintiffs. Referring to Exs.P.16 and 18, the Appellate Court was of the view that plaintiffs have failed to substantiate the exact location of 18 guntas of land retained by them. Therefore, the Appellate Court held that

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the plaintiffs have failed to substantiate that they have got easementary right over road No.5 abutting to plot Nos.279 and 280 to have access to the suit schedule property.

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There is a categorical finding recorded by the Appellate Court that existence of road No.5 abutting to Plot Nos.279 and 280 is not substantiated by the plaintiffs. Consequently, the appeal is dismissed.

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Heard learned counsel appearing for the plaintiffs and learned counsel appearing for the defendants.

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Before I advert to the reasons and conclusions

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recorded by the both Courts, I deem it fit to cull out the prayer sought in the plaint, which reads as under;

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"a) Declare that the plaintiff having an easementory right either easement of necessary or easement of prescription to reach the schedule property from road No.5 now through plot No.279 or plot No.280 and prepare a 20 feet road from road No.5 to reach the suit schedule property and allow the plaintiff to use the same.

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b) Grant permanent injunction restraining the defendants or anybody claiming

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under them either as allottee or as leaseholder to interfere from using the said road for their ingress and egress to the suit schedule property.

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c) Grant any other relief/relief's as the Hon'ble Court deems fit under the circumstances of the case including the cost of the suit in the ends of justice."

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On meticulous examination of the prayer sought in the plaint, this Court would not hesitate to hold that the

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plaint is found to be defective. There is absolutely no foundation laid in the plaint to demonstrate as to the nature of easementary right sought by the plaintiffs in the present suit. The plaintiffs admit that 2 acres 14 guntas is acquired by the defendants for industrial purpose. It is borne out from the records that defendants having formed industrial plots have already sold the plots to the third parties and the allottees are in exclusive possession of their respective plots. When an easementary right by way of prescription is claimed, the plaintiffs have to demonstrate

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right of easement without interruption for a period of 20 years and easement by way of necessity can be ascertained provided that there is clinching evidence indicating that in spite of acquisition by the defendants, there is an agreement between the parties reserving right of access to the plaintiffs. It is quite surprising to note that the plaintiffs have simultaneously claimed easementary right by way of necessity as well as prescription, which is evident from the prayer culled out supra.

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Both Courts referring to the evidence on record

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have recorded a categorical finding that the plaintiffs have failed to substantiate the exact location of the property retained by the plaintiffs. Both the Courts have concurrently held that the claim of the plaintiffs that road No.5 is abutting to plot Nos.279 and 280 and the plaintiffs are entitled to reach road No.5 is also not substantiated. The pleadings in the present suit are found wanting and there is a lot of vagueness and ambiguity in the plaint. No proper foundation is laid in the plaint either to demonstrate

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the plaintiffs entitlement of easementary right by way of necessity or by way of prescription. The evidence on record does not substantiate the plaintiffs’ right as claimed in the plaint. Both Courts were justified in dismissing the suit for want of legal evidence.

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On reading prayer in the plaint, what emerges is that plaintiffs are seeking a direction against the defendants Authority to form a road to give access to the plaintiffs suit schedule property and then, consequently permit the plaintiffs to use the said road. Such a relief cannot be granted. If plaintiffs, who have lost 2 acres 14 guntas on account of acquisition by the State, under the garb of easementary right, they cannot seek a direction against Karnataka Industrial Area Development Board to carve a road to the plaintiffs to have access to their suit schedule property.

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No substantial question of law arises for

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consideration.

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NC: 2023:KHC:39681 RSA No. 884 of 2016

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The second appeal is devoid of merits and

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accordingly, stands dismissed.

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Pending applications, if any, are also dismissed.

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Sd/JUDGE

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NBM

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List No.: 1 Sl No.: 10

Smt. Chinnamma v. the Chairman

Case brief

What is this about?

What did the court decide?

Smt. Chinnamma v. the Chairman

Case brief

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