Dismissed

Sri a Gnanamurthy v. Sri Nanjundappa

Karnataka HC14 Jun 2024RFA/1272/2009

Case brief

AI extract

What is this about?

Plaintiff sued to declare a 25-foot strip adjoining his property a public road and sought injunction against defendants' development, claiming easement rights. Trial court dismissed the suit. The appellate court found no cogent evidence of public use or prescriptive or necessity-based easement and dismissed the appeal.

What did the court decide?

None; appeal dismissed without costs and trial court decree dismissing the suit confirmed.

Sri a Gnanamurthy Vs Sri Nanjundappa — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:21454 RFA No. 1272 of 2009

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 1272 OF 2009 (DEC/INJ)

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BETWEEN:

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SRI A GNANAMURTHY, AGED ABOUT 62 YEARS, S/O LATE ANNAYAPPA, NO.99/1, BRUNDAVANLAYOUT, CHIKKALLASANDRA, KNOWN AS 15^TH MAIN, PADMANABHANAGAR, BANGALORE-61.

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...APPELLANT

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(BY SRI D PRABHAKAR, ADVOCATE)

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AND:

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SRI NANJUNDAPPA,

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SINCE DEAD REPRESENTED BY HIS LRS

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Digitally signed by NANDINI R Location: High Court of Karnataka

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(a) SRI RAJASHEKAR, S/O LATE NANJUNDAPPA, AGED ABOUT 50 YEARS.

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(B) SRI NAGESH, S/O LATE NANJUNDAPPA, AGED ABOUT 50 YEARS.

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BOTH R/AT NO.25, 7^TH BLOCK WEST, YEDIYUR POST OFFICE ROAD, JAYANAGAR, BANGALORE-560 082.

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NC: 2024:KHC:21454 RFA No. 1272 of 2009

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RESIDING OPP. RAJASHEKAR TENT, BRINDAVAN LAYOUT, SUBRAMANYAPURA POST, BANGALORE-560 061.

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M/S LAKSHMI PROPERTIES, NO.35, 3^RD FLOOR, ANNAPURNA COMPLEX, SOUTH END ROAD, BASAVANAGUDI, BANGALORE-4. REPRESENTED BY ITS PARTNERS.

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…RESPONDENTS

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(BY SRI A SRINIVAS, ADVOCATE FOR C/R2; SRI R BHADRINATH, ADVOCATE FOR R1(a TO c))

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THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.09.2009 PASSED IN O.S.NO.2828/2007 ON THE FILE OF THE XXIV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE(C.C.H.NO.6), DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 21.03.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal filed by the plaintiff/appellant is directed

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against the judgment of dismissal in O.S.No.2828/2007 dated 14-09-2009 by the learned XXIV Additional City Civil

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and Sessions Judge, Bangalore, (CCH No.6).

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The parties would be referred to as per their

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ranks before the trial Court for the sake of convenience.

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NC: 2024:KHC:21454 RFA No. 1272 of 2009

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The brief facts that are necessary for the

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purpose of this appeal are as below:

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The plaint describes the suit schedule 'A' and 'B' properties as below:

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SCHEDULE 'A' PROPERTY BELONGS TO PLAINTIFF

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All that part and parcel of the property bearing Khaneshumari No.99, V.P. Khatha No.108/2, situated at Chikkalasandra Village, Uttarahalli Hobli, Bangalore South Taluk, presently 15^th Main Road, Padmanabhanagar, Ward No.55, measuring East to West 75 feet and North to South 60 feet and bounded on:

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East by: Property of Shilpa Silk Printers, West by: Property of N.Nanjundappa, North by: Remaining property of Krishnappa and Sri A Gnanamurthy (the plaintiff herein), South by: 25 Feet Road.

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SCHEDULE 'B' PROPERTY (ROAD)

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The 25 feet wide Cross Road running from East to West situated towards the southern side of the Schedule 'A' Property and connecting 18^th Main Road and 15^th Main Road, Padmanabhanagar, Bangalore and bounded on the:

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East by: 15^th Main Road, Padmanabhanagar, West by: 18^th Main Road, Padmanabhanagar, North by: Property of the plaintiff (Schedule 'A' Property) and others South by: Property of the 1^st defendant.

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5. The plaintiff along with one V. Krishnappa had

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purchased the suit schedule 'A' property under the registered sale deed dated 03-03-1982 from its owner. Subsequently, the said joint owner V. Krishnappa released

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his undivided half share in the suit schedule 'A' property in favour of the plaintiff by receiving valuable consideration and executed a Release Deed dated 01-02-1988. Thus, the plaintiff is the absolute owner of ‘A' schedule property and

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he had acquired the rear portion of the suit schedule property and is residing in the same. It is contended that the plaintiff also obtained license from Village Panchayat and constructed a factory shed and obtained electricity power from BESCOM. Subsequent to the property being amalgamated within the limits of Bangalore Mahanagara

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Palike, his name is entered in respect of the katha and he has paid the betterment charges to BMP and is exercising

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all the rights of ownership and possession without any disturbance of from any quarter.

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It is contended that defendant No.1 is the owner

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of the adjacent property towards southern side after 25 feet road. He was running a Cinema Tent in the name and style of 'Rajashekara Chitra Mandira' on his property. Later, defendant No.1 entered into a development agreement with defendant No.2. It is contended that in view of the said understanding defendant No.2 is trying to encroach and fence the entire stretch of the road which is

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on the southern side of the property of the plaintiff and

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the said road is the only road for the plaintiff for his ingress and egress to the property owned by him i.e., 'A' schedule property. It is contended that the said road is in existence ever since from the date of purchase of the property by the plaintiff in the year 1982 and it is being used by the public and in particular the plaintiff and the said road is only access available to the plaintiff to approach his 'A' schedule property. The defendants are

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strangers to the 'A' schedule property and defendant No.1 himself formed the Layout in the year 1981 and has sold the same to various purchasers. Defendant No.1 has earmarked the road on the southern side of the 'A' schedule property of the plaintiff running East to West connecting 18^th Main road and 15^th Main road of Padmanabhanagar. The plaintiff avers in the plaint that road formed on the southern side of 'A' property has a width of 25 feet and is a public road and except the said 25 feet road, the plaintiff has no other way to access his property either from 15^th Main Road or from 18^th Main Road. Defendant No.2 in the process of developing the property belonging to defendant No.1 is trying to encroach upon 25 feet wide road for their wrongful benefit and thereby defeat and deprive the usage of 25 feet cross road by the plaintiff and the general public.

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It is contended that on 28-3-2007, defendant No.2 had made attempts to dig the said road which is described as 'B' schedule property for the purpose of

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laying foundation for pillars and the plaintiff objected for the same and as such, there was no other option for the plaintiff, except to file the present suit. The complaint filed by the plaintiff to the BMP authorities went in vain and as such, he filed the suit. Therefore, the plaintiff prayed to pass a decree in the following terms:

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a) Declare that the Schedule 'B' Property is a public road and the plaintiff has easement right of access for ingress and egress to and from the Schedule 'A' Property to the main road by passing through the Schedule 'B' Road;

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b) Grant Permanent Injunction, restraining the defendants, their henchmen, agents, representatives or anybody acting on their behalf from encroaching or meddling with the Schedule 'B' Property by digging the land, laying foundation for the pillars or putting up compound wall or any other structures in any manner;

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On appearance, defendant No.1 filed the written

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statement contending that the plaintiff herein had purchased two plots from defendant No.1 on 11-02-1982 and on 03-03-1982 respectively. The sale deed dated 11-02-1982 though disclose that there is a 25 feet road on

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the southern side of the property, but subsequently the plaintiff had purchased another plot from defendant No.1 on 03-03-1982 and in that sale deed, towards northern side, defendant No.1 has retained about 30 feet x 150 feet property which is leading up to the Main Road and after registration of the said property, the plaintiff approached defendant No.1 and requested to allow him to make use of the said property measuring 30 feet x 150 feet and he has occupied the entire property measuring 30 feet x 150 feet towards the northern side of the property purchased by him. Therefore, it was contended that the plaintiff has occupied the said portion of his property.

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It was further contended that towards southern

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side of the plot sold by defendant No.1 to plaintiff on 11-02-1982, he was running a Cinema Theater and at the time of selling the property, defendant No.1 had thought that the plaintiff may transfer the cinema theater, but the plaintiff in the year 1982 requested defendant No.1 to allow him to make use of the said 30 feet x 150 feet

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property towards the northern side and as per his request, plaintiff clubbed both the plots and shifted the entire property from the northern end and from that end he has taken 120 feet x 75 feet and from that property and there is an access road and from the date of purchase he has been using the said road. It was contended that in the beginning the plaintiff was not using the said road situated on the northern side but was trying to claim the suit schedule 'B' property to be the road. It is contended that from the compound of the plaintiff, defendant No.1 has constructed the Cinema Theater and the entire vacant area has been used for the purpose of parking the vehicles on the southern side and that too at the end of the plaintiff's property. Therefore, it was contended that there is no such road as described in schedule 'B' over which the

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plaintiff has any sort of right, title or interest in whatsoever manner. There is no such road in existence and therefore, the question of seeking declaration as 'B' schedule property as road does not arise. It was admitted by defendant No.1 that he has entered into the joint

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development to defendant No.2-Lakshmi Properties for development of the property and he has invested his hard earned huge money and has obtained necessary clearances from the concerned departments and got the plan approved from the BMP for construction of apartments.

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It was contended that the property bearing Survey No.46/1, wherein the suit schedule 'A' and 'B' properties are situated was an agricultural land and there is no layout plan and as such, there was no such crossroad connecting 15^th Main Road and 18^th Main Road. The defendant has not at all formed any road as alleged by the plaintiff and therefore, for the purposes of the convenience, the plaintiff had been accessing his plot from the northern side of his property and as such, the contention of the plaintiff is not sustainable in law. It was contended that there is no such existence of road on the southern side of the plaintiff's property as alleged by the plaintiff, but the plaintiff is trying to take advantage of the

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fact that in the sale deed dated 11-02-1982, it is mentioned as '25 feet road' is situated on the southern side; but the sale deed in respect of the another plot that is dated 03-03-1982 shows that there is road on the northern side and as such, there is no necessity of easement that could be claimed by the plaintiff. In fact, the plaintiff had purchased the property from defendant No.1 with an understanding that he will not claim any right over the southern side of the 'A' schedule property and the plaintiff was aware about the non- existence of any road on the southern side. Therefore, defendant No.1 has denied the claim of the plaintiff over the suit schedule 'B' property and denied that any sort of easementary right is available for the plaintiff in the same.

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Defendant No.2 also filed its written statement reiterating the contentions made by defendant No.1 and admitted that he had entered into an agreement for joint development with defendant No.1.

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Based on the above pleadings, the following issues were framed by the trial Court:

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Whether the plaintiff proves that the schedule 'B' property is a public road and the plaintiff has easementary right for ingress and egress to and form schedule A property?

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Whether the plaintiff proves that he has acquired easementary right by any of the modes for acquiring easementary rights?

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Whether the plaintiff is entitled for the permanent injunction as sought?

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What order or decree?

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Plaintiff entered the witness box and has

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deposed as PW1 and Exhibits P1 to P24 were marked on his behalf. Defendant No.1 entered the witness box and deposed as DW1 and Exhibits D1 and D2 were marked on his behalf.

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After hearing the arguments, the trial Court answered issue Nos. 1 to 3 in the negative and proceeded to dismiss the suit by impugned judgment.

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Being aggrieved by the dismissal of the suit, the plaintiff has approached this Court in appeal.

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On issuance of notice, respondents/defendants have appeared before this Court through their counsel. During the pendency of this appeal, respondent No.1/defendant No.1 died, and his legal representatives were brought on record.

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On the appeal being admitted, the trial Court records have been secured. The arguments by learned counsel appearing for the appellant and learned counsel for the respondents were heard.

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The learned counsel appearing for the appellant submits that in the sale deed at Ex.P1 executed by defendant No.1 in favour of the plaintiff as well as in the relinquishment deed executed by V. Krishnappa, at Ex.P2, the boundary shown on the southern side of the property purchased is described as ' 25 feet road'. He submits that the said road running East-West was connecting 18^th Main

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Road and 15^th Main Road and was used by the public. Now the defendant No.1 is illegally closing the said road to utilize the same for the Apartments constructed by him in the property situated on the southern side of the said road. He points out to the photographs which are at Exs.P12 to P14 and that the defendants have not denied para 8 of the plaint. He further points out that the alleged alternative road on the northern side is only a passage that could be used by motorcycles and therefore, it cannot be construed as motorable road. Therefore, the finding of

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the trial Court that there is an alternative road was not sustainable. He further submits that the plaintiff and other public had acquired the easementary rights by way of prescription and also that the plaintiff had acquired easement of necessity. Therefore, he contends that the impugned judgment is not sustainable in law. He further contends that when the plaintiff has sought to declare the suit schedule 'B' property as road, the Court ought not to have proceeded to give a finding on the easementary rights as the declaration would be not only to the use of

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the appellant but also to the public at large. Therefore, the trial Court fastening the burden on the plaintiff to prove the easementary right was uncalled for. The trial Court also erred in holding that the plaintiff could use the property belonging to his wife which is adjoining the schedule 'A' property, over which the plaintiff has no dominion. Hence, he has sought interference by this Court and to decree the suit as prayed for.

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Per contra, the learned counsel appearing for the respondents/defendants contend that though it was described in the sale deed at Ex.P1 that on the southern side of the property sold to the plaintiff, there is a 25 feet wide road, it cannot be construed to be a public road. It is submitted that the said road does not connect the 18^th Main Road and 15^th Main Road. It is submitted that when the Cinema tent was in existence on the southern side, the vehicles were being parked there and therefore, though it was described as road, in fact, it was exclusively belonging to the defendant No.1. It is pointed out that there is

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absolutely no evidence on record to show that it is a public road, and it was developed either by the Panchayat or BMP. It is submitted that the plaint averments, though do not make a claim for easementary rights, the prayer in the plaint shows that the plaintiff is claiming the easementary right. Therefore, the trial Court was justified in considering the claim of the easementary right and having found that there is no evidence regarding easement, negating the claim. It is submitted that the plaintiff has failed to prove either the easement of necessity or prescription. On the other hand, PW1 admits in the cross examination that it is not a public road. They further contend that the sale deed is of the year 1982 and the present suit is filed in the year 2007 when defendant No.2 started developing the property. It is submitted that the photographs produced also do not show that it was a public road, either developed by Panchayat or BMP. Hence, they have sought dismissal of the appeal.

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The points that arise for consideration in this

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appeal are:

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(i) Whether the plaintiff has showed that schedule 'B' property is a public road and he has easementary right of prescription or necessity over the said road for the ingress and egress to schedule 'A' property.

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(ii) Whether the impugned judgment is sustainable in law and facts?

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Re.Point Nos.1 and 2:

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The plaint nowhere admits that the suit schedule 'B' property i.e., the road claimed by the plaintiff was of the ownership of defendant No.1. But on the other hand, it states that it is a public road. The plaint squarely relies on Ex.P1 executed by defendant No.1 which describes that there is a 25 feet wide road on the southern side of the property purchased by the plaintiff measuring 75 feet East-West and 60 feet North-South. It is also relevant to note that the prayer made by the plaintiff is to declare his easementary rights over the schedule 'B' property. Evidently, the plaint does not make it clear as to whether the plaintiff is seeking easement of necessity or

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by way of prescriptive rights . What can be made out from the plaint is that the claim is for easement by way of prescription, by saying that it is a public road used by the general public as it connects 15^th Main Road and 18^th Main Road.

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PW1 in his cross-examination states that he and Krishnappa jointly purchased two sites measuring 60 feet x 75 feet each and on the eastern side of the site, the property of Shilpa Silk Printers is situated. He also admits that Shilpa Silk Printers was built on the property purchased by his wife Dhanalakshmi and the son of Krishnappa. Such a purchase was also in the year 1982. He also admits that except the property purchased by him and Krishnappa and his wife Dhanalakshmi and another, the entire property between 18^th Main Road and 15^th Main Road was owned by defendant No.1. In his crossexamination, he states as below:

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“xxx xxx xxx

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It is true to suggest that from 15^th main upto 18^th main the entire property was originally belonged

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to the defendant No.1. It is true to suggest that from 15^th Main to 18^th main even today the entire property belongs to the defendant No.1 except the above said 3 properties which was sold to us by the defendant No.1 in the year 1982. I do not know the exact measurement of the land situated between the 15^th main road to 18^th main road. It is true to suggest that except us all public are not demanding the suit schedule property as public road. Witness volunteers that only we are residing there and no other houses exists in the said locality therefore the question of public demanding the road never arises. In my site previously there was a factory now I constructed residential house. At present I am residing there…………..”.

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He further admits in the cross-examination dated 07-07-2009, that though he personally prepared Ex.P11 sketch, he cannot state where exactly the 'A' schedule property is situated and that he has lost memory. Then he further admits as below;

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“…………… It is true to suggest that before constructing the residential house I constructed industrial shed. The main entrance to my house is from the eastern side. It is false to suggest that towards the northern side beside Nalla exist road to

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reach my house. I possess Maruthi Car. I parked my Maruthi Car in a road which is situated beside by house. It is true to suggest that both my house and industrial shed was constructed in the year 1984. ……………”

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The above revelations made by PW1 in the cross-examination would disclose that there is no evidence

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to show that suit schedule 'B' property, the road was not in use as a public road prior to purchase of suit schedule 'A' property by the plaintiff. There is no evidence on record to show that suit schedule 'B' road was used by the public as a public road and now defendant Nos.1 and 2 are usurping the same. Evidently, the plaintiff had purchased 60 feet x 75 feet and Krishnappa had purchased similar extent which he later relinquished in favour of the plaintiff. On the eastern side of these sites, the property belonging to the wife of the plaintiff and another is situated. Plaintiff admits that there is a passage on the northern side and thereafter a Nala in the property of defendant No.1. But he contend that passage can be used for two wheelers only.

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The perusal of documents produced by the plaintiff would show that Ex.P3 to Ex.P10 are the documents showing the enjoyment of the property purchased by the plaintiff. They do not throw any light in respect of easementary rights or existence of the road as described in 'B' schedule property. Ex.P11 is the hand sketch map and Ex.P12 to Ex.P17 are the photographs. None of these documents show that schedule 'B' property, road was in existence for more than 20 years and any action was initiated by BMP for development of the same.

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Thus, the above evidence would clearly show that the claim of the plaintiff that there is a public road is not acceptable.

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The perusal of evidence of DW1, who is none else than defendant No.1 would show that there is nothing which would show that there exists a 25 feet width public road on the southern side of the property sold to the plaintiff or to his wife and the wife of Krishnappa. On the

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other hand, he states that he had left the said space for ingress and egress to the cinema theater.

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It is pertinent to note that the sale deed of the plaintiff at Ex.P1 does not recognize or grant any easementary right to the plaintiff. It only says that there exists a road. It even does not describe that it is a Public Road. Obviously, the use of the Road by the public is not proved by the plaintiff by cogent evidence; like the testimony of the public of the locality, Municipal records, development of the road etc. The testimony of PW.1 shows that the locality does not have any residential houses. Therefore, there is no acceptable evidence to show that the suit schedule property was used by the public for more than 20 years to prove the acquisition of prescriptive rights of easement.

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Coming to the easement of necessity, it is pertinent to note that the pleadings are lacking to establish that the plaintiff has no other way to approach his property and no such rights are created by the sale

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deed at Ex.P1. If schedule 'B' property, road is the only way to approach the property sold, it would have found place in the conveyance deed.

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The trial Court in para 15 discusses the easement. It extracts the six essential characteristics to claim easements which are as below:

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“1. There must be dominant and servient tenement. 2. An easement must accommodate the dominant tenement.

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The right of easement must be possessed for the beneficial enjoyment of the dominant tenement.

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Dominant and servient owners must be different persons.

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The right should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect f the servient tenement; and

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That something must be of a certain or well defined character and be capable of forming the subject matter of a grant.”

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The trial Court also observes that while claiming easement the plaintiff has not admitted that defendant

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No.1 is the owner of dominant heritage. On the other hand, the plaintiff denies the ownership of defendant No.1 and contends that it is a public road. It also observes that there is a clear admission that 'B' schedule property is used by him and his family members only and that the BMP has not taken the said road into its fold. It also observes that the plaintiff failed to establish that it is being used as a public road for more than 20 years. It also observes that, the plaintiff has an alternate way for ingress and egress to his property. Therefore, the trial Court concludes that the plaintiff failed to prove either the easement by way of prescription or necessity. When the plaintiff contended that he has constructed a house, he could have produced the building plan and other documents to show that he had claimed the suit schedule 'B' property as the approach road to his house. Therefore, the finding of the trial Court on issue Nos.1 and 2 cannot be interfered with.

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The trial Court while considering issue No.3

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holds that the plaintiff has failed to prove that he has any

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right in respect of schedule ‘B’ property and such right is not believable. The trial Court has also observed that though the plaintiff contended that he has acquired right of easement over the suit schedule ‘B’ property, he failed to establish the same by cogent evidence. It has been noticed that the documentary evidence which is produced by the plaintiff never discloses that the plaintiff had any right to use schedule ‘B’ property for ingress and egress to his house. Simply because a 25 feet wide road is shown to be situated on the southern side of the property purchased by the plaintiff, it cannot be concluded that the plaintiff had the right of easement to use the said road for his benefit. Obviously, the existence of the public road on the southern side of the schedule ‘A’ property has not been established. Evidently, the property belongs to defendant No.1 and when the plaintiff has stated that he has not kept any gate towards the schedule ‘B’ property, it goes to

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show that there is no such easementary right acquired by

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the plaintiff. The photographs coupled with the hand sketch map Ex.P1 do not show the same. However, PW1 has also distanced himself away from describing Ex.P11 by saying that he has lost the memory. Such evidence has been appreciated by the trial Court and it has rightly concluded that the plaintiff has failed to establish his case.

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For the aforesaid reasons, this Court does not find any reason to interfere with the judgment of the trial Court. It is settled principle of law that the Appellate Court cannot interfere with the views of trial Court simply because another proposition is possible. Appreciation of the evidence recorded by the trial Court cannot be said to be perverse or arbitrary. Hence, no ground is made out by the plaintiff/appellant to interfere in the impugned judgment. Therefore, point No.1 is answered in the negative and point No.2 is answered in the affirmative. Hence, the following:

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ORDER

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The appeal is dismissed. No orders as to

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costs.

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The judgment of the trial Court in OS No.2828/2007 dated 14-09-2009 is hereby

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confirmed.

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Sd/JUDGE

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tsn* List No.: 1 Sl No.: 2

Sri a Gnanamurthy v. Sri Nanjundappa

Case brief

What is this about?

What did the court decide?

Sri a Gnanamurthy v. Sri Nanjundappa

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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