Dismissed

Sri.Chandar @ Chendrakant S/O Laxman Kengare v. Sri.Arun Vithoba Metakude

Karnataka HC3 Jul 2024RSA/100336/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a second appeal challenging the dismissal of a suit for declaration and injunction regarding a road easement of necessity, holding that an alternative access route existed, negating the necessity for the claimed easement.

What did the court decide?

The appeal was dismissed as devoid of merit at the stage of admission, leaving the lower courts' decree of dismissal intact.

Sri.Chandar @ Chendrakant S/O Laxman Kengare Vs… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:9531 RSA No. 100336 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3^RD DAY OF JULY, 2024 BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR SECOND APPEAL NO. 100336 OF 2018 (DEC/INJ-)

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BETWEEN:

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SRI CHANDAR @ CHENDRAKANT S/O LAXMAN KENGARE AGE: 43 YEARS, OCC: AGRICULTURE, R/O: MANGSULI, TQ: ATHANI, DIST: BELAGAVI.

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…APPELLANT

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(BY SRI M.C.HUKKERI, ADVOCATE)

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AND:

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SRI.ARUN VITHOBA METAKUDE AGE: 46 YEARS, OCC: AGRICULTURE, R/O: MANGSULI, TQ: ATHANI, DIST: BELAGAVI-591234.

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SMT. SHAMALA W/O ARUN METAKUDE AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: MANGSULI, TQ: ATHANI, DIST: BELAGAVI-591234.

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Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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SRI. BANDURAO S/O SHANKAR METAKUDE @ PATIL, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: MANGSULI, TQ: ATHANI, DIST: BELAGAVI-591234.

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(BY SRI SANJAY S. KATAGERI, ADVOCATE FOR R-3; R1 AND R2 SERVED)

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…RESPONDENTS

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THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE PRL. SENIOR CIVIL JUDGE, ATHANI IN R.A.NO.45/2017 DATED 08.03.2018 AND THE JUDGMENT AND DECREE PASSED IN O.S.NO.1169/2015 PASSED BY THE III ADDITIONAL CIVIL JUDGE AND JMFC, ATHANI DATED 14.08.2017 AND DECREED THE SUIT IN ITS ENTIRETY.

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NC: 2024:KHC-D:9531 RSA No. 100336 of 2018

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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 present second appeal is filed under Section 100 of Code of Civil Procedure, 1908¹ by the plaintiff challenging the judgement and decree dated 08.03.2018 passed in RA No.45/2017 by the Court of the Principal Senior Civil Judge, Athani² and the judgement and decree dated 14.08.2017 passed in OS No.1169/2015 by the Court of the III Additional Civil Judge and JMFC, Athani³ , whereunder the suit for declaration that plaintiff has right to use KL road of the plaint hand sketch by way of easement of necessity as well as for relief of permanent injunction to restrain the defendant from using the said road has been dismissed by the Trial Court with cost which has been affirmed by the First Appellate Court.

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The parties herein are referred to as per their

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ranking before the Trial Court for the sake of convenience.

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘First Appellate Court’

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3 Hereinafter referred to as the ‘Trial Court’

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It is the case of the plaintiff that he is the owner

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in possession and enjoyment of the property shown as ABCD in the plaint sketch measuring 2 gunthas and the defendant No.3 is the owner in possession and enjoyment of the property shown as EFGH measuring 10 guntas 12 anas in the said sketch. It is further the case of the plaintiff that the road marked as IJ in the plaint sketch is the Athani – Kagawad road and the plaintiff is approaching his land from the said Athani – Kagawad road which is marked as KL in the plaint hand sketch which runs through the property of the defendant No.3. It is the further case

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of the plaintiff that the defendant No.3 has purchased his land shown as EFGH from defendant Nos.1 and 2.

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That the dispute between the plaintiff erstwhile owners of EFGH portion and the defendant Nos.1 and 2 with respect to plaintiff’s land measuring 2 guntas which was a subject matter of a suit in OS No.841/2009 ended in compromise decree dated 29.06.2009. That in the said compromise decree, defendant Nos.1 and 2 admitted that

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the plaintiff’s right to use KL road to approach their land shown as ABCD by way of easement of necessity. Thereafter, the defendant Nos.1 and 2 have sold their property to defendant No.3. That the dispute between the plaintiff and defendant Nos.1 to 3 and with four others which was a subject matter of OS No.171/2014 which ended in a compromise decree dated 10.03.2014 and in the said decree, the title and ownership of the plaintiff over his ABCD portion had been affirmed. That the defendant No.3 taking advantage of the said compromise decree, as there was no mention of the road marked as KL, started to interfere in the plaintiff’s right to use the said road to approach his land shown as ABCD. Hence, the plaintiff has filed a suit for declaration and permanent injunction.

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5. The defendant Nos.1 to 3 entered appearance

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and filed their written statement. The defendant Nos.1 and 2 in their written statement have categorically denied the existence of 10 feet wide KL road to approach the

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plaintiff’s land from the Athani – Kagawad road. It is further denied that in the compromise recorded in OS No.841/2009, the existence of KL road is mentioned and the plaintiffs right to use the KL road is by virtue of an easement of necessity. It is the specific contention of the defendant Nos.1 and 2 that the plaintiff has access to the main road through the Faridhkanawadi- Mangasuli road situated on the eastern side of their land. It is further contended that the other owners of the property are also using the Faridhkanawadi- Mangasuli road situated on the eastern side of their lands to approach the main road. Hence, the defendant Nos.1 and 2 sought for dismissal of the suit.

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Defendant No.3 filed a written statement

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denying the plaint averments and contended that there is no 10 feet vide KL road as alleged by the plaintiff which connects the ABCD land of the plaintiff from Athani – Kagawad road. It is further contended that OS No.841/2009 did not provide for any KL road as alleged by

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the plaintiff by way of easement of necessity. That the defendant No.3 has purchased RS No.307/10B measuring 17 guntas from defendant Nos.1 and 2 through a registered Sale Deed dated 18.09.2013 and has become the absolute owner of the suit property. It is specifically contended that he is not a party in OS No.841/2009 and

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as such the same is not binding on him. It is further contended that the compromise decree in OS No.171/2014 is not with respect to any easementary right with respect to plaintiff’s land. It is categorically contended by the defendant No.3 that the plaintiff has access to the old Faridhkanawadi- Mangasuli road situated adjacent to the property of the plaintiff on the eastern side. That the fact regarding the existence of Faridhkanawadi- Mangasuli road has been suppressed by the plaintiff and hence, the said defendant sought for dismissal of the suit.

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The Trial Court consequent to the pleadings of

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the parties framed the following issues:

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1. Whether the plaintiff proves that he has acquired easementary right to use the suit property passage?

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2. Whether the plaintiff further proves that, the defendants are interfering with the right of plaintiff to make enjoyment of the suit property passage?

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3. Whether the plaintiff is entitled for the relief sought for?

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4. What order or decree?

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8. The plaintiff examined himself as PW.1 and

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marked Ex.P.1 to Ex.P.4. A witness has been marked as

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PW.2. Defendant No.3 examined himself as DW.1 and

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Ex.D.1 to Ex.D.32 have been marked in evidence. The Trial Court vide its judgement and decree dated 14.08.2017 dismissed the suit with cost.

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Being aggrieved the plaintiff preferred RA No.45/2017. The defendants entered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:

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1.Whether the Appellant/plaintiff proves that there is necessity of interference into the Judgment and Decree passed by the Trial Court?

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2. Whether the Appellant/plaintiff proves whatever the grounds urged in the Appeal Memo?

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3. What order or Decree?

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Vide its judgement and decree dated 08.03.2018 the First Appellate Court dismissed the appeal filed by the plaintiff and confirmed the judgement and decree passed by the Trial Court. Being aggrieved, the plaintiff has preferred the present second appeal.

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Learned counsel Sri.M.C.Hukkeri appearing for the appellant/ plaintiff vehemently contended that the plaintiff has filed an application in I.A No.2 under order 26 Rule 9 of the CPC before the Trial Court for appointment of the Court Commissioner and the defendant No.3 has filed his detailed objections to the said application. It is further contended that the consideration of I.A No.2 was deferred by the Trial Court to be decided after completion of evidence. Thereafter, no orders have been passed on the

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said application. Hence, he contends that the judgement of the Trial Court is erroneous. It is he further contended that the compromise entered into in OS Nos.841/2009 and 171/2014, clearly supports the case of the plaintiff and hence, both the Courts have erred in dismissing the suit. Hence, he seeks for allowing of the present appeal and granting of the reliefs sought for.

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Per contra, learned counsel Sri. Sanjay S. Katageri contended that both the Courts have rightly appreciated the oral and documentary evidence on record and concurrently recorded findings of fact and the same is not liable to be interfered with by this Court. He further contends that PW.1 has admitted regarding the existence of the Faridhkanawadi - Mangasuli road on the eastern boundary of his property and hence, the plaintiff has failed to demonstrate that the relief of declaration as an easement of necessity is required to be granted. He further refers to the photographs produced, as Ex.D.2 to Ex.D.16 as well as the certified copy of the compromise

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petition marked as Ex.D.24 as also the hand sketch produced along with the plaint and the written statement respectively and submits that the hand sketch produced along with the written statement clearly denotes the Faridhkanawadi- Mangasuli road, whereas in the hand sketch produced along with the plaint, the same has not been shown. Hence, he seeks for dismissal of the above appeal.

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The submissions of both the learned counsels have been considered, and the material on record, including the records of the Trial Court and the First Appellate Court have been perused.

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Before considering the contentions put forth by both the learned counsels it is relevant to note the findings recorded by the Trial Court and the First Appellate Court.

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The Trial Court, while answering the issues framed by it, has noticed that PW.1 in his crossexamination has admitted regarding the existence of an

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alternative road i.e., the Faridkhanwadi - Mangasuli road as per the hand sketch annexed to the compromise petition in OS No.171/2014. That the PW.1 has admitted regarding the existence of Athani – Kagwad tar road as well as the existence of Mangasuli - Faridkhanwadi road on the eastern side of the suit property. The Trial Court has further noticed the photographs marked as Ex.D.2 to Ex.D.16 and the hand sketch produced along with the compromise petition. It has been further noticed that PW.2 has also admitted that the road shown in Ex.D.11 to Ex.D.16 pertains to the Faridkhanwadi - Mangasuli road and further admitted that the plaintiff as well as his neighbours Kutubuddin Nadaf and Tukaram are using the Faridkhanwadi - Mangasuli road to access their lands. The Trial Court has further examined the compromise petition and recorded a finding that the compromise in OS No.171/2014 is only with respect to the title of the plaintiff and compromise in OS No.841/2009 is not binding on the plaintiff. Hence, the Trial Court, upon a detailed appreciation of the oral and documentary evidence on

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record as well as after noticing the legal position has dismissed the suit.

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The First Appellate Court, while answering the points for consideration, has noticed that the plaintiff has not produced a single document to show that this land is accessible only through KL road as shown in the hand sketch and that he does not have any alternative approach to his property. It has been further noticed that the plaintiff has merely claimed the easement by way of necessity and not sought relief of easement by way of necessity and hence, it has been held that the plaintiff has not pleaded regarding a continuous possession and enjoyment of the KL road. That there is no pleading that except the KL road, the plaintiff is not at all having any alternative way or road to approach his landed property. Hence, the First Appellate Court has recorded a finding that having regard to the admission of PW.1 that he has an alternative way to approach his landed property, the question of granting the relief of permanent injunction in

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respect of access by way of easement of necessity will not arise.

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The First Appellate Court has further noticed the admissions of PW.2 in his cross-examination, and held that PW.2 did not have any personal knowledge regarding the KL road. It has been further noticed that in the compromise recorded in OS No.171/2014, there is no mention regarding the road as KL. The First Appellate Court upon a detailed re-appreciation of the oral and documentary evidence on record, has dismissed the appeal filed by the plaintiff.

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It is forthcoming from the hand sketch produced along with the plaint that the plaintiff has only shown the access to his property marked as ABCD through a road marked as KL which is located in the property of defendant No.3, which is marked as EFGH and the said KL road joins the Athani – Kagawad road. However, in the hand sketch produced along with the document, it has been shown that on the eastern side of the property of the

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plaintiff, there is a Faridkhanwadi - Mangasuli road that joins the Athani - Kagawad road which is the means of access for the plaintiff to his property. It is further noticed that the neighbours of the plaintiff i.e., Kutubuddin Nadaf and Tukaram are also using Faridkhanwadi - Mangasuli road to access their respective properties.

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It is forthcoming from the photographs that are produced as Ex.D.2 to Ex.D.16 that there is a tar road along the southern side of the plaintiff’s property which joins the main road i.e., Athani – Kagawad road. The photographs at Ex.D.5, 6, 7, 8, 9, 11 to 16 clearly shows the existence of the said Faridkhanwadi - Mangasuli road and it has been noticed by the First Appellate Court that PW.1 has admitted that the road shown in Ex.D.11 to Ex.D.16 is pertaining to Faridkhanwadi - Mangasuli road.

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It is forth coming from the compromise entered into in O.S.No.841/2009 (Ex.20) that the defendant No.3 was not a party to the OS No.841/2009. Hence, the compromise entered in the said suit is not binding on the

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said defendant. Ex.D.24 to Ex.D.26 are the certified copies of compromise petition, compromise decree and certified copy of order sheet in OS No.171/2014. Ex.D.29 is the 11E sketch with respect to RS No.307/10B of Mangasuli Village. The compromise clearly shows the property of the defendant No.3 and plaintiff, as well as the neighbours of the plaintiff. It is forthcoming that the same is with regard to the title of the said parties and there is no mention of the road denoted as KL in the hand sketch produced by the plaintiff.

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It is further relevant to note that the plaintiff has claimed access through the road marked as KL, which is situated in the property of the defendant No.3 as an easement of necessity. However, the plaintiff has not pleaded in the plaint that, apart from the existence of the said KL road, there are no other means of access to his property. It is forthcoming that there is a means of access to the property of the plaintiff through the Faridkhanwadi - Mangasuli road, which is situated on the southern side, of

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the property of the plaintiff. Hence, the question of granting any relief to the plaintiff on the basis that the road denoted as KL as an easement of necessity does not arise.

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It is forthcoming from the aforementioned that both the Courts have recorded concurrent findings of fact that the means of access for the plaintiff to his property is through the Faridkhanwadi - Mangasuli road and that the plaintiff has failed to demonstrate that the road denoted as KL in respect of which a declaration as easement of necessity is sought, is not the only road for the access of the property of the plaintiff.

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The contention of the learned counsel for the plaintiff that that the Trial Court, not having ordered upon the application filed under Order 26 Rule 9 of CPC, hence the said judgement of the Trial Court is erroneous, is liable to be rejected as the said ground has not been urged before the First Appellate Court. In the absence of a plea by the defendant of the said ground before the First

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Appellate Court, the question of considering the said contention in the present Second Appeal does not arise.

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The contention of the appellant that a Commissioner is required to be appointed for inspection of the property is also liable to be rejected as the Trail Court, upon appreciation of the oral and documentary evidence has recorded a finding regarding the availability of the road access to the property of the plaintiff. Hence, there is no requirement for a Commissioner to visit the spot and submit a report for the purpose of adjudicating the issues that arises for consideration.

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Having regard to the aforementioned, the appellants have failed in demonstrating that the concurrent findings recorded by the Trial Court and First Appellate Court as noticed above are in any manner erroneous as having been recorded without considering any specific oral or documentary evidence on record. The appellants have failed in demonstrating that any substantial question of law arise for consideration in the

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present appeal. Hence, the above appeal is dismissed as

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being devoid of merit at the stage of admission itself.

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Sd/JUDGE

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PJ CT:GSM List No.: 1 Sl No.: 33

Sri.Chandar @ Chendrakant S/O Laxman Kengare v. Sri.Arun Vithoba Metakude

Case brief

What is this about?

What did the court decide?

Sri.Chandar @ Chendrakant S/O Laxman Kengare v. Sri.Arun Vithoba Metakude

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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