Allowed

Shivashankareppa S/O Horiholiyappa v. Jayappa S/O Bairappa Killer

Karnataka HC15 Jul 2024RSA/2330/2007

Case brief

AI extract

What is this about?

Second appeal challenging a decree granting easementary right. High Court set aside the lower appellate decree, holding that the Trial Court correctly found the alleged passage to be a constructed building demolished by the plaintiff, not an open passage, and that the suit was mispleaded.

What did the court decide?

Judgment and decree of the First Appellate Court set aside; Trial Court judgment and decree affirmed.

Shivashankareppa S/O Horiholiyappa Vs Jayappa S/O… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:9854 RSA No. 2330 of 2007

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO. 2330 OF 2007 (DEC/INJ-)

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BETWEEN:

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SHIVASHANKAREPPA S/O HORIHOLIYAPPA MOGALISHETTAR SINCE DECEASED BY HIS LR’S

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SMT. GIRIJAMMA W/O SHIVAHANKAREPPA MOGALISHETTAR AGE: 72 YEARS, OCC: HOUSEHOLD, R/O MASUR, TQ: HIREKERUR, DIST: HAVERI.

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Digitally signed by SAROJA HANGARAKI

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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SMT. PUSHPA W/O SHIVANANDAPPA HAMPALI AGE: 60 YEARS, OCC: HOUSEHOLD, R/O HIREKERUR, TQ. HIREKERUR, DIST: HAVERI.

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RENUKESHWAR S/O SHIVASHANKAREPPA MOGAISHETTAR, AGE: 55 YEARS, OCC: PIGMY COLLECTOR, KVG BANK, R/O MASUR, TQ: HIREKERUR, DIST: HAVERI.

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JAGADISH S/O SHIVASHANKAREPPA MOGALISHETTAR AGE: 52 YEARS, OCC: AGRICULTURE, R/O MASUR, TQ: HIREKERUR, DIST: HAVERI.

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SMT. KUSUMA W/O MAHABALESHWAR ADDANAGI AGE: 48 YEARS, OCC: HOUSEHOLD,

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R/O TORANAGAL, TQ: HOSPET, DIST: BALLARY

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NIJALINGAPPA S/O SHIVASHANKAREPPA MOGALISHETTAR SINCE DECEASED BY HIS LRS

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6(A) SMT. PAVITRA W/O LATE NIJALINGAPP MOGALISHETTAR AGE: 40 YEARS, OCC: HOUSEHOLD, R/O MASUR, TQ: HIREKERUR, DIST: HAVERI.

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6(B) KUMARI. DHANUSHRI D/O LATE NIJALINGAPPA MOGALISHETTAR AGE: 7 YEARS, OCC: STUDENT R/O –DOSINCE MINOR REPRESENTED BY HER MOTHER GUARDIAN APPELLANT NO.6(A) SMT.PAVITRA W/O LATE NIJALINGAPPA MOGALISHETTAR

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…APPELLANTS

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(BY SRI P.G.MOGALI, ADVOCATE)

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AND:

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JAYAPPA S/O BAIRAPPA KILLER AGE: 53 YEARS, R/O MASUR, TQ: HIREKERUR, DIST: HAVERI.

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…RESPONDENT

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(BY SRI S.G.KADADAKATTI & LINGESH V. KATTIMANE, ADVOCATES)

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THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE (SR.DN) AND ITENERATE COURT, HEREKERUR IN R.A.NO.73/2005 DATED 20.07.2007 WITH COST THROUGHOUT.

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

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NC: 2024:KHC-D:9854 RSA No. 2330 of 2007

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JUDGMENT

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The present second appeal is filed under Section 100 of the Code of Civil Procedure, 1908¹ by the legal representatives of the deceased defendant challenging the judgment and decree dated 20.07.2007 passed in R.A.No.73/2005 by the Senior Civil Judge and Itinerate Court, Hirekerur² , whereunder the suit for declaration, injunction and grant of easementary right has been dismissed by the Trial Court and the appeal filed by the plaintiff before the First Appellate Court has been allowed and suit has been decreed.

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The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.

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It is the case of the plaintiff that the disputed property is part of VPC No.163 shown in the letter ‘ADIH’ in the hand sketch annexed to the plaint and the same measures east-west 9 feet towards southern side and 5

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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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feet towards northern side and north-south 104 feet. That the plaintiffs property bearing VPC No.163 demarcated as

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‘ABCD’ in the hand sketch consisting of a house, cattle shed and backyard and that the ‘ADIH’ is a common passage being used by the plaintiff since the time of his predecessors in title to go to their backyard and to take their cattle, etc. That the common passage is described as

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‘Moodaki Oni’. That the defendant is the owner of VPC No.162 demarcated as ‘GHIJ’ in the hand sketch to the plaint which consists of a house and backyard. That the VPC No.163 including the schedule property was purchased by the plaintiff’s brother Rajashekarappa from his vendor Veerabhadrappa Basappa Hanchinmani in the year 1979 by a registered sale deed.

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It is the further case of the plaintiff that VPC No.163 consists of two parts i.e., 163-A and 163-B. That VPC No.163-A measures 7-3/4 feet east-west and 104 feet from north-south. That VPC No.163-B measures 5- 3/4 feet east-west and 104 feet north-south. That since

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the said properties are belonging to the same person, the Panchayat Committee gave a single VPC number as 163 measuring 13-1/2 east-west and 104 feet north-south. That the property fell to the share of the plaintiff in the partition that took place in their erstwhile joint family.

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It is further contended by the plaintiff that the plaintiff’s brother had given up his rights in respect of the suit property in favour of the plaintiff and accordingly, the name of the plaintiff has been entered in the records.

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It is the further contention of the plaintiff that

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he is making common use of the suit property to reach his backyard, to carry his bullocks and to take his agricultural implements. That the schedule which is a common passage measures 9 feet in east-west towards southern side and 5 feet towards northern side and 104 feet in north-south. That the plaintiff’s brother was making use of the schedule property peacefully to reach his backyard and to carry his cattle and other agricultural implements, since the time of purchase in the year 1979.

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That the plaintiff was making use of the aforesaid common portion till today as on the date of the suit.

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It is further contended that VPC No.163-B has been sold to Channabasappa Basappa Hanchinmani by registered Sale Deed dated 02.02.1960. That in the registered sale deed, it is clearly recited that towards eastern side of the property sold, there is VPC No.163-A of Veerabhadrappa Hanchinmani and next to the said VPC No.163-A towards its eastern side, there is a passage and the vendor Gangadharapa had a right to make use of the said passage and the said right stood vested in the vendee i.e. Channabasappa Hanchinmani by means of said registered sale deed. Hence, it is contended that the plaintiff is entitled to make use of the suit property to reach his backyard. It is the further contention of the plaintiff that the defendant is a influential person and he intended to put up a building by encroaching the suit property despite not having any manner of right, title or

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interest. Hence, the suit for declaration and injunction was filed.

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The defendant entered appearance before the

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Trial Court and filed his written statement, wherein the defendant denied the case of the plaintiff. The defendant further denies the description of the suit property and the hand sketch map annexed along with the plaint. It is the contention of the defendant that the suit schedule property is not square in shape as disclosed by the plaintiff in the hand sketch map and it cannot be made used for egress and ingress. That there is a very narrow space left towards the northern side of the schedule property. The defendant denies the case of the plaintiff regarding bifurcation of property bearing VPC No.163 into 2 parts as VPC Nos.163/1A and 163/2A.

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It is the specifically denied that the plaintiff’s brother and presently the plaintiff are making use of the said passage to reach their backyard, to carry their cattle and to take hay-stack. It is further denied that the

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previous owners of VPC No.163/1A and 163/1B, left a passage for better enjoyment of the properties. The allegation of encroachment by building a zinc sheet house is also denied.

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Consequent to the pleadings of the parties, the Trial Court framed the following issues:

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i. “Whether the plaintiff proves that, the suit schedule property shown in letters ‘ADIH’ in plaint hand-sketch map, is common passage in between himself and defendant?

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ii. If so, whether the plaintiff further proves alleged obstructions in his enjoyment of the schedule property by defendant?

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iii. Whether the plaintiff is entitled to the declaratory and consequential reliefs as sought for, in the plaint?

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iv. To what decree or order?”

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The plaintiff examined himself as PW.1 and two

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witnesses as PW.2 and PW.3. Ex.P1 to Ex.P14 has been marked in evidence. The defendant examined himself as

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DW.1 and three witnesses as DW.2 to DW.4. Ex.D1 to

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Ex.D44 has been marked in evidence.

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The Trial Court by its judgment and decree dated 29.08.2005, dismissed the suit with cost. Being aggrieved, the plaintiff preferred R.A No.73/2005.

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The defendant entered appearance before the First Appellate Court and contested the said appeal. The First Appellate Court framed the following points for consideration:

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i. “Whether the lower court has erred in dismissing the suit of plaintiff in O.S No.215/01 on the file of C.J.(Jr.Dn.) & JMFC, Hirekerur, dated.29-8-05?

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ii. Whether the judgment and decree passed by the trial court is illegal, perverse, capricious and unreasonable and thereby interference of this court is required to set aside the said judgment and decree passed by the trial court?

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iii. What order?”

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The First Appellate Court by its judgment dated 20.07.2007, allowed the appeal and passed the following order:

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“The appeal filed by the appellant U/o 41 Rule 1 of CPC is hereby allowed.

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The plaintiff is declared as a common owner and enjoyment of the suit schedule property at ‘ADIH’ portion and whatever the obstructions caused by the defendant in the said path way of ‘ADIH’ is to be removed forthwith.

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Consequently the judgment and decree passed by the C.J.(Jr.Dn), Hirekerur in O.S No.215/01 dtd.29-08-05 is hereby set aside.

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Parties to bear their own costs.

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Sent back the LCR’s along with copy of this judgment to the lower court.

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Draw the decree accordingly.”

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Being aggrieved, the present second appeal is

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filed by the legal representatives of the defendant.

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This Court, by its order 26.7.2012, admitted the above appeal and framed the following substantial questions of law:

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“a) Whether the lower appellate court is justified in law in ignoring the recitals found in Ex.P4 and Ex.P14 (Ex,D16) with regard to boundaries of V.P.C No.163 sold in favour of brother of the respondent, which shows that, towards East of VPC No.163, there is a house and backyard of the appellant and there is no recital about the existence of alleged passage?

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b) Whether the lower appellate court has erred in law in not considering the sale deeds Ex.P2 and P3 and the sale deed dated 12.07.1966, with regard to V.P.C.No.163, which shows that, there is the house property of the appellant towards East of PVC No.163 and there is no passage as alleged?

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c) Whether the lower appellate court is right in law, in relying on Ex.P1, to hold that there is a common passage though Ex.P1 is not proved in accordance with law by the respondent?

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d) Whether the court below has committed error in holding that, ADIH, portion is an open passage though DW4, has specifically reported that, there was a building, which has been demolished and

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ADIH portion is covered with roof and further there are door frames and water tanks etc?

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e) Whether the lower appellate court has exceeded in its jurisdiction in declaring the respondent as COMMON OWNER of the alleged passage, when the prayer is to declare the alleged passage as the COMMON PASSAGE?”

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Learned counsel for the appellant Sri.P.G.Mogali assailing the judgment and decree passed by the First Appellate Court contends that except in the Sale Deed dated 02.02.1960, the eastern boundary is shown as house of Veerabhadrappa Hanchinmani and there is reference to the passage in the boundaries mentioned in

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the other documents. It is further contended that admittedly the Trial Court has ordered for appointment of Commissioner who has filed his report (Ex.D43) and there is a sketch filed along with the report which clearly demonstrates the factual aspect. That the Trial Court has adequately appreciated the said report and has also noticed that there are various constructions being put up

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the said area which is claimed to be a passage by the plaintiff.

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It is further contended by the learned counsel

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for the appellant that there is no passage in the ADIH portion as claimed by the plaintiff in the plaint as well as in the plaint hand sketch and that in the said area, as noticed by the Commissioner, various construction material as well as foundation, etc., is present which clearly discloses the fact that the said area has been used by the defendants who have placed on record that there were shops existing in the said passage. It is further contended that the First Appellate Court has granted relief larger than what is sought for by the plaintiff. Hence, he submits that the judgment of the First Appellate Court is required to be set aside and the judgment of the Trial Court is required to be affirmed.

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Per contra, learned counsel Sri.S.G.Kadadakatti, justifying the order of the First Appellate Court submits that the sketch produced along with the Commissioner’s

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report (Ex.D46) clearly discloses the existence of the passage as averred in the plaint and as disclosed in the plaint hand sketch. He further submits that the First Appellate Court having adequately re-appreciated the relevant factual matrix of the matter, has rightly allowed the appeal and decreed the suit. Hence, he seeks for dismissal of the above appeal.

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Both the learned counsels refer to various portions of the deposition of the parties and the witness which shall be referred to in the course of the order.

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Submissions of both the learned counsels have been considered and material on record has been perused. Before considering the contentions put forth by both the learned counsels, it is necessary to notice the findings recorded by both the Courts.

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The Trial Court, while adjudicating upon the issues framed by it, has recorded the following findings:

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i. The Commissioner has been appointed to inspect the property and to answer the memo of instructions of both the counsels, pursuant to which the report dated 11.7.2005 along with the sketch(Ex.D43 and Ex.D44) have been produced;

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ii. The Commissioner report has disclosed that the schedule property is not an open passage or lane, but there is a building and some portion of the same has been demolished. It is noticed that the plaintiff has come up with a definite case that the schedule property is an open passage, measuring east-west 5 feet towards the southern side, 9 feet towards the northern side, and 109 feet in the south-north direction. On the contrary, the case of the defendant is that the suit property in question is not a space, but there is a wall built between the house of the defendant and the plaintiff in the northern portion which has been demolished by the

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plaintiff high-handedly and in respect of the said incident there is a criminal case registered; iii. The plaintiff filed I.A No.IV under Order 23 Rule 1 of the CPC seeking permission for withdrawing the suit with liberty to file a fresh suit on the same cause of action, wherein, it was contended that the defendant has high-handedly erected the a temporary shed in the suit schedule property. I.A No.IV was dismissed on 16.7.2005 and thereafter, the plaintiff filed I.A No.VII under Order 6 Rule 17 of the CPC. By means of I.A No.VII, the plaintiff has substantially changed his case and sought for a declaration that the suit schedule property is the common passage between him and the defendant. Earlier the plaintiff had sought for declaration of his exclusive title over the suit property; iv. It is to be noticed that even after amendment the defendant has stuck to the earlier contention that the suit schedule property as

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described in the suit is not existing at all between the houses of the plaintiff and the defendant;

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v. DW.1 has stated that in between the houses of the plaintiff and defendant there is a triangular shape open space and its base towards the southern side measuring 3 feet 1 inch and it is stretched towards northern side up to 33 feet only;

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vi. DW.1 has further stated that the plaintiff by taking undue advantage of the ex-parte injunction and with intent to create a new passage between the houses of the plaintiff and the defendant, had demolished the defendant’s house existing next to the plaintiffs house towards the eastern side at its northern portion and they also demolished the red tile roof, two walls existing in the east-west direction and in respect of which, there is a criminal case;

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vii. DW.1 was extensively cross-examined by the plaintiff’s advocate and nothing is elicited was as to indicate that there is an open passage to the extent as claimed by the plaintiff in the suit;

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viii. DW.1 has successfully stood the test of crossexamination and not a single word is elicited so as to indicate that there is a passage open to the sky to the extent as claimed by the plaintiff in the suit existing between the houses of the plaintiff and the defendant;

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ix. The DW.2 and DW.3 are stated to be the residents of Masur village and knowing the existing state of affairs of the property of the defendants. Both these independent witnesses have filed their affidavit in the same fashion. They have categorically sworn to the effect that the schedule property is not an open passage or lane as claimed by the plaintiff but there is a building of the defendant and in the said building one Shivayogappa Nigaku Shettar

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carried on tea-stall business for about 30 years and after him another Haridas Narayan Bhat carried on the tea-stall business, and thereafter another person was carrying on food-grain business;

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x. DW.2 and DW.3 have further stated that about 4 years back the plaintiff, his wife and certain other persons highhandedly demolished the aforesaid building where the tea-stall was being run in the northern portion and in respect of the said incident criminal case is lodged against the plaintiff and certain others. They have further stated that the schedule property was never used as a common passage and it was building of the defendant and the defendant is in possession and occupation of the said building. The said witnesses have further sated that there is wire fittings, electric plug, socket fixed in the wall and two water tanks and there are tiles

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fixed on the floor and there is wooden panel front door towards southern side;

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xi. DW.2 and DW.3 have been extensively crossexamined; xii. PW.1 in his cross-examination has stated that the schedule properties exclusively belonged to him. The said testimony goes against the case of the plaintiff that the schedule property is a common passage between him and the defendant;

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xiii. In the further cross-examination of the said PW.1, it is stated that the his house is constructed about 40 years back and the house of the defendant is older than his house. It is further stated that eastern wall of his house and the western wall of the defendant’s house are mud walls and the said walls were constructed at the time of construction of their respective houses. PW.1 has stated that the report of the court commissioner is true and correct.

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However, in another sentence he has stated in his cross-examination that the schedule property is measuring east-west towards northern side 5 feet and towards southern side 9 feet and 104 feet in the south-north direction and it is open to the sky and is existing since many years. The testimony of PW.1 and defendant discloses that towards eastern side of the plaintiffs side VPC No.163 there is open passage existing and there is a house of the defendants;

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xiv. PW.3 in his cross-examination has stated that he sold his house property and open passage to the plaintiff’s brother. This testimony goes against the plaintiff’s case that the schedule passage is common between him and defendants;

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xv. The omission to mention about the existence of open passage to the extent as claimed by the plaintiff in Ex.P.14 which is a registered sale

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deed and rectification deed (Ex.P.4) cannot be simply ignored. If such big passage open to sky, if really was in existence, no prudent man would forget to mention the same in the registered sale deed of the adjoining property. Therefore, the irresistible conclusion that can be drawn from the above case is there is no such open passage to the extent as claimed by the plaintiff was in existence. Ex.P.4 and P.14 contain no recitals about the same while describing the boundaries of the property sold;

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xvi. PW.1 in his cross-examination admitted that in the year 1979 his brother purchased the property measuring east-west 13-1/2 feet and north-south 104 feet. If so, how could the plaintiff get common right in the alleged suit open space seems to be an absurd contention; xvii. It is not the case of the plaintiff that the alleged suit open passage belongs to the defendant and he was making use of the same over statutory

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period openly, peaceably as of right, as an easement, to the knowledge of the defendant, without interruption and as such acquired right of easement by prescription. No such case is made out by the plaintiff in the plaint;

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xviii. Nowhere in the plaint, the plaintiff has pleaded that his brother Rajashekarappa purchased the house property including the suit open passage. A perusal of the testimony of PW.2 discloses that the said PW.2 has stated facts quite inconsistent with the statement of PW.1.

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The Trial Court while appreciating the evidence of the Court Commissioner has noticed as follows:

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“17. ………… In the Ex.D.44 commissioner's sketch, the property of the plaintiff is shown in letters AMQB. The schedule property was shown in letters OMNOP and the house of the defendant existing towards eastern side of the schedule property is shown in letters POCD.

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The commissioner in his Ex, D43 report on page-3 at para-3 has reported in the following manner:-

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(a) The schedule property is shown in letters in MNOPOR in Ex D44- sketch.

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(b) At the southern-western corner of the schedule property.

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(c) The schedule property is open to sky at its Northern portion to the extent of 30’ – 8”.

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(d) In the schedule property there is heap of brichks of height 2’’ – 3’’.

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(e) In the schedule property, there are two independent walls shown in letters MR and NR and the said two walls stretched up to 33” – 3” towards Northern-side and coincide at point-R.

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(f) The distance between the MR and NR and walls is 3” – 1” and in said triangular portion, there is heap of mud, of height 8’’-10’’ The height of MR wall is 15 and that of NR 10”

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(g) In the schedule property, there is a water tank at a distance of 40” from southern boundary.

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(h) There is broken door panels dumped on the scrap heap of bricks in the schedule property.

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(i) In the on the schedule-property. the tiles (Parasikallu) are fixed on the floor.

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(j) In the schedule property, there is wooden log appearing like-Hosal fixed on the floor in East-West direction at a distance of 50” away from southern boundary.

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(k) In the schedule property, there is another water tank at a distance of 55' from southern boundary.

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(l) In the western wall of the defendant, at its western side, there is wire fitting wooden strip of length 30' in-South- North direction and there is a switch and plug.

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(m) The schedule property was covered with red tiled roof with supporting beams inserted in NR and western wall of the defendant. The said red tiled roof is covered in-South-North direction up to 2022 from southern boundary.

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(n) The distance between NO is 8" -1” and that of MN 3”-1" in-between the points NO, there is a door frame shown in letters Z-Z' and the said door frame is provided with 4 wooden panels,

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(0) There is no wall along JTO. But in that portion, there in mark of foundation.”

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The Trial Court upon noticing the oral and documentary evidence on record, has recorded a categorical finding that the Commissioner report Ex.D.43 discloses that the schedule property is not an open passage open to the sky. It is further noticed that the commissioner (DW.4) has stated that the schedule property was covered with red tiled roof in south-north direction up to 22 feet and the said roof was supported with wooden beams being inserted inside in the eastern wall of the plaintiff’s house. It is further noticed that the Commissioner has found the floor in the schedule property fixed with tiles. That the commissioner has found two water tanks in the schedule property, as also found wire fittings, socket plug on the wall at its western side. It is further noticed that the Commissioner has found broken door panels dumped on the scrap heap of bricks stored in the schedule property. There are two independent walls shown in the letters ‘MR’ and ‘NR’ and the said wall stretched up to 33 feet 3 inches towards northern side and coincide at the point-R and in the said

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triangular shaped portion, scrap heap of bricks stored is noticed.

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The Trial Court has also noticed that the defendant has produced six receipts as Exs.D.32 to D.35 for having paid the licence fee for running tea-stall in the schedule property. It is further noticed that the schedule property was provided with electricity supply having Meter No.ML-170 and 4 KEB demand bills bearing Meter No.ML170 have been produced as Exs.D.37 to D.39 and two receipts as Exs.D.41 and D.42 for having paid the KEB bill have also been produced. It is further noticed that the defendant has produced photographs as Exs.D.22 to D.25 respectively. Nowhere in the cross-examination of the defendant witnesses, suggestion is put denying the correctness of the said photographs. It is further noticed that all the photographs disclose that the schedule property as a building in a demolished condition and the same depicts the existence of the water tank, scrap heaps of bricks and broken door panel on the scrap heap, etc.

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The Trial Court after a detailed appreciation of the oral and documentary evidence on record, has answered issue No.1 in the negative against the plaintiff and hence dismissed the suit.

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The First Appellate Court while considering the appeal of the plaintiff and while adjudicating upon the points for consideration, has recorded the following findings:

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i. It is the only contention of the defendant that the vendor of the plaintiff’s brother was not examined before the Court as one of the witness to prove the right of easement;

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ii. That if two houses are abutting each other in the parallel way, it is common that there will be existence of a way available to each of the party, either it may be old or a new;

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iii. At the interim stage of application for injunction, status-quo has been ordered and

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the Hon’ble High Court has come to the conclusion that unless fact and evidence were recorded, no finding could be given;

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iv. Even in the sale deed of the plaintiff, there might have been mistake. Even though they were rectified by way of rectification of sale deed, the plaintiff may be prevented from getting right of easementary way even after lapse of 15 years. Therefore, the entire argument as contended by the counsel for the respondent, does not hold good;

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v. On the other hand, the evidence which is is clearly available before the Court reveals that the right of way is natural right available to every person to approach his house and in this case the appellant is only seeking permission by way of declaration in respect of right of way to take the bullock, she buffaloes and other agricultural products in that passage.

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Therefore, when there are agricultural houses and when the house of the plaintiff is abutting to the defendant in common lane area, in that circumstances, the right of way is to be given, otherwise the purpose of construction of house will be defeated;

¶177

vi. It is clear that even though photographs were taken stating that there is no way available to the plaintiff, the person who was taking those photographs has not been examined before the Court and the photographer has not issued any receipt for having received the amount from the defendant. In view non-examination of the photographer, the photographic evidence is only a secondary evidence and the same can be looked into only as denial of the case of the plaintiff;

¶178

vii. It is clear from the evidence of DW.1 that it cannot be held that merely because plaintiff’s

¶179

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brother has purchased the suit property in the year 1979 from one Veerabhadrappa Basappa Hanchinmani and even suit property was partitioned between the plaintiff’s brother and Rajashekharappa Ileera and the plaintiff subsequently even at this stage had the mistake with regard to the boundary which is rectified subsequently, that even at this stage, right of easement cannot be denied;

¶181

viii. If the evidence available in respect of the claim as per Ex.P.43 and P.44 is looked into, it is clear evidence of the Commissioner that there is open space and it is widest in the edge. Therefore, the entire Commissioner report if gone through, along with Ex.P.44-sketch, it is clear that area ‘QP’ and also in ‘MNZO’ area, there is a below of open space and this open space if made use of by both the parties, there will be right of way available to the plaintiff as

¶182

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well as the defendant. Therefore, the Court comes to the conclusion that the Trial Court has completely erred in not considering the oral evidence of DW.4 and evidence of DW.4 is much helpful to the case of the plaintiff;

¶184

ix. It is clear from the evidence of DW.4 that the old door was available in the wall and the house was in dilapidated condition according to the photographs itself;

¶185

x. Therefore, when there is an old house as per Ex.P.7, same clearly reveals that the walls are supported to each other. In that circumstance, the Court has to consider the case of the appellant and these photographs are only concocted and created to support the case;

¶186

xi. If the order for declaration for common enjoyment is not ordered, in that circumstance,

¶187

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the plaintiff will be put to greater loss and prejudice;

¶189

xii. Considering the evidence of the vendor, brother

¶190

of the plaintiff who has deposed stating that he has sold the said property and easementary right was available to the previous owner, but the evidence along with documents at Exs.P.1 to P.3 has not been considered by the Trial Court;

¶191

xiii. The Trial Court has not gone through the material evidence on record. I am of the clear view that the basis of the contradiction and omission in the sale deed, the relief of easement right which ought to have been available cannot be denied by the parties. Hence, this Court comes to the conclusion that the right of way is not given for neighboring households, the plaintiffs and defendants for enjoying the common lane, the plaintiff will be

¶192

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put greater loss and injustice. Therefore, the contents of Exs.P.1 to P.4 were not seriously denied by the defendant.

¶194

It is forthcoming from the aforementioned that

¶195

the plaintiff filed the suit for declaration that he was the owner of the suit passage as mentioned as ‘ADIH’ in the plaint hand sketch. However, subsequently, the plaintiff filed I.A. for amendment and the prayer column has been amended seeking for a declaration that the plaintiff has a right of way over the said ‘ADIH’ mentioned in the hand sketch to the plaint. However, it is relevant to note that the First Appellate Court while decreeing the suit has declared the plaintiff as a common owner of the suit property as ‘ADIH’ and that obstruction caused by the defendant in the said path ‘ADIH’ to be removed.

¶196

It is further relevant to note that although the plaintiff has amended the relief portion of the plaint to seek for a right of way through the ‘ADIH’ portion i.e. suit property, the averments in the plaint have not been

¶197

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amended. Hence, the plaintiff has not even set out necessary pleas to demonstrate that the suit passage was actually being used, since it was the case of the plaintiff in the plaint that he is the owner of the suit passage.

¶199

It is clear from the aforementioned that the plaint having been structured as one for declaration of title, during the course of adjudication, the plaintiff has changed his case to one seeking easementary right for use of the suit property as a passage.

¶200

It is further relevant to note that the plaintiff has contended that the said suit ‘ADIH’ passage is open to the sky. However, it is the consistent case of the defendant that the suit passage was built up portion and that the tea-stall and other businesses were being run in the same. It is clear from the Commissioner report (Ex.D.43) and the evidence of the Commissioner, DW.4 that the there were various construction material and portion of the damaged wall forthcoming in the said ‘ADIH’ portion of the suit property. It is further placed on

¶201

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record that during the pendency of the suit, it is alleged that the plaintiff has resorted to highhanded acts and demolished some portions of construction in the said ‘ADIH’ suit passage, as a result of which criminal proceedings are pending.

¶203

The Trial Court has in detail, appreciated the report of the Commissioner (Ex.D.43) as well as noticed the photographs that have been produced and has recorded the findings as noticed above. The First Appellate Court while re-appreciating the findings recorded by the Trial Court, has proceeded on the premise that between the property of the plaintiff and defendant, there is normally a passage and that passage is required to be maintained. Further, while appreciating the evidence of the Commissioner, the First Appellate Court has not considered the entire portion of the evidence and merely by noticing certain portions has held that the Commissioner has also reported that certain portions of the suit ‘ADIH’ are open to the sky.

¶204

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The First Appellate Court has totally ignored the material on record to demonstrate that the suit ‘ADIH’ passage was a constructed potion and the said construction has been demolished in respect of which criminal proceeding are pending. Further, the residue of the construction including wiring, etc. has been noticed to be in existence in the said suit ‘ADIH’ passage.

¶206

It is clear from the aforementioned that the First Appellate Court has categorically not appreciated the oral and documentary evidence on record and erroneously set aside the findings of the Trial Court. The plaintiff has failed in demonstrating that there was a passage, rectangular in shape and open to the sky between the property of the plaintiff and the defendant. On the contrary, defendant has succeeded in demonstrating that between the property of the plaintiff there was a teal-stall being run, which portion has been occupied by various persons and construction residue was present which was the result of the alleged high-handed acts of the plaintiff

¶207

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in respect of which criminal proceedings have been initiated. Hence, the judgment and decree of the First Appellate Court is liable to be set aside and the judgment and decree passed by the Trial Court be affirmed.

¶209

In view of the discussion made above, the substantial questions of law (a) is answered in negative and (b), (c), (d) and (e) are answered in the affirmative. Hence, the following:

¶210

ORDER

¶211

i. The above appeal is allowed;

¶212

ii. The judgment and decree dated 20.07.2007 passed in R.A.No.73/2005 by the Senior Civil Judge and Itinerate Court, Hirekerur is set aside;

¶213

iii. The judgment and decree dated 29.08.2005 passed in O.S.No.215/2001 by the Civil Judge and JMFC, Hirekerur is affirmed.

¶214

Sd/JUDGE

¶215

SH/pmp CT:GSM, List No.: 1 Sl No.: 54

Shivashankareppa S/O Horiholiyappa v. Jayappa S/O Bairappa Killer

Case brief

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Shivashankareppa S/O Horiholiyappa v. Jayappa S/O Bairappa Killer

Case brief

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What did the court decide?

What the court decided

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