Allowed

Sulemansab Abdul Raheman Sab Kanake v. the Chief Officer, Town Municipal

Karnataka HC2 Sept 2024RSA/5617/2011

Case brief

AI extract

What is this about?

Second appeal over ownership of a boundary wall and prescriptive easement rights of way, air and light through a door and window in that wall at Laxmeshwar. The High Court held the first appellate Court misread the case as claiming a neighbouring property, found its reversal perverse, and restored the trial Court decree.

What the court decided

AI extract

Sulemansab Abdul Raheman Sab Kanake Vs the Chief… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:12619 RSA No. 5617 of 2011

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR SECOND APPEAL NO. 5617 OF 2011

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BETWEEN:

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SULEMANSAB ABDUL RAHEMAN SAB KANAKE, AGE: 58 YEARS, OCC: AGRICULTURE & BUSINESS, R/O DESAIBANA, LAXMESHWAR, TQ: SHIRAHATTI-582116.

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…APPELLANT

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(BY SRI SADIQ N. GOODWALA, ADVOCATE)

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AND:

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Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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THE CHIEF OFFICER, TOWN MUNICIPAL COUNCIL, LAXMESHWAR-582116.

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THE PRESIDENT, TOWN MUNICIPAL COUNCIL, LAXMESHWAR-582116.

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IBRAHIMSAB HUSSAIN SAB SHIDDI AGE: 61 YEARS, OCC: AGRICULTURE, R/O LAXMESHWAR, TQ. SHIRAHATTI-582116.

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DUDDUSAB KHADARSAB KANAVI, AGE: 62 YEARS, OCC: AGRICULTURE, R/O LAXMESHWAR, TQ: SHIRAHATTI-582116.

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NC: 2024:KHC-D:12619 RSA No. 5617 of 2011

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MAHABOOBSAB ABDULRAHEMANSAB URF NAVARSAB KANAKE, AGE: 66 YEARS, OCC: NIL, R/O LAXMESHWAR, TQ: SHIRAHATTI-582116.

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HUSSAINSAB MAHAMMAD HUSSAIN SHIDDI, AGE: 35 YEARS, OCC: AGRICULTURE, R/O LAXMESHWAR, TQ: SHIRAHATTI-582116.

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GOUSESAB KARIMSAB MUNDAS AGE: 70 YEARS, OCC: BUSINESS, R/O LAXMESHWAR, TQ: SHIRAHATTI-582116.

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…RESPONDENTS

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(BY SRI G.N.NARASAMMANAVAR, ADVOCATE FOR R1; SRI A.B.PATIL, ADVOCATE TOF R4; SRI V.R.PATIL, ADVOCATE FOR R3 TO R7; R2 SERVED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.05.2011 PASSED BY ADDITIONAL SENIOR CIVIL JUDGE, GADAG, SITTING AT LAXMESHWAR IN R.A.NO.90/2009 BY REVERSING THE JUDGMENT AND DECREE DATED 30.10.2009 PASSED BY CIVIL JUDGE (JR.DN.) AND JMFC, LAXMESHWAR IN O.S.NO.109/2006 BY ALLOWING THE APPEAL.

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

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ORAL JUDGMENT

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The plaintiff has filed the second appeal challenging the judgment and decree passed in R.A.No.90/2009 dated 24.05.2011 on the file of the

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Addl.Senior Civil Judge, Gadag (hereinafter referred to as ‘the first appellate Court’), which reversed the judgment

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and decree passed in O.S.No.109/2006 dated 30.10.2009 on the file of the Civil Judge (Jr.Dn.) and JMFC, Laxmeshwar (hereinafter referred to as ‘the trial Court’).

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For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court.

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It is the case of the plaintiff that the plaintiff has filed suit for declaration to declare that he is the absolute owner of ‘ABCD’ wall of southern side of CTS No.1978 mentioned in the hand sketch map annexed to

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the plaint and further sought relief to declare that he has acquired prescriptive easementary right of way and air and light shown to the southern side of the door shown as ‘E’

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by way of ingress and egress and window shown as ‘FG’ in

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the ‘ABCD’ wall and consequent relief of injunction restraining the defendants and their agents from demolishing ‘ABCD’ wall and door and window.

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The plaintiff is absolute owner of the suit property bearing CTS No.1978 which is measuring 1 feet 6 inches width and 36 feet 5 inches length situated near the limits of Laxmeshwar municipality and that the plaintiff is doing vegetable business in the said CTS No.1978. One Gangadhar and Kuberappa Mahantshettar were the previous owners of CTS No.1978 of Laxmeshwar. The plaintiff has purchased the said CTS No.1978 on 18.02.1999 from the previous owner Kuberappa Mahantshettar under a registered sale deed. The previous owner and the plaintiff have been using the space adjacent to the southern side ‘ABCD’ wall and has got easementary right by way of prescription and therefore using way through door and window, is for air and light. It is stated that right of easement by way of prescription is for more than 35 years. Defendant Nos.1 and 2 are the Town

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Municipality, Laxmeshwar and having its property bearing CTS Nos. 1997, 1996 and southern side of CTS No.1998. The plaintiff came to known that defendant Nos.1 and 2 are demolishing CTS No.1998 and other old buildings and in its place intent to construct a new complex and in such an event ‘ABCD’ wall in CTS No.1978 will also be collapsed. Therefore, filed suit for declaration and for easementary right.

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Defendant Nos.1 and 2 have filed written statement and denied that the plaintiff or his vendors are having right of way, air and light in the ‘ABCD’ wall. Further, defendant Nos.1 and 2 denied that they were demolishing CTS No.1998 and also demolishing CTS No.1978, but has contended that the plaintiff did not have easementary right of construction through ‘ABCD’ wall and ‘FG’ window to use as way and utilise the window for air and light. Therefore, prays to dismiss the suit.

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Defendant Nos.3 to 7 have been impleaded themselves by filing application for impleadment and filed written statement denying contents in the plaint. It is

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NC: 2024:KHC-D:12619 RSA No. 5617 of 2011

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stated that the wall in the property bearing CTS No.1998 is in existence for more than 70-80 years and on the property bearing CTS No.1978, there was no door or window therefore, plaintiff is not entitled to seek easementary right as prayed for. Therefore, prays to dismiss the suit.

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The trial Court has famed the following issues:

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i. Whether the plaintiff proves that he is the absolute owner of the wall which is situate on the southern side of CTS No.1978 and which is shown in the plaint sketch with the letters ಅ ಬ ಕ ಡ ?

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ii. Whether the plaintiff proves that he acquired prescriptive right of easement to receive air and light through the door which is fixed in ಅ ಬ ಕ ಡ Wall which is shown in the plaint sketch with the letter E and through the windows which are fixed in ಅ ಬ ಕ ಡ Wall which is shown in the plaint sketch with the letter F G and further proves that the acquired prescriptive right of easement to pass through the said door which is shown in the plaint sketch with the letter E?

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iii. Whether the plaintiff proves that the defendants are making an illegal attempt to

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remove ಅ ಬ ಕ ಡ wall and to remove the door and windows as contended in the plaint?

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iv. Whether the plaintiff is entitle for the relief of declaration as prayed in the suit?

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v. Whether the plaintiff is entitle for the permanent injunction as prayed in the suit?

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vi. Whether the plaintiff is entitled for suit claim? vii. What Order or decree?

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After appreciating the evidence on record, the

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trial Court has decreed the suit and declared that the plaintiff is the owner of the wall bearing CTS No.1978 and further declared that the plaintiff has acquired prescriptive right of easement passed through the door marked by letter ‘E’ and letters ‘FG’ to receive air and light of the said ‘ABCD’ wall. The trial Court assigned the reason that the plaintiff has purchased ‘ABCD’ wall as per Ex.P8-sale deed and the door and window are in existence for more than 35 years, hence, decreed the suit as prayed for.

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Defendant Nos.1 and 2-Municipality has not filed appeal but defendant Nos.3 to 7 have filed appeal before the first appellate Court and the first appellate Court has reversed the judgment and decree passed by

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the trial Court and dismissed the suit. The first appellate Court has assigned reasons that Kuberappa Mahanshettar was not the owner of CTS No.1998, therefore, he could not alienate CTS No.1998 or any building situated thereupon of the plaintiff.

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Further the first appellate Court has assigned the reason that plaintiff has not pleaded ingredient under Section 15 of the Easement Act, 1882. Therefore, the plaintiff has not proved ingredients, hence, not entitled right of easement as claimed by the plaintiff. Therefore with this reason, allowed the appeal and set aside the judgment and decree passed by the trial Court.

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This Court while admitting the appeal on 20.09.2011, has framed the following substantial question of law:

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“Whether the appellant/plaintiff has established that he is the owner and in possession of property bearing CTS No.1978, which is shown in the plaint sketch as ‘ABCD’, in terms of Ex.P.8, which is a registered sale deed?”

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NC: 2024:KHC-D:12619 RSA No. 5617 of 2011

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The first appellate Court has assigned the reason that Kuberappa Mahantshettar was not the owner of property bearing CTS No.1998. It is not the case of the plaintiff that Kuberappa Mahantshettar was the owner of CTS No.1998. It is the case of the plaintiff that Kuberappa Mahantshettar is the owner of CTS No.1978 but the first appellate Court has misconstrued itself holding that Kuberappa Mahantshettar is owner of CTS No.1998 and has sold it to the plaintiff.

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What is the case of the plaintiff is that the plaintiff is owner of wall bearing CTS No.1978. The plaintiff himself admitted that the wall situated in CTS No.1998 belongs to the Municipality. What the plaintiff is claiming is that there is door and window in the wall CTS No.1978. Ex.P8 is the registered sale deed which proves that the plaintiff is owner of the property including wall situated at CTS No.1978.

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It is the case of the defendant that as per Ex.P8-sale deed, there was no door or window towards the southern side of the wall at CTS No.1978. When the

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property was purchased by the plaintiff from Kuberappa Mahantshettar, there is no evidence placed by the defendants to prove that when the plaintiff had purchased the property bearing CTS No.1978 and there was no door or window on the southern side of the wall of CTS No.1978. Furthermore, soon after purchase of the property, plaintiff might have opened window and door towards southern side of the wall CTS No.1978. Therefore, the plaintiff is being using the said door and window as in the hand sketch map for more than 35 years as on the date of filing of the suit without interruption with knowledge of defendants-Municipality continuously. Therefore, trial Court has decreed the suit in declaring the plaintiff is owner of the wall situated at CTS No.1978 but the first appellate Court has misunderstood that the plaintiff is claiming the wall on CTS No.1998. This is perverse approach of the first appellate Court.

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Further, the plaintiff is claiming easement right by way of prescription that for more than 35 years plaintiff is using the door and window for ingress and egress and

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for light and air through window, and defendant Nos.1 and 2-Municipality has not challenged the judgment and decree passed by the trial Court. In the suit, the defendant Nos.3 to 7 have impleaded themselves and opposed the suit of the plaintiff. It is only the case of the defendant Nos.3 to 7 that for public interest they are opposing the suit of the plaintiff. But what is public interest involved is not stated by the defendant Nos.3 to 7 in their written statement. Furthermore, it is not the case of the defendant Nos.3 to 7 that they are very much affected if plaintiff is

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given easementary right. There is no evidence by defendant Nos.3 to 7 that they are adjacent to the CTS Nos.1978 and 1998, hence, their right is affected. Therefore, in what way the decree of declaring plaintiff is entitled easement right affects the defendant Nos.3 to 7 and what is public interest involved, are not forthcoming by the defendant Nos.3 to 7 either in the written statement or in the evidence. The defendant Nos.3 to 7 are simply just resisting suit filed by the plaintiff without there being any reasoning or cause of action. Whether

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NC: 2024:KHC-D:12619 RSA No. 5617 of 2011

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defendant Nos.3 to 7 have claim or not but considering the case of the plaintiff on his own pedestal he has proved that the wall on CTS No.1978 belong to him as he has purchased from his previous vendor Kuberappa Mahantshettar as per Ex.P8. There are door and window on the said southern side of the wall is being used by the plaintiff for more than 35 years. Therefore, in this regard, the trial Court is correct in granting decree as prayed for by the plaintiff but the first appellate Court by its perverse approach reversing the judgment and decree passed by

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the trial Court is not correct and legal. Therefore, the judgment and decree passed by the first appellate Court requires to be set aside by confirming the judgment and decree passed by the trial Court. Accordingly, I answer the substantial question of law by answering that plaintiff established that he is owner and in possession of the property bearing CTS No.1978 as against Ex.P8 and also entitled easement right to pass through door for ingress and egress for air and light. Therefore, appeal filed by the

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NC: 2024:KHC-D:12619 RSA No. 5617 of 2011

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plaintiff is liable to be allowed. Accordingly, I proceed to pass the following:

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ORDER

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i. Appeal is allowed.

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ii. The judgment and decree passed in R.A.No.90/2009 dated 24.05.2011 on the file of the Addl.Senior Civil Judge, Gadag is set aside. The judgment and decree passed in O.S.No.109/2006 dated 30.10.2009 on the file of the Civil Judge (Jr.Dn.) and JMFC, Laxmeshwar, is hereby confirmed.

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iii. The application filed in I.A.No.1/2024 for permission, is disposed off with liberty to plaintiff/appellant to work out with defendant Nos.1 and 3-Municipal council.

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iv. No order as to costs.

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v. Draw decree accordingly.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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KGK / CT:GSM

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List No.: 2 Sl No.: 19

Sulemansab Abdul Raheman Sab Kanake v. the Chief Officer, Town Municipal

Case brief

What is this about?

What the court decided

Sulemansab Abdul Raheman Sab Kanake v. the Chief Officer, Town Municipal

Case brief

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