Defendants challenged the first appellate court's decree granting plaintiffs a right of way over 'C' schedule road as easement of necessity after family partition. The High Court found commissioner's report established no other access existed, found no substantial question of law, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:37943 RSA No. 689 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 689 OF 2015 (DEC/INJ)
BETWEEN:
BOTH ARE AGRICULTURISTS R/AT GUDALU VILLAGE, ANAGODU HOBLI, DAVANAGERE DISTRICT - 577001
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
(BY SRI. NAIK N R., ADVOCATE)
AND:
…APPELLANTS
BOTH ARE AGRICULTURISTS R/AT GUDALU VILLAGE,
ANAGODU HOBLI, DAVANAGERE DISTRICT - 577001
BOTH ARE AGRICULTURISTS R/AT GUDALU VILLAGE, DAVANAGERE DISTRICT - 577001
…RESPONDENTS
(BY SRI. R. GOPAL, ADV. FOR R1 & R2; R3 & R4 - SERVED)
THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 11.2.2015 PASSED IN R.A.NO.19/2013 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE, DAVANGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 2.2.2013 PASSED IN OS.NO.162/2003 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN.), DAVANGERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants challenging the judgment and decree dated 11.02.2015 passed in R.A.No.19/2013 passed by the learned III Additional Senior Civil Judge, Davangere, wherein the First Appellate Court reversed the judgment and decree passed by the trial Court.
NC: 2024:KHC:37943 RSA No. 689 of 2015
It is the plaintiffs' case that, the plaintiffs are residents of Gudalu village, Anagodu Hobli, Davangere Taluk. They are the owners of suit schedule item Nos. A and B, respectively, and the defendants are cousins of the plaintiffs. Original propositus Doddabasappe had three sons: Kallappa, Thoriyappa and Mahadevappa. The three brothers had an oral division long after the father's death. None of the brothers are alive. The original propositus owned a total of 14 acres and 20 guntas of land in Sy. No.11 of Gudalu village. Subsequent to the repetition survey settlement, the land was renumbered as survey No.24 and was phoded into 2 pieces, i.e., 4 acres, 9 guntas in Sy. No.24/1 and 10 acres, 13 guntas in Sy. No.24/2. It is contended that the plaintiffs were approaching their land A, B, C, and D through ‘C’ schedule property. It is contended that the father of defendant No.2 and of his family did not come in the way of the plaintiffs using their right of way over the land of defendant No.1.
All of a sudden, about three months ago, defendant No.1 tried to obstruct the plaintiffs from making use of the road which is situated in his land to carry their agricultural operations. The plaintiffs requested the defendants not to cause any obstruction, but the defendants did not give any heed to the request made by the plaintiffs. It is contended that the plaintiffs have a right to use ‘C’ schedule property by easement of necessity. Hence, this suit.
NC: 2024:KHC:37943 RSA No. 689 of 2015
there was no road in Sy before executing the partition deed. No.24/2, since the same was cultivated by Thariyappa and as per the partition deed dated 11.09.1998, a provision for a cart track was made to access the property shown at point 'BCI HMLKRJ' annexed rough sketch to the written statement. It is contended that no ‘C’ schedule property exists. Hence, prayed to dismiss the suit.
NC: 2024:KHC:37943 RSA No. 689 of 2015
NC: 2024:KHC:37943 RSA No. 689 of 2015
the First Appellate Court has committed an error in passing the impugned judgment. He submits that there is no existence of ‘C’ schedule property between the property allotted amongst the plaintiffs and the defendants. He submits that the defendant has no easement right by way of the necessity to enjoy the property belonging to defendants No.1 and 2, and no material is produced to establish the existence of easement right, and the sketch map produced along with the plant is not correct. Hence, on these grounds, he prays to allow the appeal.
witnesses as PW.2 to PW.5, who have deposed that there exists ‘C’ schedule cart track to reach the land of the plaintiffs and the plaintiffs have no other way to approach their land.
and the Court Commissioner submitted a report about the existence of the ‘C’ schedule road in his report in Ex.C1. The Court Commissioner was examined as CW.1, and CW.1 has deposed that except for the ‘C’ schedule road, there are no other roads to reach the land of the plaintiffs. So the First Appellate Court, considering the report of the Commissioner marked as Ex.C1 and the evidence of CW.1, recorded a finding that the plaintiffs have no other way except ‘C’ schedule property, and the First Appellate Court has also reproduced the suit rough sketch which discloses that except ‘C’ schedule property, the plaintiffs have no other way to approach their lands. In order to consider the case in hand, it is necessary to examine Section 13 of the
Indian Easements Act 1882, which reads as follows:
"13. Easements of necessity and quasi easements .—Where one person transfers or bequeaths immovable property to another,—
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement or
NC: 2024:KHC:37943 RSA No. 689 of 2015
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement, or
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons—
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee."
NC: 2024:KHC:37943 RSA No. 689 of 2015
passing the impugned judgment. Hence, I do not find any error in the impugned judgment or any substantial question of law that arises in this appeal.
the following:
ORDER
The appeal is dismissed .
Consequently, the judgment and decree
passed by the first appellate court is confirmed.
No order as to the costs.
ssb
2 issues framed by the court
Whether the plaintiffs acquired a right of way over 'C' schedule property by easement of necessity following partition.
Whether the first appellate court erred in reversing the trial court's dismissal and decreeing the suit.
2 provisions across 2 enactments
Smt Mahanthamma
Sri Jagadeesh
Sri Parameshwarappa
Sri Mahadevappa
Sri Hanumanthappa
Sri Thoriyappa
Ashok S.Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
