R v Ganesha Bhatta Vs State Bank of Mysore

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.6.2014 PASSED IN R.A.NO.108/2012 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHIKMAGALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.8.2012 PASSED IN OS.NO.27/2007 ON THE FILE OF THE CIVIL JUDGE AND JMFC., SRINGERI.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.03.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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CAV JUDGMENT

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Challenging judgment and decree dated 03.06.2014 passed by I Addl. Senior Civil Judge, Chikkamagaluru, in RA no.108/2012 and judgment and decree dated 16.8.2012 passed by Civil Judge and JMFC, Shringeri, in OS no.27/2007, this appeal is filed.

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Brief facts are, appellant was plaintiff in OS no.27/2007 filed for declaration that he has easement by way of prescription for receiving air and light from schedule 'B' property without interruption; directing defendants to remove structure put up on schedule 'B' property by mandatory injunction and restrain defendants from interfering with plaintiff's right to receive air and light uninterruptedly by permanent injunction, etc.

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In plaint, it was stated plaintiff was absolute owner in possession and enjoyment of house bearing Assessment no.393/382, measuring East to West - 8.60 meters and North to South - 48.20 meters, situated in Harihara street, Shringeri Town (‘A’ property, for short) It was stated, ‘A’ property was purchased by plaintiff under registered sale deed dated

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08.06.1973 and thereafter, khata issued in his name. It was

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stated, except ‘A’ property, he has no other house. It was stated, towards its western side, a vacant site place measuring East to West - 2 ft. and North to South - 123 ft. was existing (‘suit property’, for short). It was stated, defendant without any manner of right, began construction by encroaching open space towards left side of ‘A’ property. It was stated, without leaving setback either to an extent of 2 ft., defendant put up construction in suit property in violation of license and town planning rules. Therefore, plaintiff approached Town Panchayat, Shringeri, to taking suitable action. Due to failure, OS no.06/2004 was filed seeking for bare injunction.

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It was stated, defendant had entered caveat, entered appearance on 17.04.2004 and on same day they filed joint memo with condition that defendant would not put up construction towards western side of suit property. Taking note of same, Town Panchayat, Shringeri, stayed construction on 04.05.2004 and restrained defendant from further construction.

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However, after stopping construction for some time, defendant continued construction. Therefore, a Court

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Commissioner was appointed in OS no.06/2004 for spot inspection and to submit report. Said Commissioner visited spot on 29.10.2004 and submitted report on 12.11.2004, reporting that defendant had not left 2 ft. space as per conditions imposed in building licence. Defendant filed objections against report. Plaintiff filed application for amendment seeking for mandatory injunction. But, application was rejected by trial Court. Thereafter, suit came to be dismissed reserving liberty to plaintiff to file comprehensive suit.

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It was stated, even at time of spot mahazar by Town Panchayat, Shringeri, plaintiff had objected issuance of licence and requested to prevent obstruction to easementary rights of air and light. Hence, licence was issued directing defendant to leave 2 ft. setback towards ‘A’ property. It was further stated at time of purchase, house purchased was 75-80 years old and even prior to purchase, his vendor was enjoying free light and air from suit property uninterruptedly. It was stated, plaintiff's site was situated at lower level, while suit property was at higher level and even water flowing from suit property into ‘A’ property would cause damage to its western wall. It was stated, construction of building by defendant in suit

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property would cause damage and obstruct free flow of air and light to ‘A’ property. Moreover, defendant dumped sand and mud near ‘A’ property, and though aware of violation of licence and obstruction caused to free flow of air and light, defendant began construction. And if any waste material were thrown towards ‘A’ property, same would fall directly on roof of ‘A’ property and cause damage. It was stated obstruction/deprivation of easement right of light and air could not be compensated in any terms. Hence, suit was filed.

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On appearance, defendant filed written statement

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denying plaint averments, but admitting, plaintiff was owner of ‘A’ property and suit property was situated on it’s western side. It was further admitted that suit property was vacant site and after obtaining building licence from Shringeri Town Panchayat, construction was put up. Even filing of joint memo in OS no.06/2004, appointment of Court Commissioner for local inspection and filing of report and plaintiff filing application for amendment and dismissal of suit on consideration of application were also admitted.

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It was contended, plaintiff could not rely on Commissioner's report in OS no.06/2004. It was stated defendant had purchased two sites bearing khata no.316, measuring East to West - 34 ft. and North to South - 75 ft. and khata no.317 measuring East to West - 34 ft. and North to South - 50 ft. And though was aware of these facts, plaintiff had in collusion with officials and by fabrication of documents, filed present suit. It was further stated, plaintiff falsely fabricated assessment copy of year 1974-75 and correct measurement of his property was 7 meters x 8.5 meters. Only out house 8 meters x 8 meters and vacant land measures 35.2 meters x 8 meters. Therefore, plaintiff was claiming more than above, contradicting his title documents. It was stated, construction by defendant was upto lintel level and interference would cause hardship to defendant.

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It was stated, plaintiff had ample opportunity to claim relief in OS no.06/2004. Failure to avail same therein, would bar present suit under Order II Rule 2 of CPC. And as cause of action in OS no.06/2004 and present suit were identical, suit was barred by res judicata. It was stated, suit would also be barred by limitation. It was contended, plaintiff

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had not acquired any easementary right of air and light for period of 30 years and relief of mandatory injunction would not be maintainable and sought dismissal of suit.

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Based on pleadings, trial Court framed following

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issues:

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Whether plaintiff proves that he is in absolute possession and enjoyment of A schedule property as per the description of the schedule?

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Whether the plaintiff further proves that the defendant started to put up the building in their site without leaving 2 feet set back as per the license conditions as well as the Town Planning Rules and Procedure?

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Whether the plaintiff further proves that, the plaintiff freely getting natural air and light from the side of the defendant property as got easementary right over the same?

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Whether the defendant proves this suit is barred under order 2 rule 2 CPC?

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Whether the defendant further proves that, the suit is suffers "from the law of res-judicata?

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Whether the plaintiff entitled declaration by way of easement of prescription?

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Whether the plaintiff entitled mandatory injunction as prayed in the plaint?

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Whether the plaintiff entitled permanent injunction as prayed in the plaint?

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What order or decree?

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In trial, plaintiff and two others were examined as

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PWs.1 to 3 and got marked Exhibits P1 to P13. In rebuttal, official of defendant was examined as DW.1 and Exhibits D1 to D16 got marked. Court Commissioner was examined as CW.1 and Exhibits C1 to C5 got marked.

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On consideration, trial Court answered issues no.1 to 3 and 5 to 8 in negative, issue no.4 in affirmative and issue no.9 by dismissing suit.

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13. Aggrieved plaintiff filed RA no.108/2012 on various

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grounds, based on which following points were framed:

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Whether the plaintiff proves that the defendant has put up construction of a building without leaving 2 feet set back and thereby obstructed the free flow of natural air and light to the "A" schedule property?

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Whether the impugned judgment and decree passed by the trial Court warrants an interference by this Court?

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Whether the appellant has made out grounds to allow the application filed under O.41 R.27 of CPC?

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What order or decree?

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On consideration, first appellate Court answered

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points no.1 to 3 in negative and point no.4 by dismissing appeal. Aggrieved thereby, plaintiff filed this appeal.

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Sri Vigneshwar S. Shastri, learned Senior Counsel appearing for Sri Gururaj R., advocate for plaintiff submitted appeal was against concurrent errors in suit for declaration, mandatory injunction and permanent injunction. Dismissal was without appreciation of evidence leading to erroneous conclusions. It was submitted, earlier OS no.06/2004 was filed for bare injunction. On appearance, joint memo was filed. Considering undertaking in Joint Memo that defendant would not construct towards plaintiff’s property, suit was closed. However, on violation of undertaking, suit was restored. Thereafter, on 12.11.2004, Court Commissioner was appointed, who submitted report that there was violation. Even after noting violation, trial Court dismissed OS no.6/2004. Even appeal filed was also dismissed. Hence, present comprehensive suit was filed. Defendant filed written statement denying averments and it was specifically contended raising bar of suit under Order II Rule 2 of CPC and sought dismissal of suit.

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It was submitted, trial Court dismissed suit on erroneous grounds holding that plaintiff had failed to prove title over ‘A’ property and that suit was hit by Order II Rule 2 of

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CPC. It took note of Commissioner's report to come to erroneous conclusions and dismissed suit. It was submitted, in appeal, plaintiff had filed application for additional evidence for producing title deeds namely, certified copies of registered sale deed dated 18.06.1920, certified copy of sale deed dated 30.04.1922, but, without appreciation of same, perverse conclusion was arrived and appeal dismissed.

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It was submitted OS no.06/2004 was for bare injunction, to restrain defendants from putting up construction on ground that defendant had not left any set-back, in which Court Commissioner was appointed, who in his report at Ex.C3, stated that at point of 4^th pillar and towards 3^rd pillar, foundation was inside ‘A’ property. Thus defendant had put up pillars without leaving set-back, but, same was not appreciated. Consequently, dismissal of suit was not justified.

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It was submitted, OS no.27/2007 was filed on different cause of action. Without appreciating said fact, both Courts dismissed suit on ground that it was hit by Order II Rule 2 of CPC. Said finding was contrary to decision of Hon'ble Supreme Court reported in Cudalore Powergen Corporation

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Ltd. v. Chemplast Cuddalroe Vinyls Ltd. and Anr., reported in 2025 SCC OnLine SC 82, wherein it was held suit filed on different cause of action would not attract bar of res-judicata.

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Insofar as Ex.C3 - report of Court Commissioner, it was submitted, in his report, CW-1 stated that 4^th pillar and 3^rd pillar foundation of defendant was inside roof line of plaintiff's house established construction put up was without leaving setback. It was submitted, as per decision of this Court in case of Parappa and Ors. v. Bhimappa and Anr. reported in 2008 SCC OnLine Kar 66, Court Commissioner’s report once submitted to Court would form part of record and continues to be so when it is got marked by examining very same Court Commissioner.

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It was submitted when defendant admitted plaintiff’s title, trial Court erred in holding that plaintiff failed to prove his title over ‘A’ property. It was submitted, plaintiff was an aged person and unless construction put up by defendant was corrected, plaintiff would not be able to enjoy his property. Hence, prayed for decreeing plaintiff’s suit by moulding and granting appropriate reliefs in interest of justice and equity.

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It was submitted, rejection of application for additional evidence was contrary to ratio in Sri Manjunath and Anr. vs. Smt. Hanumakka and Ors. (RSA no.1161/2009 disposed of on 18.12.2024) Smt.Ningamma v. CL Shankaregowda and Ors. (RSA no.147/2015 disposed of on 12.12.2024). Based on above contentions, learned Senior Counsel submitted following substantial questions of law would arise for consideration:

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1. Whether findings of both courts that OS no.27/2007 was barred under Order II Rule 2 of CPC was erroneous?

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1. Whether report submitted by Commissioner in earlier suit on 12.11.2004 which has been marked as Ex.C3 in present suit proves encroachment by defendant and required set-back has not been left by defendant?

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1. Whether both Courts were right in holding appellant failed to prove his prescriptive right held and enjoyed by him over 30 years as enshrined in Section 15 of Indian Easements Act?

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1. Whether first appellate Court was justified in dismissing application under Order XLI Rule 27 of CPC?

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1. Whether both Courts were right in dismissing suit in entirety than moulding relief appropriately in facts and circumstances of case?

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On other hand, Sri R Ashokan, learned counsel

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appearing for Sri TP Muthanna, advocate for defendant opposed

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appeal. It was submitted, appeal was against concurrent findings dismissing suit as barred under Order II Rule 2 of CPC. Therefore, there was no scope for interference in second appeal.

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It was submitted, defendant was owner of suit property on western side of ‘A’ property. It was submitted, construction by defendant had reached upto roof level and further construction stopped due to interim injunction. Thereafter, trial Court rightly dismissed suit after appreciation of material on record especially deposition of PDO of Town Panchayat, Shringeri and Ex.C3 - report of Court Commissioner observing that plaintiff failed to prove obstruction to free flow of natural air and light to his property.

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In appeal, first appellate Court observed there was no dispute of ownership of properties and held defendant had put up construction by leaving two feet set-back and had not caused obstruction to free flow of natural air and light to ‘A’ property. Above findings were concurrent on appreciation of evidence. It was submitted, dismissal of earlier suit on merits would bar present suit under Order II Rule 2 of CPC and failure

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to prove obstruction by defendant would be concurrent finding

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of fact, which cannot be interfered with in second appeal. Hence, no substantial question of law arose for consideration and prayed for dismissal of appeal.

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Heard learned counsel for parties and perused impugned judgment and decree and records.

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This appeal is by unsuccessful plaintiff in suit for declaration of plaintiff’s easement by way of prescription, mandatory and permanent injunctions against deprivation of right of easement of natural light and air from suit property to ‘A’ property, against concurrent findings.

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Main grounds urged are that there was no dispute that ‘A’ property with house belonged to plaintiff and lying on lower level, on western side of suit property belonging to defendant and defendant putting up construction in suit property. Plaintiff’s claim was that his house was in existence prior to purchase and as suit property was vacant and even plaintiff’s vendor was enjoying uninterrupted free flow of natural light and air from defendant’s property, for more than 30 years giving rise to right of easement by prescription under

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Section 15 of Indian Easement Act, 1882. And same was vindicated by defendant filing joint memo in earlier suit, undertaking not to put-up construction on western side of ‘A’ property. Subsequent construction in violation of said undertaking led to filing of present suit. Even Ex.C3 - Court Commissioner’s report, disclosed footings of two pillars extending within roof level of plaintiff’s house would establish failure by defendant to leave 2 ft. set-back. Therefore, finding of failure by plaintiff to establish obstruction would be perverse.

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And on ground that earlier suit was filed for bare injunction when defendant had begun construction, whereas present suit for mandatory injunction was filed after defendant began construction in violation of undertaking would be on different cause of action and therefore not attracting bar under Order II Rule 2 of CPC.

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And lastly, when title was not in dispute, finding of trial Court about failure by plaintiff to produce title deeds and rejection of application for additional evidence for production of said title deeds in Appeal would indicate miscarriage of justice.

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While passing judgment and decree, trial Court took note of pleadings and evidence on record. It observed plaintiff claimed ownership of house and site with measurements and boundaries mentioned in ‘A’ schedule to plaint and documentary evidence was Court Commissioner’s report and rough sketch in earlier suit as Exs.P1 and P2 showing plaintiff’s property measuring East–West 8.5 meters but 8.20 meters at one point. It observed description of property in Ex.P4 – plaintiff’s title deed as bearing municipal assessment no.234/318 with 12 ankanas tile roofed house with well, was not exact. Since, plaintiff admitted being unaware of measurement of property in his vendor’s title deed, it drew adverse inference. It noted, Ex.P9 mahazar drawn by Chief Officer of Town Panchayat mentioned measurement of plaintiff’s property as East-West - 8.6 meters on front side and 6 meters on backside and North-South - 48.28 meters with 3ft. gap between Assessment nos.382/362 and 382/363.

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It noted, material placed by defendant, included, pleadings, issues, judgment and decree and deposition of plaintiff in OS no.6/2004 as Exs.D1 to D5 and Ex.D12. It observed, plaintiff making similar assertion, defendant denying

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same and suit being dismissed by giving finding about plaintiff claiming more extent than in his title deed and therefore, failure to establish lawful possession. While, Ex.D13 - sale deed showed defendant purchasing two sites bearing khata nos.316 and 317 each measuring 34 feet East-West and 125 feet NorthSouth. Based on above observation, trial Court concluded plaintiff had failed to prove measurement of ‘A’ property as authentic and dismissed suit.

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While passing impugned judgment and decree, first appellate Court observed burden would be on plaintiff to establish he was absolute owner of 'A' property under sale deed dated 08.06.1983 and establishing construction by defendant was without leaving 2ft. set-back was obstructing free flow of natural air and light through his property.

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Taking note of admission of title, it held dispute was confined to establishing failure to leave 2ft. set-back and consequential obstruction to free flow of natural air and light. While noting plaintiff’s objection against accepting Court Commissioner’s report in OS no.06/2004, it noted plaintiff had filed application for appointment of Court Commissioner in

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present suit, which was allowed and PWD Engineer – Court Commissioner had visited spot and measured properties, submitted report and deposed as CW.1. It noted, CW.1 had observed there was no encroachment over properties, building wall of plaintiff towards defendant’s property was not in straight line and its roof projected towards defendant’s property. It noted that CW.1 specifically stated about defendant leaving space varying from 1.09 meters to 0.33 meters, from 0.33 meters to 0.57 meters and from 0.57 meters to 0.87 meters. It noted minimum space was 1.5ft., at only one point. Based on which it held there was no much obstruction for free flow of air and light. It observed, nothing much was elicited in crossexamination of CW.1.

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It also noted PW.2 – PDO categorically stated that defendant had not violated construction permission to conclude that defendant had left proper set-back. Consequently, it held findings of trial Court not calling for interference.

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It rejected application for additional evidence on ground that dispute between parties was confined to set-back

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and proposed additional evidence would not be relevant for said purpose.

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Sum and substance of plaintiff’s contention herein is that ‘A’ property was lying on lower level than suit property and therefore failure to leave proper set-back would drastically hinder free flow of natural light and air from defendant’s property, which plaintiff claims to have enjoyed uninterruptedly for more than 30 years giving rise to right of easement by prescription.

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As rightly observed by both Courts, there was no dispute about respective title of parties. While trial Court observed plaintiff failed to establish measurement of ‘A’ property given in plaint as authentic, first appellate Court observed, dispute about measurement of properties was irrelevant.

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It is seen plaintiff is seeking to establish obstruction of his right of easement by relying on Court Commissioner’s report in earlier suit. However, said report specifically mention western wall of plaintiff’s property extended into defendant’s

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property upto 30 cms. at point ‘C’ to ‘D’ as shown in rough sketch marked as Ex.P2.

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Though, plaintiff deposed as PW.1 in terms of plaint, in cross-examination, he admitted being unaware of date of obstruction by defendant and to suggestion about extending 3 ft. into defendant’s property, admitting it was only 1½ ft., run contrary to plaintiff’s claim. Even PW.2 - Chief Officer of Pattana Panchayat who admitted visiting of both properties, stated that defendant had left 2½ feet space at backside and 3½ feet at front side and that there was no violation of conditions of licence by defendant. Deposition of PW.3 that defendant had put up construction without leaving set-back would be inconsequential as he admitted being unaware of measurement of properties.

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On other hand, not only produced his title deed, he also produced building licence and building plan as Exs.D.8 and 9 and deposed as DW.1 that without any encroachment of plaintiff’s property, he had put-up construction leaving set-back as per building licence. In cross examination, it is elicited that at time of purchase of defendant’s property, it was vacant and

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about existence of tiled house of plaintiff on eastern side, and that plaintiff’s property was lower level while defendant’s property was on higher level.

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Since, plaintiff is seeking to establish right of easement by prescription, it would be appropriate to refer to requirement in law to establish same. In Justiniano Antao v. Bernadette B. Pereira, reported in (2005) 1 SCC 471, Hon’ble Supreme Court held:

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“9. …… But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of right for the last 20 years. ……”

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(emphasis supplied)

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42. This Court in Sudhakar Bhat v. Bhaskara Achari, reported in 2019 SCC OnLine Kar 4220, held:

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“Having regard to the submission of learned Counsel for the appellants, material on record, the question that arises for consideration of this

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Court is “Having held that pleadings of the plaintiff were not compliant of Sections 13 and 15 of the Act and there was alternate pathway to the plaintiff to enjoy his properties, whether the First Appellate Court was right in remanding the matter to the trial Court for amendment of the plaint and for fresh trial?”

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As pointed out, there was no dispute that the plaintiff is owner of plaint Schedule ‘A’ properties and defendant is owner of Survey No. 63/7. Location of those properties as shown in Ex. P4 was also not disputed. Defendant did not even dispute that in his land Survey No. 63/7, there is pathway shown by letters E, D and C which leads to National Highway-17 through Survey No. 61/7 a land adjoining Survey No. 63/7. According to defendant that pathway was for his exclusive use and plaintiff had no right over the same. Whereas plaintiff claimed easement by prescription, necessity as well as mamul right over that pathway.

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Right of easement is creation of the Indian Easements Act, 1882. Section 13 of the said Act deals with easement of necessity and quasi easements. Section 15 of the Act deals with acquisition of easement by prescription.

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Perusal of Section 13 makes it clear that easement of necessity arises only in cases of transfer, bequest and division of joint property by several persons. It was not the case of the plaintiff that he acquired plaint Schedule A' properties by way of transfer, bequest from the defendants or by way of division of the properties between him and the defendant. Therefore, claim of the plaintiff for easement of necessity was totally a misconception.

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The other claim was easement of mamul user. Easement of mamul user was explained by this Court in Narayana's case referred to supra as follows:

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“7. The employment of the phrase ‘Mamul right’ in the plaint does not alter the position to any extent since that expression means no more than that for a long period of time the plaintiff was receiving water in to his land along the artificial watercourse. But in a suit to enforce the right to receive such water, the plaintiff can succeed only if it is proved that the right flows from a contract or from a right acquired by prescription.”

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(emphasis supplied)

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Thus by the ratio laid down by this Court in the above referred judgment, it becomes clear that easement of mamul user is again the right accrued by user of the property for a long period. Therefore that is acquisition by prescription under Section 15 of the Act. Whereas in this case, the plaintiff had sought relief of prescriptive easement. Therefore, this relief of declaration of mamul user was only duplication of claim of easement by prescription of time. 21. From the above analysis, it becomes clear that easement of necessity and prescriptive easement are totally distinct from each other. The only easement plaintiff could claim was easement by prescription.

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In the prayer in the plaint itself, plaintiff contended that the suit pathway is public pathway. Admittedly, it is situated in the land of the defendant. None of the documents produced by the plaintiff show that the said property was public way. Even otherwise the very claim of the plaintiff for prescriptive easement, having regard to the language of Section 15 of the Act, was inconsistent with plea of the suit pathway being public pathway.

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Section 15 of the Act which deals with prescriptive easement states that as right relating to access and use of light or air and for any building having been peaceably enjoyed by any

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person claiming title thereto as of right without interruption for 20 years.

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What shall be pleadings of the plaintiff in such case is enunciated in para 14 of Bachhaj Nahar's case referred to supra, which reads as follows:

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“14. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right to drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have to plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence an not an easement. …………”

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(emphasis supplied)

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25. As already pointed out that the plaintiff himself was not certain which easement he was claiming of all the easements namely

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easement by necessity or easement by prescription or easement by mamul user or easement by grant. The entire pleading of the plaintiff regarding use of the suit pathway was in para 3(c) of the plaint. But he did not state clearly since when he started to use that pathway as of right to reach National Highway No. 17.

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Therefore, First Appellate Court held that the pleadings of the plaintiff regarding easement of prescription was not in accordance with Section 15 of the Act. The First Appellate Court also referred to the decision in Bachhaj Nahar's case in its judgment. However having held that the pleadings are not compliant with law/Section 15 of the Act whether the First Appellate Court could suo motu direct the plaintiff to amend the pleadings is the question.

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In Bachhaj Nahar's case referred to supra it was held that in the absence of required pleadings it would be hazardous to hold that relief can be moulded and to grant the relief which was not sought for. In Sk. Ibrahim's case referred to supra, the Bombay High Court in similar case held the Appellate Court should not have remanded the matter for fresh trial by giving suo motu directions to the parties to amend the pleadings which the parties did not seek. The relevant observations in the said judgment are as follows:

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“When the parties fully aware of their respective cases, lead all the necessary evidence not only in support of their case but in refutation of the claim of the other side, non-framing of the issues cannot be held to be a ground for remanding the case unless it is fatal to the case or resulted in mistrial which vitiates the proceedings. Because if the evidence which has been led before the trial Court is sufficient to reach a right conclusion and neither party has raised any objection to the framing of the issues before the trial Court, there was no reason

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why the first appellate Court should have remanded the matter for fresh trial by giving suo motu directions to the parties to amend the pleadings which parties themselves have not sought. This is not permissible as a public policy for the reason that it is for the parties to put up their case in a proper manner and once they undergo the rigour of the trial the findings should not be interfered with remanding the case. In the present case, the parties have been litigating since the year 1989, the question as to whether the plaintiff is entitled to right of way by virtue of prescriptive right or customary right of, is a matter to be decided on merits as whatever evidence the parties have in the matter, has been led, but it is not the grievance of either plaintiff or the defendants that they were not given fair opportunity to lead the evidence or conduct the trial. The appellate Court has also not examined the case on merits which could have enabled it to assess the judgment and decree of the Trial Court and, therefore, reverting the parties back to stage one could only result in prolonging the litigation and unnecessary waste of judicial time as well as causing inconvenience to the litigants. Therefore the order remanding matter for fresh trial by giving suo motu directions to the parties to amend pleading which parties themselves have not sought, not proper.”

¶198

(emphasis supplied)

¶199

The First Appellate Court having accepted that the pleadings are not in accordance with law and on accepting that as per Commissioner's report, there is alternate pathway, was not justified in remanding the matter for amendment of the pleadings and for fresh trial. Plaintiff has not appeared before this Court nor filed any cross objection challenging the findings of the First Appellate Court that pleadings are not in accordance with law to claim prescriptive

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easement and there was alternate pathway. Therefore, those findings against respondentsplaintiff attained finality.

¶203

Under these circumstances, only course left open to this Court now is to dismiss the suit. Therefore, the appeal is allowed. The impugned judgment and decree of the Courts below are hereby set aside. The suit in OS No. 427/1997 on the file of Principal Civil Judge (Junior Division), Kundapura is hereby dismissed.

¶204

Indisputably, OS no.6/2004 was filed on different cause of action than present suit. It is held in Cudalore Powergen Corporation Ltd.’s case (supra) that subsequent suit filed on different cause of action would not attract bar under Order II Rule 2 of CPC. Though trial Court may have erred on this count, same is rectified by first appellate Court. Therefore, no substantial question of law would arise for consideration.

¶205

With due deference to ratio laid down in Parappa’s case (supra), it is seen plaintiff has taken diagonally different stands with regard to reliability of Court Commissioner’ report before each Court. In view of fact that both Courts have assigned proper reasons for acceptance, no substantial question of law would arise for consideration in this regard.

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Likewise, it is seen, rejection of application for additional evidence is on ground that same would not be relevant or necessary to elucidate dispute between parties which was about leaving of set-back by defendant. Said reasoning would be justified even applying ratio laid down in Sri Manjunath and Smt.Ningamma’s cases (supra).

¶209

When there is specific evidence to indicate that plaintiff was seeking to claim right in respect of area exceeding property purchase by him, about defendant putting up construction in compliance with building licence by leaving setback and when plaintiff has extended his roof over defendant’s property, this would not be fit case for moulding of relief. Hence proposed substantial questions of law are answered as follows:

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1. Whether findings of both courts that OS no.27/2007 was barred under Order II Rule 2 of CPC was erroneous?

¶211

Not arising for consideration.

¶212

1. Whether report submitted by Commissioner in earlier suit on 12.11.2004 which has been marked as Ex.C3 in present suit proves encroachment by defendant and required set-back has not been left by defendant?

¶213

Would be a finding of fact and not constituting substantial question of law.

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1. Whether both Courts were right in holding appellant failed to prove his prescriptive right held and enjoyed by him over 30 years as enshrined in Section 15 of Indian Easements Act?

¶218

In affirmative and not giving rise to substantial question of law.

¶219