The Senior Assistant Director of Horticulture Vs Sri.K.E. Gangadharappa

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF JUNE, 2025

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1468 OF 2015 (PAR)

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BETWEEN:

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THE SENIOR ASSISTANT DIRECTOR OF HORTICULTURE DEPARTMENT OF HORTICULTURE, KADUR, KADUR TALUK-577 548, CHIKMAGALUR DISTRICT.

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THE DEPUTY DIRECTOR OF HORTICULTURE DEPARTMENT OF HORTICULTURE, CHIKMAGALUR-577 101.

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THE DIRECTOR OF HORTICULTURE DEPARTMENT OF HORTICULTURE, LALBAGH, BANGALORE-560 027.

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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GOVERNMENT OF KARNATAKA REPRESENTED BT ITS CHIEF SECRETARY, VIDHANA SOUDHA, BANGALORE-560 001.

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…APPELLANTS

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(BY SRI. S. KALYAN BASAVARAJ, ADVOCATE) AND:

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SRI. K.E. GANGADHARAPPA S/O LATE K.M. ERULAPPA, AGED ABOUT 85 YEARS, AGRICULTURIST, R/AT. MALIYAMMA KRUPA, B.H. ROAD, KADUR TOWN,

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KADUR TALUK-577 548, CHICKMAGALUR DISTRICT.

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…RESPONDENT

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(BY SRI. M.N. UMASHANKAR, ADVOCATE FOR C/R)

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THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.05.2015 PASSED IN R.A.NO.70/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., KADUR ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.09.2010 PASSED IN O.S NO.209/2006 ON THE FILE OF THE PRL. CIVIL JUDGE AND J.M.F.C., KADUR.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 30.05.2015, passed in R.A.No.70/2010 by the learned Senior Civil Judge and JMFC, Kadur.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the defendants, and the respondent was the plaintiff.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for a declaration, to declare that the plaintiff has a right of easement of necessity to ‘C’ schedule road running over the defendants property to reach ‘A’ schedule property of the plaintiff, and for a permanent injunction restraining the defendants from closing the existing ‘C’ schedule road by putting fence or constructing any compound wall or permanent structure by interfering with the peaceful use of ‘C’ schedule property by the plaintiff to reach his ‘A’ schedule property, either by themselves, their agents, servants, officials, subordinates etc.

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3.1. It is the case of the plaintiff that the plaintiff is the absolute owner in lawful possession and enjoyment of the coconut garden property bearing Sy.No.45/2 measuring 2 acres 15½ guntas situated at Mallappanahally village, Kadur Taluk, which is fully described in plaint ‘A’ schedule. The khata of the ‘A’ schedule property stands in

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the name of the plaintiff, and he is paying kandayam to the Government regularly. The plaintiff had acquired the suit ‘A’ schedule property under a partition effected between himself, and his siblings. Defendant No.1 has property in Sy.No.6, measuring 1 acre 3 guntas in Haruvanahalli village. Previously, the said land was called as ‘Gondi Topu’. The plaintiff and his family members are reaching their lands by using suit ‘B’ schedule road. It is contended that, Sy.No.45/2 at schedule ‘A’ has a total extent measuring 7 acres and 24 guntas, including a kharab of 0.33 guntas, among them. ‘A’ schedule property was allotted to the share of the plaintiff, and the remaining property in the ‘A’ schedule property has been allotted to the plaintiff’s brothers. In ‘A’ schedule property, 1 acre of the land has been covered, towards east by: APMC compound, Channel and the remaining property in suit ‘A’ schedule property, West by: suit ‘B’ schedule property, North by: APMC compound and South by: Channel, and then the property belongs to Anjinappa. The plaintiff is

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not having any other way except suit ‘B’ schedule property

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to reach his land and has been using the property for more than 60 years. Hence, the plaintiff has a right to make use of ‘B’ schedule property to reach ‘A’ schedule property from ‘B’ schedule road.

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3.2. It is contended that defendant No.1 has khata,

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but has no right to obstruct or interfere with the peaceful use of the said road, and he has no right to close the said road. The defendants are misusing their official power, and attempting to close the said road by creating a compound wall. The act of defendant No.1 is illegal. It is contended that the plaintiff requested defendant No.1 not to close the road, and to allow him to make use of ‘C’ schedule road, but defendant No.1 refused and threatened the plaintiff with dire consequences, by denying the right of way. The plaintiff got issued a notice under Section 80 of the CPC. Hence, a cause of action arose for the plaintiff to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit.

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3.3. Defendant No.1 filed a written statement

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denying the averments made in the plaint. It is contended that the plaintiff’s land, and place are situated at Mallappanahally village, and there are different ways to reach their properties. The plaintiff is using these roads to reach his land, and at any point in time, neither the plaintiff nor his predecessors have been using the land bearing Sy.No.6 to reach their land. The land bearing Sy.No.6 was granted to defendant No.1 in 1991-92 and around the property, defendant No.1 has put up a fence. The plaintiff has filed a suit to create the non-existent road in the property, belonging to defendant No.1. It is contended that the plaintiff’s father filed a suit in O.S.No.161/2001 regarding the alleged road, and the said suit was dismissed for non-prosecution. Hence, the second suit is not maintainable.

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3.4. The plaintiff got amended the plaint from time to time, and the defendants filed an additional written statement denying the averments of the plaintiff, that

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during the pendency of the suit, the defendants forcibly closed the road and left the ‘C’ schedule road for the use of the plaintiff.

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3.5. The Trial Court, based on the pleadings of the

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parties, framed the following issues and additional issues:

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1) Whether the plaintiff proves that he has been in lawful possession and enjoyment of the suit schedule property as on the date of suit?

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2) Whether the plaintiff proves the alleged interference by way of closing the road?

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3) Whether the plaintiff is entitled for the reliefs claimed?

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4) What order or decree?

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Additional Issues:

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1) Whether the plaintiff proves that during the pendency of suit the defendants have forcibly closed the road shown in the ‘B’ schedule and left the road shown in schedule ‘C’ of the plaint?

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2) Whether the plaintiff proves that at present he is using ‘C’ schedule property as easement of necessity to reach ‘A’ schedule property?

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3.6. The plaintiff, to substantiate his case, examined himself as PW-1, examined 2 witnesses as PWs.2 and 3 and marked 38 documents as Exs.P1 and P38. In rebuttal, the official of the defendant was examined as DW.1, and marked 12 documents as Exs.D1 to 12. The Court commissioner was examined as CW.1, and marked 15 documents as Exs.C1 to C15. The trial Court, after recording the evidence, hearing on both sides, and on assessing the verbal and documentary evidence, answered issues No.1 to 3, and additional issue Nos.1 and 2 in the negative and issue No.4 as per the final order. Consequently, the trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 02.09.2010.

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3.7. The plaintiff, aggrieved by the judgment and decree dated 02.09.2010 passed in O.S.No.209/2006, preferred an appeal in R.A.No.70/2010 on the file of the learned Senior Civil Judge and JMFC, Kadur.

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3.8. The First Appellate Court, after hearing the

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learned counsel for the parties, framed the following points for consideration:

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1) Whether the appellant/plaintiff proved that he has got easementary right over property of defendants/respondents morefully shown in suit ‘C’ schedule?

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2) Whether the appellant/plaintiff proves that he is entitled for the relief of declaration and permanent injunction as prayed for?

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3) Whether the appellant/plaintiff further proves that the judgment and decree passed by the trial Court in O.S.No.209/2006 dated 02.09.2010 is illegal and liable to be set aside?

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4) What decree or order?

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3.9. The First Appellate Court, on re-assessing the

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verbal and documentary evidence, answered points No.1 to 3 in the affirmative, and point No.4 as per the final order. The appeal was allowed vide judgment dated 30.05.2015. The judgment and decree passed in O.S.No.209/2006 dated 02.09.2010, by the Principal Civil

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Judge and JMFC, Kadur, was set aside. The suit of the plaintiff was partly decreed. It is declared that the plaintiff

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is having easementary right over the property of the defendants in Sy.No.6 of Haruvanahalli village, Kadur taluk. The defendants were directed to permit the plaintiff to enjoy the said easementary right in suit ‘C’ schedule property to the extent of 10 feet width. Consequently, the defendants were permanently restrained from closing the 10 feet width space/road in suit ‘C’ schedule property by putting a fence or compound wall, etc.

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3.10. The defendants, aggrieved by the judgment

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and decree passed by the first Appellate Court, have filed this Regular Second Appeal.

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Heard the arguments of Sri. Kalyan Basavaraj,

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learned counsel for the defendants, and Sri. M.N. Umashankar, learned counsel for the plaintiff.

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Learned counsel for the defendants submits

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that the plaintiff has filed a suit for a declaration to declare that the plaintiff has got an easementary right to use the property of the defendants. He submits that the plaintiff

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has not pleaded, and proved that the plaintiff has been using the suit way for more than 20 years, to claim a right of easement. The plaintiff must plead and prove that the plaintiff is using the suit schedule property continuously, and without any interruption for more than 20 years as per Section 15 of the Easementary Act. He submits that in the absence of the pleading, the first Appellate Court has committed an error in decreeing the suit of the plaintiff. He also submits that the Court commissioner has submitted a report stating that the plaintiff has an alternative way to approach his land. The plaintiff has failed to prove the right of easement in the property of the defendants. He submits that the first Appellate Court has not re-appreciated correctly the entire evidence on record. Hence, on these grounds, he prays to allow the appeal.

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Per contra, the learned counsel for the plaintiff submits that the plaintiff is the owner and in enjoyment of ‘A’ schedule property, and the plaintiff has no way to approach his land except in the land bearing Sy.No.6

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belonging to defendant No.1. He submits that the plaintiff has a right of easement in the land bearing Sy.No.6. The first Appellate Court, considering the entire evidence on record, has rightly decreed the suit of the plaintiff. Hence, on these grounds, he prays to dismiss the appeal.

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This Court, vide order dated 14.12.2016,

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admitted the appeal to consider the following substantial question of law :

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“Whether the first Appellate Court has committed any serious legal error in declaring and shifting the easement of necessity over ‘C’ schedule property, though it was claimed by the plaintiff over ‘B’ schedule property, considering the changes that occurred during the pendency of the suit?”

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Perused the records, and considered the

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submissions of learned counsel for the parties.

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9. REG. SUBSTANTIAL QUESTION OF LAW :

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To prove the case of the plaintiff, the plaintiff was examined as PW.1. He deposed that he is the owner of the land bearing Sy.No.45/2, which he acquired through a

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partition. The suit schedule property is adjacent to ‘B’ schedule property. The plaintiff is making use of ‘B’ schedule property to reach his land. The plaintiff, except the suit ‘B’ land, has no other alternative way to approach his land. Originally, the land in Sy.No.6 belonged to the Government, and it was granted in favour of defendant No.1 in 1991-92. Defendant No.1 is obstructing and interfering with the suit way. Defendant No.1 has no right to close down the way/road. The plaintiff produced documents Exs.P1 to P38 to substantiate his case.

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During the course of cross-examination of PW.1, he stated that, it may be true that defendant No.1 owns land measuring 1 acre 6 guntas. It was elicited that the plaintiff has been using the suit way for 30-40 years. The road shown in Ex.P6 is the road leading to his land. He is unable to tell which area is shown in Ex.P7. He is unable to tell which is the land shown in Ex.P8. It was also elicited that the land belonging to him is adjacent to the property of defendant No.1. He states that, he has no

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land adjacent to the B.H.Road. The road is shown outside Sy.No.6 on the map, which is correct. The particular portion shown in Ex.P1 is marked as Ex.P1(a). It was elicited that, in 1991-92, the Horticulture office building was built on the land in Sy.No.6. There were numberous bushes, and trees there before constructing the Horticulture office. He had objected to the construction and had given representation to the contractor. He has denied that, he has filed a false suit.

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The plaintiff examined Sri. Prabhakara @ Prabhu as PW.2. He deposed that, he knows the plaintiff in the instant case, and saw the suit property. The suit property belongs to the plaintiff, and it bears Sy.No.45/2 measuring 2 acres 15 ½ guntas, and it is the ancestral property. The plaintiff is using the ‘B’ suit way to reach ‘A’ schedule land. During the cross-examination, it is elicited that his land is adjacent to the land of the plaintiff. There is an office building belonging to the Horticulture Department. He does not know as to how the plaintiff

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acquired the land. The suit property is 50 ft away from NH-206 road. They have to go to their land through the plaintiff’s land. It is true that there is a canal on the southern part of the property belonging to defendant No.1. It is denied that there is a path for people and cattle to walk along that canal. It is denied that neither the plaintiff nor anybody has the right to use the land of defendant No.1. Anil Kumar was examined as PW.3. The examination-in-chief of PW.3 is on the same line, as that of the examination-in-chief of PW.2.

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On the other hand, one Vedamurthy, the official of defendant No.1 was examined as DW.1. The examination-in-chief of DW.1 is the replica of the written statement averments, and marked 12 documents as Exs.D1 to D12. During the cross-examination, nothing has been elicited to disbelieve the evidence of DW.1.

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During the pendency of the suit, the Court commissioner was appointed to inspect the spot. The

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Court commissioner inspected the spot and submitted a report. The Court commissioner was examined as CW.1. He deposed that as per the Court’s direction, he visited the spot and submitted a report, marked as Ex.C1 to C15. During the cross-examination, he admitted that the defendants had put up the compound wall and the neighbouring landowners had put up the slab to reach the newly formed layout.

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From the perusal of the material placed on record by the parties, it is clear that the plaintiff has not pleaded that he had enjoyed the suit property as a way to reach his land, and has not pleaded his continuous enjoyment of the easement claimed by the plaintiff, as of right for over 22 years prior to the date of filing of the suit.

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Easements may relate to a right of way, a right to light and air, a right to draw water, a right to support, a right to have overhanging caves, a right of drainage, etc. Easements can be acquired in different ways and are of

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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 the easement, the manner of acquisition of the right, and the manner of disturbance or obstruction to the easementary right. The pleadings and proof are necessary for establishing an 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 20 years. (ending within two years next, before the institution of the suit). The plaintiff 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 license, and

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not an easement.

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From the perusal of the plaint, the plaintiff has

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not pleaded 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). The plaintiff has failed to plead and prove the easement of prescription. The plaintiff cannot claim the right of a way in another’s land, unless the right is shown to have been exercised as of a right for a statutory period. Long and consistent use gives rise to a presumption that such a user had been as of a right.

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As per the report of the Court commissioner, defendant No.1 constructed a compound wall. Hence, there is no assertion of the existence of the suit way. The plaintiff amended the plaint, and it is not pleaded that the defendants have constructed a compound wall around their land.

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As observed above, the plaintiff failed to plead, and prove the right of easement by prescription. The first

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Appellate Court, without considering the said aspect, has passed an impugned judgment. The impugned judgment passed by the first Appellate Court is arbitrary, and capricious, and the same is liable to be set aside. In view of the above discussion, I answer substantial question of

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law in the affirmative.

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