Sharadamma Vs Deputy Tahsildar

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 16.9.2010 PASSED IN R.A.NO.340/2007 ON THE FILE OF I ADDITIONAL DISTRICT JUDGE, TUMKUR, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 8.10.2007 PASSED IN OS.NO.217/2001 ON THE FILE OF CIVIL JUDGE (SR.DN.), KUNIGAL.

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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 appellant challenging the judgment and decree dated 16.09.2010 passed in R.A.No.340 of 2007 by the learned I Additional District Judge, Tumkur, and the judgment and decree dated 08.10.2007 passed in O.S.No.217 of 2001 by the learned Civil Judge (Sr.Dn.) and Addl. MACT, Kunigal.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was plaintiff No.1, respondent Nos.1 to 10 were the defendants and respondent Nos.11 to 13 were plaintiff Nos.2 to 4.

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

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The plaintiffs filed a suit for declaration to declare that they are the absolute owners of the suit schedule

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property and in peaceful possession and enjoyment of the suit schedule property, and also for declaration that there is no cart track or any other way to the defendants in the suit schedule property and also mandatory injunction directing the defendants to close

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pathway or cart track. It is the case of the plaintiffs that the suit schedule property is the land measuring 2 acres 6 guntas in Survey No.54/1 situated at Sondekoppa village, Kunigal Taluk. The said suit schedule property fell to the share of the husband of plaintiff No.1 and the father of plaintiff No.3 in the partition effected between the husband of plaintiff No. 1 and his brother Ningaiah, under a registered partition deed dated 15.08.1965. Since from the date of partition, plaintiff No.1's husband was in possession and enjoyment of the suit schedule property. The defendants have no right or interest over the suit schedule property. Plaintiff No.1's husband- Boraiah had executed a settlement deed on 06.09.1986 and

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the suit schedule property was fell to the share of the plaintiffs. The defendants are creating a pathway in the suit schedule property. Defendant Nos.1 to 5 at the instigation of defendant Nos.6 to 9 had interfered with the plaintiffs' peaceful possession and enjoyment

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over the suit schedule property. They have cut and removed sugarcane crop and coconut trees grown by the plaintiffs in the suit schedule property. The plaintiffs issued a notice to defendant Nos.1 to 5 on 08.11.2001. Further, defendant Nos.1 to 5 at the instigation of defendant Nos.6 to 9, have cut and removed 30 Ankole trees, 300 bamboo bushes, 30 Honge trees and 30 coconut trees etc., and the defendants are running a tractor and jeep by forming an unlawful assembly in the suit schedule property. Hence, a cause of action arose for the plaintiffs to file a suit for declaration and mandatory injunction.

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Defendant Nos.1 to 5 appeared through their counsel but they did not file a written statement. Defendant

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Nos.6 to 9 have filed the written statement. It is contended that there exist a cart track from time immemorial and the husband of plaintiff No.1 and father of defendant Nos.6, 7 and husband of defendant Nos.8 and 9 are enjoying the same even when they

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were in a joint family. There was a partition effected between Ningaiah and his brother Boraiah i.e., husband of plaintiff No.1, by executing a registered partition deed dated 15.08.1965. In the said partition, Ningaiah and Boraiah got properties in Survey No. 54/1, wherein Ningaiah got 2 acres 6 guntas towards the western portion and Boraiah got properties on the eastern portion. After Ningaiah's death, the defendants being the legal heirs of deceased Ningaiah are making use of the said cart track and perfected the right of easement by prescription and contractual nature, which is now more than 38 years. The defendants have no other alternative way to access their land, except the suit track. It is also contended that the

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defendants had filed a suit against Boraiah in O.S.No.559 of 1994 regarding the cart track measuring approximately east-west 100 yards; northsouth 3 yards and the said suit was decreed and thus, the present suit is hit by the principle of res judicata .

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Hence, on these grounds, prays to dismiss the suit.

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The trial court, based on the pleadings of the parties framed the following issues.

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1) Whether the plaintiff proves that they are the absolute owners of the suit schedule property?

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2) Whether the plaintiffs prove that there is no cart track or any other pathway in the suit schedule property for the defendants?

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3) Whether the plaintiff proves that the defendants have cut and removed the standing trees and also crop in the suit schedule property about 3 months back and caused loss amounting Rs.50,000-00 to the plaintiffs?

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4) Whether the plaintiffs prove that they are entitle for damages amounting to Rs.10,00000 from the defendants?

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5) Whether the plaintiffs are entitle for the relief of mandatory injunction for removing the alleged cart tack or pathway in the suit schedule property if the Court comes to the conclusion that the defendants have formed the cart track or pathway in the suit schedule property?

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6) Whether the defendants prove that there is a cart track in the suit schedule property and they are using the same from the time immemorial and they have perfected their right by way of easement of prescription?

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7) Whether the suit is bad for non-joinder of necessary parties and mis-joinder of unnecessary parties?

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8) Whether the suit is properly valued and the Court fee paid is sufficient?

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9) Whether the suit is hit by principle of resjudicata?

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10) What order and decree?

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The plaintiffs, to substantiate their case, plaintiff No. 1 was examined as PW.1, examined two witnesses as PW.2 and PW.3 and marked 24 documents as Ex.P1 to Ex.P24. In rebuttal, defendant No.6 was examined as DW.1, examined two witnesses as DW.2 and 3 and marked 8 documents as Ex.D1 to Ex.D8. The trial Court, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence, answered issue Nos. 1, 3, 4, 7 in the negative, issue Nos. 2, 5 and 6 do not survive for consideration, issue Nos.8 and 9 in the affirmative, issue No.10 as per the final order. Consequently, the suit of the plaintiffs was dismissed vide judgment and decree dated 08.10.2007.

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The plaintiffs, aggrieved by the dismissal of the suit in O.S.No.217 of 2001, preferred an appeal in R.A.No.340 of 2007 on the file of learned I Additional District Judge, Tumkur.

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The first appellate court, after hearing the learned

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

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1) Whether the plaintiffs are the owners of the suit schedule property?

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2) Whether the defendants prove the existence of cart track in the land of the plaintiffs on the southern edge of the suit schedule property?

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3) Whether the judgment and decree of the trial Court is needs to be interfered with by the hands of this Court?

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4) What order?

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The first appellate Court, after re-appreciating the entire evidence on record answered point Nos.1 and 2 in the affirmative, point No.3 partly in the affirmative, point No.4, as per the final order. The appeal was allowed in part and the first Appellate Court modified the judgment and decree passed by the trial Court, wherein it is declared that the plaintiffs are the owners and in possession of the suit schedule property and the

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defendants were restrained from interfering into the possession of the plaintiffs over the suit schedule property except existing cart track and the suit is partly decreed and rest of the judgment passed by the trial Court dismissing the claim of the plaintiffs to declare that there is no cart track in the suit schedule property was confirmed.

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The plaintiffs, aggrieved by the portion of the judgment passed by the first appellate court, confirming the dismissal of the suit insofar as declaration that there is no cart track in the suit schedule property, filed this Regular Second Appeal.

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None appears for the contesting defendants.

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Heard the learned counsel for the plaintiffs and learned Additional Government advocate for respondent Nos. 1 to 5 and 10.

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Learned counsel for the plaintiffs submits that the first appellate court has committed an error in confirming

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the dismissal of suit regarding the cart way. He submits that cart way is on the edge of the land and it doesn't passes through the middle of the suit schedule property. He submits that both courts below have not properly appreciated the entire evidence on record and committed an error in dismissing the suit for declaration that there exists no cart track. The impugned judgments and decree passed by the courts below are arbitrary and erroneous. Hence, on these grounds, prays to allow the appeal.

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Per contra , learned Additional Government Advocate supports the impugned judgments and prays to dismiss the appeal.

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This Court vide order dated 25.04.2019, admitted the appeal to consider the following substantial question of law:

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"Whether right of easement could be claimed in the property adjoining the

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original space when the former becomes unfit for usage?"

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Reg. Substantial question of Law:

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There is no dispute regarding the relationship between

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the parties to the suit and also there was a partition between Boraiah and Ningaiah and in the said partition, and the property in suit survey number fell to their respective shares. Based on the registered partition deed, Boraiah and Ningaiah were in possession of their respective portions in the suit survey number. There is a cart track in the land of the plaintiffs. The plaintiffs tried to obstruct the cart way. Hence, the defendants filed a suit in O.S.No.559 of 1994 for declaration to declare that the plaintiffs (therein) have right of easement over the suit schedule cart track to go to his land and back for himself, his servants, cattle and cart over the suit schedule cart track and perpetual injunction restraining the defendants from obstructing the said

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cart track by any means for the use of the plaintiffs, his servants, cattle and cart.

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In the said suit, the plaintiffs herein filed a written statement. The trial court after full-fledged trial decreed the suit of the plaintiffs (therein) i.e., the defendants herein vide judgment dated 01.04.2000, declaring that the plaintiffs have a right of easement over the suit schedule cart track to go to his land and to come back for himself, his servants, cattle and cart over the suit schedule cart track and the defendants are restrained by means of permanent injunction from obstructing the said track by any means for the use of the plaintiffs, his servants etc. The judgment and decree passed in O.S.No. 559 of 1994 has attained a finality. When there is a decree in favour of the defendants herein regarding the declaration that they have got a right of easement over the suit schedule cart track to go to their land, the plaintiffs subsequently cannot seek a declaration that there

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exists no cart track. The relief sought by the plaintiffs regarding the declaration that there is no cart track in the suit land is contrary to the judgment rendered in O.S.No.559 of 1994. The judgment and decree passed in O.S.No.559 of 1994 is binding on the plaintiffs.

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The trial Court as well as the first appellate court considering the judgment and decree passed in O.S. No.559 of 1994 have rightly passed the impugned judgments. I do not find any error in the impugned judgments. There is no dispute regarding the right of easement could be claimed in the property adjoining the open space. To consider the case on hand, it is necessary to examine Section 13 of the Indian Easements Act, 1882, which reads as under:

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"13. Easements of necessity and quasi

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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 wsubject of the transfer or bequest, the transferee

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or legatee shall be entitled to such easement; or (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; (c) if an easement in the subject of the transfer or bequest is necessary for enjoying 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

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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."

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Section 13 of the Indian Easements Act, provides that if the alternative transit is not available, then the party can claim a right of easement.

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Admittedly, in the instant case, the competent Civil Court has already declared that the defendants have got right of way in the suit cart track. Considering the decree passed in O.S.No.559 of 1994, the substantial question of law does not survive for consideration.

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