Dismissed¶92

Smt K Kalavathi v. Sri Kuber Singh

Karnataka HC14 Jan 2026RFA/231/2011

Case brief

AI extract

What is this about?

Easementary right; suit passage; right of way; landlocked property; sole access/ingress and egress; finality of earlier adjudication binding successors-in-interest; subsequent transferee/purchaser precluded from re-litigation; res judicata effect; admissions in cross-examination in O.S. No.1241/1976; Ex.P-14 deposition of PW-4 L. Munireddy; Ex.P-9 Commissioner's report; obstruction by raising common wall height; declaration of easement with consequential injunction; no rebuttal evidence by defendants; perversity test in Regular First Appeal; Karnataka High Court Bengaluru; O.S. No.1829/1998; O.S. No.1241/1976; R.A. No.182/1976; appeal dismissed.

What did the court decide?

None to the appellant; the Trial Court's judgment and decree declaring the plaintiff's easementary right over the suit passage and granting the consequential injunction stand upheld.

Smt K Kalavathi Vs Sri Kuber Singh — Karnataka HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

None to the appellant; the Trial Court's judgment and decree declaring the plaintiff's easementary right over the suit passage and granting the consequential injunction stand upheld.

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Issue for consideration

Whether the judgment and decree passed by the Trial Court declaring the plaintiff's right over the suit passage and granting consequential injunction restraining defendant No.3 from encroaching upon the suit passage and from raising the height of the common wall suffers from perversity. +1 more

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Court's answer

Despite the adverse adjudication in R.A. No.182/1976, the defendants attempted to re-litigate issues conclusively settled in the earlier round, contrary to the binding findings and their own categorical admissions in O.S. No.1241/1976.

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Ratio / Principle

Present defendants Nos.1 and 2, who were plaintiffs in O.S. No.1241/1976, unequivocally admitted in cross-examination the existence of the suit passage and that the plaintiff's grandfather used it as access to his property; these admissions belie the defence now set up.

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Key takeaways

Ex.P-14, the deposition of PW-4 L. Munireddy (defendants' witness in O.S. No.1241/1976), acknowledges that the plaintiff's ancestors used the passage on the eastern side of the defendants' house for about seven to eight years before the earlier suit, corroborating long, open and continuous use.ratio¶71
The Commissioner's report from the earlier proceedings (now Ex.P-9) fortifies the finding that the suit passage is the only means of ingress and egress available to the plaintiff and his predecessors-in-interest, the plaintiff's property being landlocked.ratio¶73

Detailed headnote1 paragraphs

Karnataka HC (Bengaluru), RFA No. 231 of 2011 (DEC), Justice Sachin Shankar Magadum, 14.01.2026 — Regular First Appeal (under Order XLI Rule 1 r/w Section 96 CPC) by the unsuccessful defendant (subsequent purchaser) against the judgment and decree dated 30.10.2010 of the VII-Addl. City Civil Judge in O.S. No.1829/1998 decreeing declaration of the plaintiff's easementary right over the suit passage (schedule 'C') with consequential injunction restraining encroachment upon the passage and raising of the common wall. Held: the easementary right was conclusively adjudicated in R.A. No.182/1976 arising out of O.S. No.1241/1976, where the appellate Court found the plaintiff's property landlocked/hind-side with no access save the suit passage; that finding, having attained finality, binds the defendants and their successors-in-interest, who are precluded from re-litigating. Corroborated by the defendants' own cross-examination admissions in the earlier suit, deposition Ex.P-14 (PW-4 L. Munireddy) evidencing seven-to-eight years' prior use, and Commissioner's report Ex.P-9 confirming the passage as the sole ingress-egress. No rebuttal evidence was led by defendants 1-2 or defendant No.3. Trial Court's finding free of perversity; Point (i) answered in the negative; appeal dismissed.

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NC: 2026:KHC:2423 RFA No. 231 of 2011

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF JANUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 231 OF 2011 (DEC)

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BETWEEN:

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SMT. K. KALAVATHI W/O SIDDARAMAIAH AGED ABOUT 41 YEARS R/AT NO.18, 4^TH CROSS NEAR GOVT. SCHOOL, SUBEDAR PALYA YESHWANTHPUR, BANGALORE-560 022.

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…APPELLANT

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(BY SRI. K.C. SHANTAKUMAR, ADVOCATE)

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AND:

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Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA

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SRI. KUBER SINGH S/O LATE ANJANI RAM SINGH AGED ABOUT 55 YEARS R/AT NO.25, 3^RD CROSS SUBEDAR PALYA YESHWANTHPURA BANGALORE-560 022.

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SRI. SRINIVASA REDDY S/O LATE NARAYANA REDDY AGED ABOUT 65 YEARS

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SMT. ASHWATHAMMA S/O LATE NARAYANA REDDY AGED ABOUT 70 YEARS

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BOTH ARE RA/T NO.26 3^RD CROSS, SUBEDAR PALYA

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NC: 2026:KHC:2423 RFA No. 231 of 2011

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HC-KAR

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YESHWANTHPURA BANGALORE-560 022.

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…RESPONDENTS

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(BY SRI. H.V. DEVARAJU, ADVOCATE FOR C/R1; V/O DATED 29.11.2012 APPEAL AGAINST R3 IS ABATED AND R2 IS DISMISSED)

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THIS RFA IS FILED U/O-XLI, RULE-1, R/W, SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.10.2010 PASSED IN O.S.1829/1998 ON THE FILE OF THE VII-ADDL. CITY CIVIL JUDGE, DECREEING THE SUIT FOR THE DECLARATION.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by unsuccessful defendant assailing the judgment and decree rendered in OS.No. 1829/ 1998.

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For the sake of convenience, parties are referred to as per their rank before the trial Court

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NC: 2026:KHC:2423 RFA No. 231 of 2011

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HC-KAR

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The facts leading to the case are as under:

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The plaintiff instituted a suit for injunction simpliciter in O.S. No.1829/1998. During the pendency of the suit, the plaintiff sought amendment of the plaint to incorporate the relief of declaration, specifically seeking a declaration of his easementary right over the suit schedule ‘C’ property.

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In the plaint, the plaintiff pleaded that his grandfather, Hanuman Singh, had purchased the schedule ‘A’ property under a registered sale deed dated 12.12.1948, and that the said property subsequently stood transferred in the name of Anjani Ram Singh, the plaintiff’s father. It was further pleaded that the defendants are the owners of schedule ‘B’ property situated on the northern side of the plaintiff’s property and that a passage exists in between the properties belonging to the plaintiff and the defendants.

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NC: 2026:KHC:2423 RFA No. 231 of 2011

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HC-KAR

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The plaintiff specifically averred that disputes

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had earlier arisen in respect of the said passage, pursuant to which the defendants had instituted a suit in O.S. No.1241/1976. Though the said suit was initially decreed,

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the plaintiff’s father, aggrieved by the injunction granted therein, preferred an appeal in R.A. No.182/1976, wherein the appellate Court allowed the appeal and categorically held that the plaintiff’s father had an easementary right over the suit passage and that the said passage constituted the only access available to him. Notwithstanding the finality attained by the judgment in R.A. No.182/1976, the plaintiff alleged that the defendants once again deliberately raised the height of the wall on the northern side of the plaintiff’s property, thereby obstructing free flow of light and air, and also attempted to encroach upon the common passage by extending the common wall, which necessitated the filing of the present suit.

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HC-KAR

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Upon service of summons, defendants 1 and 2 entered appearance and filed their written statement contesting the suit. During the pendency of the proceedings, defendants 1 and 2 brought to the notice of

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the Court that they had alienated the suit property in favour of defendant No.3. In the written statement, the defendants disputed the plaintiff’s claim of easementary right over the suit passage and sought dismissal of the suit.

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Based on the rival pleadings, the Trial Court framed appropriate issues and directed the parties to adduce oral and documentary evidence. The plaintiff examined himself as PW-1 and produced 19 documents in support of his case. The defendants, however, did not choose to lead any rebuttal evidence.

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The Trial Court, upon appreciation of the oral and documentary evidence on record, and more particularly, upon adverting to the findings recorded in

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NC: 2026:KHC:2423 RFA No. 231 of 2011

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HC-KAR

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R.A. No.182/1976 arising out of O.S. No.1241/1976, and

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also placing reliance on the Commissioner’s report secured in the earlier round of litigation marked as Ex.P9, proceeded to decree the suit. The Trial Court held that the easementary right of the plaintiff’s ancestors to use the suit passage stood conclusively adjudicated in the earlier round of litigation and that the judgment in R.A. No.182/1976 having attained finality, was binding on the defendants and their successors-in-interest. Consequently, the suit was decreed, restraining the defendants from putting up any construction in schedule ‘B’ property by encroaching upon the suit passage and from raising the height of the common wall separating schedule ‘A’ and ‘B’ properties.

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Aggrieved by the said judgment and decree, defendant No.3, the subsequent purchaser, has preferred the present appeal.

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HC-KAR

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Heard the learned counsel appearing for the appellant/defendant No.3 and the learned counsel for the plaintiff/respondent No.1. Perused the records.

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The following points would arise for

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consideration:

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"(i) Whether the judgment and decree passed by the Trial Court declaring the plaintiff’s right over the suit passage and granting consequential injunction restraining defendant No.3 from encroaching upon the suit passage and from raising the height of the common wall suffers from perversity?

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(ii) What order?"

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Finding on Point No. (i):

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On a careful and closer scrutiny of the entire material on record, this Court is of the considered view that the defendants, despite having suffered an adverse adjudication in R.A. No.182/1976, have once again attempted to re-litigate issues which stood conclusively

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HC-KAR

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settled in the earlier round of proceedings. Such relitigation is not only contrary to the binding findings recorded therein, but also directly runs counter to the categorical admissions elicited from the defendants themselves in O.S. No.1241/1976.

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This Court, having adverted to the records of the earlier suit, more particularly the depositions recorded in O.S. No.1241/1976, finds that the present defendants Nos.1 and 2, who were the plaintiffs in the said suit, have unequivocally admitted in their cross-examination the existence of the suit passage. They have further admitted that the plaintiff’s grandfather was using the said passage as a means of access to his property. These admissions strike at the very root of the defence now sought to be set up and clearly belie the present attempt to dispute the plaintiff’s easementary right.

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Further, on examination of Ex.P-14, which is the deposition of PW-4, L. Munireddy, examined on behalf

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NC: 2026:KHC:2423 RFA No. 231 of 2011

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HC-KAR

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of the defendants in O.S. No.1241/1976, it is evident that

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even the said witness has acknowledged and admitted that the ancestors of the present plaintiff were using the passage situated on the eastern side of the defendants’ house for about seven to eight years prior to the institution of the earlier suit. These admissions lend strong corroboration to the plaintiff’s case and establish long, open and continuous use of the suit passage.

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Added to this, the Commissioner’s report secured in the earlier proceedings, which is now marked as Ex.P-9, unequivocally reveals that the plaintiff’s property is landlocked and that there is no access to the

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said property except through the suit passage. The said report, which formed part of the evidentiary record in the earlier round of litigation, fortifies the factual finding that the suit passage is the only means of ingress and egress available to the plaintiff and his predecessors-in-interest.

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HC-KAR

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In the backdrop of the dismissal of the suit instituted by the defendants’ predecessors in O.S. No.1241/1976, in view of reversal thereof by the appellate Court in R.A. No.182/1976, the right of the plaintiff and his ancestors to use the suit passage stood conclusively adjudicated on merits. The appellate Court, in the earlier round of litigation, has recorded a clear and categorical finding of fact that the plaintiff’s property is situated at the hind side of the defendants’ property and that the plaintiff has an easementary right to use the suit passage as there exists no other access. The said finding, having attained finality, binds not only the original parties but also their successors-in-interest.

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In the present proceedings, the plaintiff has

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once again placed before the Court credible, cogent and clinching evidence demonstrating the existence and exercise of easementary right over the suit passage much prior to the year 1970. Significantly, neither defendants 1 and 2 nor defendant No.3, the subsequent purchaser,

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HC-KAR

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have chosen to lead any rebuttal evidence to dislodge the overwhelming material produced by the plaintiff. In the absence of any contra evidence, the findings recorded by the Trial Court cannot be faulted.

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This Court is, therefore, of the firm view that the plaintiff’s easementary right over the suit passage stands conclusively determined in the earlier round of litigation and cannot be permitted to be reopened. Defendants 1 and 2, having suffered a binding adjudication, and defendant No.3, being a subsequent transferee, are clearly precluded from re-agitating or relitigating the very same issue. The Trial Court has meticulously examined these crucial aspects and, on proper appreciation of the material on record, has rightly concluded that the plaintiff’s easementary right over the suit passage stands duly established. The said finding does not suffer from perversity or illegality warranting interference in appeal.

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