S. MADAIAH v. SIDDANAIKA — 1995 DIGILAW 419 (KAR)

H. N. TILHARI, J. ( 1 ) THIS is plaintiffs second appeal. This appeal arises out of judgment and decree dated 30-7-1988 delivered by Sri K. L. Anantharaman, judge of the court of small causes, mysore, as the first appellate court allowing the defendant's first appeal from the judgment and decree dated 19-7-1986 delivered by munsiff, t. Narasipura, in o. s. No. 496 of 1985, whereby the trial court had decreed the suit but the appeal court has set aside the judgment and decree of the trial court and dismissed the plaintiffs claim in the suit. The facts of the case in brief are: ( 2 ) THE plaintiff-appellant filed the suit for seeking decree for declaration to the effect that there exist a passage measuring 4 1/2 feet east to west and 120 feet north to south in between the houses of the plaintiff and defendant, and seeking decree for permanent injunction restraining the defendant from putting any construction on the alleged passage. According to the plaintiffs case, plaintiff is the owner of the house schedule-a and defendant is the owner of house schedule-b. That in between two houses, according to the plaintiffs case, there exists a lane measuring 4 1/2 feet east to west and 120 feet north to south. Plaintiff claimed that, the said land was being used by the plain tiff-appellant and defendant-respondent as common passage for the past 40 years and that the plaintiff used to take his cattle through this space as well as the members of the family have also used this land as common passage. According to the plaintiff, the house, of the defendant being in dilapidated condition and almost all the walls have collapsed, except for a portion of the northern wall and defendant took the construction work and in that process he is attempting to enclose about 3 1/4 x 120 feet space which according to the plaintiff was part of common passage. The plaintiff took various pleas that the defendant had not obtained the necessary licence from the village panchayat and it was further alleged that the construction or enclosure of the space will deprive the plaintiff of his right of way to use the common passage. No doubt, in para 5 it has been mentioned "defendants ACT of enclosing would amount to depriving the plaintiff easementary right to use the common passage". No doubt, in para 5 it has been mentioned "defendants ACT of enclosing would amount to depriving the plaintiff easementary right to use the common passage". So, plaintiff sought the relief for decree and injunction. ( 3 ) THE defendant denied the plaintiffs case except the one thing that the plaintiff is the owner of schedule-a property and defendant himself is the owner of schedule-b property. The defendant denied that, there is a common passage alleged or claimed by the plaintiff-appellant. The defendant contended that, the plaintiff has constructed the house to the whole extent of the suit property without leaving an inch of the space. Defendant further alleged that his house was constructed 15 years ago and the site of the defendant was being used by the defendant for the purpose of tying catties and storing hay-stack. The defendant has asserted and alleged in written statement that he will not put any construction until he got the valid licence from the panchayat and he has only dug drain on eastern and western side to take out the foundation stones of the dilapidated house and the drain dug by defendant was within his own site. The defendant asserted that, the plaintiff has no right whatsoever in and around the defendant's land nor any right of way as easement. ( 4 ) ON the basis of the pleadings of the parties, the trial court framed the following issues: i) whether the plaintiff proves that there is a vacant space measuring 4 1/2 feet east to west and 120 feet north to south in between his house and the house of defendant? Ii) does he further prove that both himself and the defendant was using the said space as common passage since 40 years as stated in his plaint? Iii) whether the plaintiff proves that the defendant encroached upon the said space to an extent of 3 1/2 feet east-west and 120 feet north-south as stated in para 5 of the plaint? Iv) whether the defendant proves that the suit is not maintainable as contended in his written statement? V) what decree? Iii) whether the plaintiff proves that the defendant encroached upon the said space to an extent of 3 1/2 feet east-west and 120 feet north-south as stated in para 5 of the plaint? Iv) whether the defendant proves that the suit is not maintainable as contended in his written statement? V) what decree? ( 5 ) ON basis of the evidence lead by the parties, the learned munsiff who tried the case, decreed the plaintiffs suit, after having answered issue numbers 1, 2 and 3 in favour of the plaintiff, that is, the trial court after having held that there is a vacant space measuring 4 1/2 feet x 120 feet in between the houses of the plaintiff and the defendant, and further that, the plaintiff proves that the plaintiff and defendant used the said space as common passage for the last 40 years and that the plaintiff further proves that defendant encroached upon the space to the extent pleaded by the plaintiff, decreed the plaintiffs suit. ( 6 ) THAT having felt aggrieved from the trial court degree granted by the learned munsiff that defendant preferred regular appeal viz. , r. a. No. 139 of 1987. The lower appellate court i. e. , the civil judge/judge of the court of small causes, mysore, allowed the defendant's appeal and set aside the judgment and decree of the trial court and dismissed the plaintiffs claim in the suit. The lower appellate court held that, plaintiff has failed to prove that he had left an inch of space on any of the sides of his property. The lower appellate court held that the plaintiff failed to prove that the pre-existed lane in his site or vacant site used as common passage. In other words, the lower appellate court found and held that the plaintiff failed to prove existence of 4 1/2 feet x 120 feet space and use of the same as a common passage for the last forty years. It further held that the frame of the suit itself was not proper and the suit as framed was not maintainable and that the plaintiff was not entitled to get the reliefs claimed. It further held that the frame of the suit itself was not proper and the suit as framed was not maintainable and that the plaintiff was not entitled to get the reliefs claimed. The lower appellate court further opined that, plaintiff had not brought the suit for injunction on the basis of his easementary right as he has not pleaded the acquisition of easementary right by prescription in the light of Section 15 of easement ACT and so, it allowed the appeal and set aside the trial court decree, but it kept it open that if plaintiff is so advised, he is at liberty to bring a fresh suit on the basis of his easementary right of way. ( 7 ) HAVING felt aggrieved from the judgment and decree by the lower appellate court, the plaintiff-appellant has come up with this second appeal. The learned counsel for the appellant urged that, in a suit for decree and permanent injunction it is not necessary that a formal decree for declaration of rights be claimed. He submitted that, relief for injunction can only be granted on the establishment of certain right of a person which the person that is the plaintiff himself alleged in the plaint. No doubt, the allegation or assertion of specific right and apprehension of its violation or breach in the plaint may require the plaintiff in course of trial to establish such right. But, mere failure to claim declaratory decree cannot be a bar to the plaintiffs claim for decree for injunction. The learned counsel for the appellant further submitted that a declaration had been claimed that the land in suit is a common passage and for having been used as a common passage in addition to decree for permanent injunction restraining the defendant from creating any obstruction in the plaintiff's user of that land as common passage. The learned counsel submitted that, as such the lower appellate court erred in law in holding the plaintiffs suit will not maintainable. The learned counsel submitted that, as such the lower appellate court erred in law in holding the plaintiffs suit will not maintainable. ( 8 ) THERE appears substance in the contention of the learned counsel for the appellant and in a suit for injunction it is not necessary to claim a declaratory decree and a suit for injunction cannot be thrown out on the ground that declaratory relief has not been claimed provided the plaintiff in the plaint alleges and assert his right or title which he claims in respect of the property and establishes in the course of trial that right. In addition to assertion of that right, plaintiff has also to assert that defendant is committing breach or there is apprehension of that right being violated. In that case, it is beyond doubt that merely because a formal decree of declaration of right has not been claimed, the suit cannot be thrown out. When I so observe, I find support from the decision of the lordship of Supreme Court in the case of Corporation of the City of Bangalore v. M. Papaiah and another. ( 9 ) A perusal of paragraph 2 of the city corporation of bangalore's case, supra reveals that, similar objections have been raised in a suit for injunction. Para 2 of that judgment reads:" the appellant denied the claim of the plaintiffs and asserted its continuous possession since 1927 and also pleaded that the suit was not maintainable as the relief claimed was limited to permanent injunction without asking for a decree to declare the plaintiffs title". ( 10 ) THE court further observed in paragraph 4 as follows:" so for the scope of the suit is concerned, a perusal of the plaint clearly indicates that the foundation of the claim of the plaintiffs is the title which they have pleaded in express terms in para 2 of the plaint. It has been stated that after cancelling the acquisition of the suit property for a burial ground the land was transferred to guttahalli hanumaiah under g. o. No. 3540 dated 10-6-1929 on payment of upset price". ( 11 ) IN paragraphs 3 and 5 the plaintiffs have reiterated that the first plaintiff was the owner in possession. It is well established that deciding the nature of the suit the entire plaint has to be read and not merely the relief portion of the plaint. ( 11 ) IN paragraphs 3 and 5 the plaintiffs have reiterated that the first plaintiff was the owner in possession. It is well established that deciding the nature of the suit the entire plaint has to be read and not merely the relief portion of the plaint. The present case does not leave any manner of doubt that the suit was filed for establishing title of the plaintiffs and on that basis getting an injunction against the appellant corporation. The lordship of the Supreme Court thereafter quoted certain observations of the judgment of the High Court as under: "the judgment shows that the High Court has made several inconsistent observations. By way of illustration, the following passage at page 13 of the paper book may be seen:"this court must accept this argument in view of the circum stance that there was no issue involving the title. The title has been satisfactorily established by the appellants and the respondent has failed to establish its title. Therefore, the first appellate court is wholly wrong in raising issues which did not arise in the case and reaching the conclusion that the suit was bad since the appellants did not seek the relief of declaration of title and possession". we do agree that the suit cannot be dismissed on the ground that the relief of declaration of title and possession has not been specifically mentioned in the plaint". ( 12 ) THIS court has also in the Case of Putte Gowda v. Ramegowda, after referring to the material provisions viz. , sections 34, 37, 38, 40 and 41 of the Specific Relief Act, as well as the above mentioned decision of the Supreme Court in corporation of city of bangalore's case and the decision of Allahabad High Court in the case of Prabhu Dayal v. Gaon Samal and the decision of the Bombay High Court in the case of Smt. Indumatiben Chimanlal Desai v. Union of India and another, taken the view that a suit for injunction cannot be dismissed simply on the ground that the plaintiff has not claimed specifically a declaratory decree in the relief clause declaring his right provided the plaintiff has asserted his right in the body of the plaint which he claims and which he claims to be being violated or which he apprehends to be violated by the action of the defendants. ( 13 ) THEREFORE, as a bare proposition of law, the contention of the learned counsel for the appellant is concerned, a suit for injunction cannot be dismissed simply on the ground that relief for declaration not specifically claimed has got some substance but, as regards the present case the lower appellate court has not approached the plaintiffs case like that. The lower appellate court has taken the view that plaintiff has not alleged or pleaded the acquisition of right by way of prescription under Section 15 of the easement ACT nor has alleged the necessary ingredients for acquisition of easementary right by way of prescription. I have perused the plaint. I also find that the lower appellate court was justified in making these observations. Bare mention in paragraph 5 of the plaint that the defendant has interfered with the right of easement would not be a sufficient plea. The plaintiff should have asserted the right of easement by acquisition or by prescription keeping in view the necessary ingredients thereof and further encroachment thereof. However the only claim is that, the land in dispute is the common passage belonging to the parties, and the plaintiff had to prove that the part of the land in dispute is one belonging to the plaintiff and part to the defendant. On this aspect of the matter, the lower appellate court has considered and examined evidence and has made a mention that he has not left a single inch of the land out of the area belonging to him for that purpose. So, it recorded a finding that, plaintiff has failed to prove that the land belongs to both parties and by the plaintiff neither necessary ingredients of easement of necessity nor of right of easement by prescription had been pleaded. It opined that, plaintiff had not asserted the right of easement in the plaint. No doubt, in the judgment the lower appellate court mentioned that the plaintiff has not claimed declaration of easementary right. In my opinion, the intention of court below appears to be that plaintiff has not asserted the right of easement if the lower appellate court intended to hold that as no specific claim of relief or decree for declaration of easementary right had been made so suit was not maintainable then no doubt, in that case the lower appellate court was wrong. But, when plaintiff has not made out any case in the plaint for easementary right by prescription or otherwise, there was no question of it being adjudged, as no issue was got framed by the plaintiff when the issues were framed. It would have been open to the petitioner to make an application under Order 14, Rule 5 for that purpose. The application for additional issues would have futile as there was no specific pleading in regard thereto and as such, if no issues were framed, the trial court did not commit any mistake or error because if the plaintiff himself did not plead then issue did not arise. That as such, the lower appellate court has itself kept it open and granted liberty to the plaintiff-appellant to file a fresh suit, if he is so advised on the basis of easementary right. Thus considered in my opinion, there is no need to interfere with the judgment and decree of the lower appellate court. It is open to the plaintiff-appellant as observed by the lower appellate court to file a fresh suit on the basis of the easementary right if any he has got and if any he establishes thereon. With these observations, the second appeal is hereby dismissed. --- *** --- .