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2008 DIGILAW 139 (KAR)

Muddappa v. Mallappa (Mallaiah)

2008-02-26

D.V.SHYLENDRA KUMAR

body2008
JUDGMENT This second appeal is by the legal representatives of defendant in OS No. 92 of 1987, on the file of Civil Judge (Jr Dn) & JMFC, Malavalli, who are aggrieved by the judgment and decree passed by the lower appellate Court allowing the appeal and decreeing the suit, though the suit had been successfully resisted by the defendant before the trial Court and had been dismissed. 2. The suit of the plaintiffs-four in number - was for a declaration that the suit schedule property measuring about 20’x400’ is a road which is meant for better enjoyment of the properties of the plaintiffs, in the sense, this stretch of land acts as an access to the properties of the plaintiffs on one side of their properties and that such a manner of user of the suit schedule property was in vogue ever since the year 1940 when two to the plaintiffs purchased their respective portions from their common vendor one Kenchaiah Naik, but the defendant who had purchased the property along on the northern side of the properties of the plaintiffs, had started obstructing the plaintiffs from making use of the suit schedule property; that having improved the said stretch of land by forming a road, the defendant had started to prevent the plaintiffs from making use of the suit schedule property, which necessitated for the plaintiff to file the suit for a declaration that the suit schedule property is a road for the better enjoyment of the properties of the plaintiffs and for a consequential relief of injunction. The plaintiffs later by way of an amendment had also sought for a mandatory injunction to direct the defendant to remove some coconut plants, which the defendant had planted in the suit schedule property. 3. The defendant on being notified contested the suit. The case of the defendant is that the suit schedule property is admittedly in the ownership of the defendant and the plaintiffs having not claimed either any easementary right to have access to their lands and more over the plaintiffs having separate access to their respective lands on the southern side of their properties, the prayer as sought for in the suit is not tenable and the suit is liable to be dismissed. The defendant has also pleaded that there was no road as claimed by the plaintiffs measuring 400 feet north-south and 20 feet east-west. The defendant has also pleaded that there was no road as claimed by the plaintiffs measuring 400 feet north-south and 20 feet east-west. It is also pleaded that the fourth plaintiff himself had entered into an agreement to sell a portion of the land in Sy No. 828/1A in favour of the defendant and the boundary description of Sy No. 828/1A in that agreement did not indicate the existence of any road as claimed in the plaint and that it is a strong piece of evidence to indicate that there is no road as claimed by the plaintiffs. The defendant accordingly sought for dismissal of the suit. 4. In the light of such rival pleadings, the trial Court framed the following issues: 5. On the basis of such issues, the parties went to trial. On behalf of the plaintiffs, four witnesses were examined and Ex.P 1 to 11 were marked. Plaintiffs 4, 1 and 2 were examined as PWs 1 to 3 respectively and the Court Commissioner was examined as PW4. Significant amongst the documents produced on behalf of the Plaintiffs were Ex P4 and 8 - two sale deeds dated 19-4-1940, executed in favour of the predecessors - in - title of two of the plaintiffs by the common vendor Kenchaiah Naik and another sale deed dated 16-6-1986 (Ex.P1) executed in favour of fourth plaintiff. The report of the Court Commissioner was marked as ExP9, the rough sketch prepared by the commissioner was marked as Ex.P10. Ex.P11 is the mahazar. 6. On behalf of the defendant, apart from the original defendant being examined as DW1, his son Parashivamurthy was examined as DW2. ExD1 and 2- two certified copies of sale deeds dated 28-5-1940 and 7-5-1984, under which the defendant claim right, title and interest in SyNo. 828/1B measuring 1 acre 15 guntas and Sy No. 828/1A measuring 1 acre 16 guntas - were marked. 7. The learned judge of the trial Court, on appreciation of the oral as well as documentary evidence, was of the view that the plaintiffs were not entitled for relief of mandatory injunction and accordingly answered the issues. The learned judge of the trial Court was of the view that the so-called road was only within the property of the defendant and therefore the plaintiffs cannot claim any right over the same. Consequently, the suit was dismissed. 8. The learned judge of the trial Court was of the view that the so-called road was only within the property of the defendant and therefore the plaintiffs cannot claim any right over the same. Consequently, the suit was dismissed. 8. Aggrieved by this judgment and decree, the plaintiffs appealed to the lower appellate Court, contending, inter alia, that the trial Court has not properly appreciated the documentary evidence on record; that the learned judge of the trial Court has not given due importance nor applied the legal presumption in respect of the documents which are more than 35 years old; that the original vendor of the parties namely Kenchaiah Naik having made provision for the road for the benefit of the purchasers of his land, has not been properly appreciated; that the report of the ADLR describing the suit schedule property as bandidari has not been properly appreciated, but the learned judge of the trial Court has concluded that there is no road and therefore the judgment and decree passed by the trial Court was not tenable etc. 9. In the light of such contentions and the arguments addressed on behalf of the parties, the lower appellate Court has formulated the following points : 1. Whether the plaintiffs prove the existence of old road having the width of 20’ and length of 400’ on the northern portion of their house site properties? 2. Whether the plaintiffs prove that the said road portion marked as ABCD in the plaint sketch was meant for better enjoyment of their house site properties? 3. Whether the plaintiffs prove that the defendant planted coconut saplings during the pendency of suit, violating the Court direction? 4. Whether the impugned judgment & decree dtd. 17.4.99 in OS 92/97 passed by the learned CJ (Jr.Dn.) Malavalli, is bad on any of the grounds urged in the appeal memorandum? 5. To what order or relief, the parties are entitled? 10. 4. Whether the impugned judgment & decree dtd. 17.4.99 in OS 92/97 passed by the learned CJ (Jr.Dn.) Malavalli, is bad on any of the grounds urged in the appeal memorandum? 5. To what order or relief, the parties are entitled? 10. The learned Judge of the lower appellate Court reversed the finding recorded by the trial Court as to non-existence of the old road, but concluded that there existed a pathway of the width of 12’ as against the width of 20 feet claimed by the plaintiffs, and also held that such a pathway was also there for the beneficial enjoyment of the house sites of the plaintiffs, but held that the defendant having not violated any Court order, it is not proper to issue a mandatory injunction for removal of coconut saplings, which had been planted over a period of time and thought it sufficient to declare that the defendant cannot claim ownership of the trees and accordingly allowed the appeal and decreed the suit, holding that the road with the width of 12 feet x 441 1/2 feet is to be declared as an area meant for the better enjoyment of sites of the plaintiffs. The defendant was also restrained from interfering with the plaintiffs’ use of this road area, but did not grant them mandatory injunction for removal of trees. 11. It is aggrieved by this decision of the lower appellate Court, the legal representatives of original defendant in the suit have approached this Court by filing this second appeal under Section 100 CPC. 12. While admitting this appeal, this Court had formulated the following questions of law as arising for determination in this second appeal : (1) Whether the lower Appellate Court would have decreed the suit of the defendant/plaintiff without there being pleadings that is required for the purpose of holding that the plaintiffs have got easementary right over the suit road? (2) Whether the Court below could have decreed the suit without there being any evidence to prove that there existed the road and whether the said road is a public road or a private road? (3) Whether the Court below could have relied upon only the Commissioner’s report to decree the suit? 13. (2) Whether the Court below could have decreed the suit without there being any evidence to prove that there existed the road and whether the said road is a public road or a private road? (3) Whether the Court below could have relied upon only the Commissioner’s report to decree the suit? 13. Appearing on behalf of the appellants-defendant, Sri B. C. Rajeeva, learned Counsel for the appellants, has vehemently submitted that the learned Judge of the lower appellate Court has overlooked clear admissions made by the plaintiffs in their evidence that they have separate access to their properties on the southern side of their properties; that it was not as though the road formed by the defendant in his property was not the only approach pathway to the properties of the plaintiffs; that the plaintiffs having not sought for a declaration of either prescriptive right or for their right of easement, the suit as framed was not even tenable and at any rate the two possible relief which the plaintiffs could have established being not sought for in respect of any portion of the land admittedly in the ownership of the defendant, the suit should inevitably fail and the learned judge of the lower appellate Court has committed a serious error in law in decreeing the suit. 14. Elaborating the submission, Sri Rajeeva has drawn my attention to the deposition of PW2, wherein the witness has spoken about the formation of the road by the defendant himself, and submits that this is a clear piece of admission to indicate that the road is not in existence before that; that it had been formed only by the defendant and for his benefit in his land and therefore the plaintiffs could not have laid any claim over it. 15. 15. Attention is also drawn to Ex.D2 - sale deed dated 7-5-1984 executed in favour of the defendant in respect of land bearing Sy No. 828/1A by Madappa and Mahadeva, to which the fourth respondent Siddalingappa himself was a witness and this document not having indicated the existence of any common pathway or road as claimed by the plaintiff on the southern side of the property purchased by the defendant, the plaintiffs’ claim was clearly a false case and this combined with the admission of this very witness, who had indicated that he had joined as one of the plaintiffs at the behest of the first plaintiff, which should also indicate that there was no genuine cause of action for the plaintiffs, but a trumpeding cause of action only to harm the defendant who had made substantial improvements in the land purchased by him. 16. Per contra Sri M. S. Purushothama Rao, learned Counsel for the respondents-plaintiffs has supported the judgment and decree of the lower appellate Court and has drawn attention to the very deposition of the PW2 (first plaintiff), who had answered in the course of cross-examination that there was a fence and after the fence there was a common road on the southern side of the plaintiffs’ properties in between the property of the defendant and the fence and this evidence clearly supports the case of the plaintiffs. It is also contended that the mere fact the defendant might have improved the existing parhway and road does not necessarily lead to the inference it is only for his own benefit and that does not in any way detract the right of the plaintiffs to use the same portion as an approach pathway / road to have access to their properties from the northern side. 17. 17. Learned Counsel for the respondents has drawn attention to Ex.P4 and 8 - sale deeds in favour of the plaintiffs and of the year 1940 executed by the common vendor Kenchaiah Naik, which clearly recites the existence of the pathway on the northern side of the property, sold under these documents and if this pathway was in existence even in the year 1940, the defendant cannot contend that there was no pathway as of now, particularly having purchased the land situated to the north of the pathway through a recent sale deed dated 7-5-1984 (Ex.D2) and cannot obstruct the plaintiffs from making use of this pathway. What is submitted is that the documentary evidence clearly clinches the issue in favour of the plaintiffs to make good the existence of parhway. 18. Though it is countered by Sri Rajeeva, learned Counsel for the appellants that mere existence of a pathway on the north of the plaintiffs’ properties, by itself does not give a right to the plaintiffs to make use of this pathway nor can it be said that it is of the width of 20 feet as claimed by the plaintiffs, the factum of use of this parhway from the year 1940 is more than probablized by the evidence, oral as well as documentary, and the fact that the plaintiffs’ predecessors had retained the parhway along the northern side of the property sold to the plaintiffs and in such documents there is clear indication of the pathway in between, is good enough material to accept the version of the plaintiffs that even the original vendor had made provision for the parhway which, if at all, can be for the benefit of the plaintiffs also, as, if it should have been for the benefit of the vendor alone, there is no reason to indicate the existence of pathway in the sale deeds. 19. 19. This factum, coupled with the enjoyment of the pathway over a period of time and the plaintiffs having experienced the obstruction and detraction of this pathway only on and after 1984 when the defendant purchased the property lying on the northern side of the properties of the plaintiffs, clearly probablizes that the plaintiffs have encountered obstruction only in or around the time of filing of the suit in the year 1987 and that they had no such impediment from 1940, very clearly goes to establish that the plaintiffs are entitled for the declaration as sought for and a declaration of such nature has been rightly granted by the lower appellate Court. 20. Now coming to the question as to whether such a declaration could have been given without there being either a plea claiming an easementary right over the suit schedule property or a plea for prescription of right in respect of this portion, I am of the view that it is definitely not a right of easement and rightly no such prayer was sought for, because at the time when the plaintiffs, vendor sold the property he himself indicated that there was a pathway on the northern side of the property sold by him to the plaintiffs’ predecessors-in-title. If so, the vendor himself did not assert any right or ownership in the property, but had treated it as a common land. Mere fact that the defendant might have acquired ownership of this land in the year 1984 does not give him any right over such common pathway, which had been left as such by the original owner of the property and to make the defendant owner of this pathway also. The fact that the defendant claimed ownership of this property only on an after the year 1984 very clearly indicates such position was not to the knowledge of the defendant prior to this date and at any rate the vendor of the defendant conveyed only such right which he could have had and which he could have derived from his vendor and if the defendant’s vendor had not acquired such right, there is no question of conveying such ownership in favour of the defendant in respect of the pathway being treated as part of the property of the defendant, in which event, alone the claim for any easementary right, perhaps would have been justified. 21. 21. Even with regard to the prescriptive right, the case of the plaintiffs was that the common pathway was for the beneficial use of the plaintiffs and if a prescriptive right suould be claimed, it can be a prescription for the exclusive use and benefit of the person claiming. It was never the case of the plaintiffs that any one of them have acquired exclusive right of use or title by any other mode, adverse to the interest of the defendant. The case of the plaintiffs was that in terms of the sale deeds executed in their favour, they have been enjoying the pathway as a pathway for approaching their sites/house from it’s northern side. That plea having been established, the plaintiffs are entitled for declaration as sought for and I am of the view that the learned judge of the lower appellate Court has rightly decreed the suit. 22. However, Sri Rajeeva, learned Counsel for the appellants would nevertheless contend that the plaintiffs are not totally innocent, as they have made out a case, but they are in fact violators for having encroached five of land belonging to the defendant and if not at least into the pathway and to this extent there should be suitable action against the plaintiffs. It is also submitted that the learned judge of the lower appellate Court has committed a mistake in concluding that the trees planted by the defendant cannot be said to be in the ownership of the defendant. 23. It is also submitted that the learned judge of the lower appellate Court has committed a mistake in concluding that the trees planted by the defendant cannot be said to be in the ownership of the defendant. 23. While the question of encroachment of five feet of land into the common pathway as claimed by the defendant, is not an issue which arises in this case and the defendant himself has indicated that he had reserved the right to pursue such cause of action, he is at liberty to move in such a way, in so far as the declaration granted by the lower appellate Court in respect of the trees is concerned, while it appears that refusal to grant a mandatory injunction is only to save the trees from cutting down, that it will not be in favour of any one, submission of Sri Purushothama Rao, learned Counsel for the respondents-plaintiffs to the effect that notwithstanding, the plaintiffs will not lay claim to any of the usufructs from these trees and that this should put the defendant at ease and submits that the plaintiffs are content to be allowed the use the common pathway now measuring 12’ width as found by the Commissioner, and that they are not interested in making any further claim either for ownership of the trees or their fruits, what the plaintiffs are permitted is access through the pathway and that will be sufficient and the judgment and decree passed by the lower appellate Court can be read as such. 24. I am of the view that the lower appellate Court which decreed the suit on the basis of the evidence as was available, is very correct also for the reason that the Commissioner’s report did indicate the existence of a road of 12 feet width and mere opinion of the commissioner that this road was inside the property of the defendant cannot make much difference for not decreeing the suit for the reason that it is not the function of the Court Commissioner to pronounce as to who is the owner of which property, but the Commissioner only gives his report on factual position and no opinion is required to be formed by the Commissioner. Whether it is the property of the defendant or otherwise in not a matter for the Court Commissioner to opine and this part of the report of the Court Commissioner does not sustain in law. 25. Having regard to the evidence on record, particularly, Ex.D4 and 8, and the fact that the plaintiff had only this pathway ever since 1940, clearly concludes the case in favour of the plaintiffs for decreeing the suit. Therefore, I am of the view that the decree passed by the lower appellate Court does not call for interference for dismissing the suit. However, the observation as above, in the light of the submissions and the scope of the plaintiffs’ claim, as clarified by Sri Purushothama Rao, learned Counsel for the respondents-plaintiffs, is placed on record. Except for this, in all other respects, the appeal stands dismissed.