JUDGMENT : 1. This defendants’ appeal arises out of the judgment and decree dated 8.9.2008 passed by the XIII Additional City Civil Judge, Mayo Hall Unit-1 Bengaluru in O.S.No.15192/2005. The respondent is plaintiff before the Trial Court. Subject matter of the suit is a strip of land described as plaint schedule ‘B’ property, measuring east to west 3’ and north to south 45’ situated at the eastern side of the plaintiff’s property more fully described as plaint schedule ‘A’ property. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court. 2. Plaintiff filed O.S. No.15192/2005 against the defendants for mandatory injunction for removal of the toilets constructed by them on plaint schedule ‘B’ property and for permanent injunction restraining them from interfering with her possession of the said property. 3. Her case in brief is as follows: The defendants’ are the owners of the site and the house thereon which situates on the eastern side of plaint schedule ‘B’ property. Originally plaint schedule ‘A’,’B’ and the defendants properties belonged to one Chandrappa. Smt. Radha Bhaskaran purchased the same under a registered sale deed dated 24.05.1982 from Chandrappa. Smt. Radha Bhaskaran sold plaint schedule ‘A’ property to Shekar Poojary under the registered sale deed dated 9.11.1992. In turn plaintiff purchased the same from Shekar Poojary under a registered sale deed dated 10.09.2003 and in possession and enjoyment of the same as the absolute owner since the time of the purchase. Thus, Smt. Radha Bhaskaran is the common vendor for the plaintiff and defendants. Plaint ‘B’ schedule property is a common passage between plaint ‘A’ schedule property and the property of the defendants’. Plaintiff and her predecessors in title were/are utilizing the ‘B’ schedule property as the access passage for the purpose of maintenance of ‘A’ schedule property. The said passage was left for the beneficial enjoyment of plaint schedule ‘A’ and the defendants’ property and therefore both have common rights over the same. The defendants’ on 5.1.2005 encroached upon the same and has constructed two toilets on the same and thereby obstructed the plaintiff’s enjoyment of the said common passage. Her attempts to get relief through the police went in vain. Thus the suit. 4. The defendants’ on 5.1.2005 encroached upon the same and has constructed two toilets on the same and thereby obstructed the plaintiff’s enjoyment of the said common passage. Her attempts to get relief through the police went in vain. Thus the suit. 4. The defendants’ in their written statement though admitted the ownership of the plaint ‘A’ schedule property but denied that plaint ‘B’ schedule property is the common passage or plaintiff has any right over the same. They contended that their father purchased the property including plaint ‘B’ schedule property under a registered sale deed dated 03.07.1969 from Narayanappa the father of Chandrappa and constructed a house thereon. They contended that they have constructed toilet as long back as in 1981 and the suit is barred by time. They contended that theory of common passage is the invention of the plaintiff. It is contended that the entries to that effect in the sale deeds of plaintiff and her predecessors in title i.e.,hekar Poojary, Smt. Radha Bhaskaran are deceptive manipulations. 5. On the basis of the above pleadings, the trial Court framed the following issues: 1. Whether the plaintiff has a right in getting alleged illegal construction over schedule ‘B’ property removed? 2. Whether the plaintiff proves her lawful possession and enjoyment over schedule ‘B’ property as alleged? 3. Whether the plaintiff proves the alleged obstructions? 4. Whether the plaintiff is entitled to the relief claimed? 5. What decree or Order? 6. Parties adduced evidence. On behalf of the plaintiff she examined her (husband) Special Power of Attorney holder as PW 1 and one witness as PW2 and got marked Exs.P.1 to P.11. The first defendant got himself examined as D.W.1 and got marked Exs. D1 to D.14. 7. The trial Court after hearing both the parties by the impugned judgment decreed the suit on the following grounds; (i) In Ex.P.2 the sale deed in favour of the plaintiff, Ex.P.4 the sale deed dated 9.11.1992 in favour of Shekar Poojary and Ex.P.5 the sale deed dated 27.05.1982 in favour of Smt. Radha Bhaskaran the eastern boundary is shown as 3’ passage; (ii) When defendants father purchased the property under Ex. D1, the vendor continued to be the owner of the remaining (A and B) property on the western side, therefore there was no occasion to show ‘B’ schedule property as common passage; (iii) Exs.P.6 to P.8 photographs and the sweeping admissions of DW.1 show that the defendants have constructed the toilets on ‘B’ schedule property contrary to the approved plan; and (iv) Such construction admittedly obstructs plaintiff from repairing and white washing her house and enjoyment of her property. 8. Sri M. Shiva Prakash, the learned counsel for the defendants assails the sustainability of the impugned judgment and decree on the following grounds; (i) Plaintiff cannot maintain the suit for injunction simplicitor, when the same is sought based on the right of easement without seeking declaration of right of easement; (ii) The trial Court failed to appreciate that in Ex.D.1 sale deed in favour of father of the defendants is earliest in the point of time and in that there is no mention of any common passage on the western boundary; (iii) The trial Court failed to appreciate that the plaintiff did not produce the title deed of Chandrappa s/o Narayanappa to show that there was a common passage on the eastern side which shown as ‘B’ schedule property; and (iv) The trial Court failed to appreciate that the plaintiff neither examined vendor Chandrappa nor produced any city survey sketch to prove existence of the passage. In support of his arguments he relies upon the following judgments (i) D. Ramanatha Gupta -vs- S. Razaack. AIR 1982 Karnataka 314 (ii) Spring Borewells Co. Pvt. Ltd. -vs- Union of India Ministry of Defence A.K. Kapila Station Commandant Law (KAR) 2012 page 898 (iii) Bachhaj Nahar -vs- Nilima Mandal and Another (2008) 17 SCC 491 . 9. As against that Sri. AIR 1982 Karnataka 314 (ii) Spring Borewells Co. Pvt. Ltd. -vs- Union of India Ministry of Defence A.K. Kapila Station Commandant Law (KAR) 2012 page 898 (iii) Bachhaj Nahar -vs- Nilima Mandal and Another (2008) 17 SCC 491 . 9. As against that Sri. K.P. Bhuvan, the learned counsel for the plaintiff in his arguments supports the impugned judgment on the following grounds; (i) Section 39 of the Specific Relief Act, provides for maintaining suit for mandatory injunction simplicitor without seeking the declaratory relief of right of easement; (ii) In Ex.P2, P4 and P5 the sale deeds in favour of the plaintiff, her vendor Shekar Poojary and his vendor Smt. Radha Bhaskaran show that the plaint ‘B’ schedule property is the common passage since prior to 1982 and they are not challenged; (iii) The omission of the word ‘common’ in Exs.P2, P.4 and P.5 instead of common passage is due to inadvertence, and the same does not enure to the benefit of the defendants’ to contend that there is no common passage; and (iv) The photographs and the admission of D.W.1 themselves show that the defendants’ have constructed the toilets over the ‘B’ schedule property and thereby obstructed the right of common passage. In support of his arguments he relies upon the following judgments: (i) Putte Gowda @ Ajjegowda -vs - Rame Gowda 1996 (5) KLJ Supplement 306; (ii) Lakshmana Konar and another -vs- Namalwar Konar (decease by LRs) and others AIR 2004 Madras 264; (iii) M. Kumar -vs- B.C. Vijay Kumar, Laws (KAR)- 2013-6-17; (iii) Maria Margarida Sequeira Fernandes and others -vs- Erasmo Jack De Sequeira (dead) Through LRS., (2012) 5 SCC 370 ; 10. In the light of the aforementioned rival contentions, the following questions arises for consideration in this appeal: 1. Whether the plaintiff has satisfactorily pleaded and proved that ‘B’ schedule property is the common passage and she has the right of easement over the same? 2. Whether the judgment and decree of the trial Court is sustainable? 11. Some of the undisputed facts of the case are as follows: S.Narayanappa s/o Ramaiah was the owner of land bearing Sy. No.125/5 situated at Murugeshpalya, Kodihalli Village, Varthur Hobli, Bengaluru South Taluk. He developed a lay-out and made sites in that. 2. Whether the judgment and decree of the trial Court is sustainable? 11. Some of the undisputed facts of the case are as follows: S.Narayanappa s/o Ramaiah was the owner of land bearing Sy. No.125/5 situated at Murugeshpalya, Kodihalli Village, Varthur Hobli, Bengaluru South Taluk. He developed a lay-out and made sites in that. Out of those sites he sold site No.31 katha No.513 to the father of the defendants under the registered sale deed dated 3.7.1969 the copy of which is Ex.D.1. D.N. Chandrappa is the son of Narayanappa. He sold site No.31-A katha No.514 along with Mangalore tiled house constructed thereon to one Smt. Radha Bhaskaran under the registered sale deed dated 27.05.1982 the copy of which is Ex.P.5. The same is the plaint schedule ‘A’ property. Plaint schedule ‘A’ property situates on the western side of the property sold by Narayanappa to the defendants’ father under Ex.D.1. In Ex.D.1 the western boundary is shown as site No.31. Plaint schedule ‘A’ property is shown in Ex.P.5 sale deed as 31-A. The first alienation after Ex.P.5 was the one under Ex.P.4 to Shekar Poojary under Ex.P.4 on 9.11.1992. In the schedule of Ex.P.4 the property number is shown neither as site No.30 or 31-A but it is shown as property No.1 katha No.514. When that is further conveyed to the plaintiff under Ex.P.2 the same description has continued. 12. Having regard to the aforesaid admitted facts the only questions are “whether there was a passage much less a common passage between the property sold by Narayanappa to the defendants’ father and the property sold by Chandrappa to Smt. Radha Bhaskaran”?. “If so whether Chandrappa or his successors in interest had/have any right of easement over such passage or the common passage”? 13. In Bachhaj Nahar’s case referred to supra the Apex Court has dealt with the requirements of the pleadings in cases relating to the right of easement. The relevant paragraphs are extracted below: “19. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right to drainage, right to a water course, etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right to drainage, right to a water course, etc. Easements can be acquired by different ways and are of 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 easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. 20. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for 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 twenty years (ending within two years next before the institution of the suit.) He 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 licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and the defendant’s servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to watercourse. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence. 21. A right of easement can be declared only when the servient owner is a party to the suit. But nowhere in the plaint, the plaintiffs allege, and nowhere in the judgment,........ 23. 21. A right of easement can be declared only when the servient owner is a party to the suit. But nowhere in the plaint, the plaintiffs allege, and nowhere in the judgment,........ 23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property ‘A’, court cannot grant possession of property ‘B’. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.” 14. The perusal of the plaint does not make out whether the plaintiff’s claims the right of easement by prescription or by necessity. In para 6 of the plaint she states that ‘B’ schedule property is the common passage between ‘A’ schedule property and the property of the defendants. In para 7 of the plaint she has very baldly stated that herself and her predecessors in title were/are utilizing the ‘B’ schedule property for better enjoyment of ‘A’ schedule property. She doesn’t state whether that was/is the right of the easement of necessity covered under Section 13 of easement’s Act or acquisition by prescription are covered under Section 15 of Easement Act. As held by the Supreme Court in Bachhaj Nahar’s case referred to supra pleading necessary for proof of easement of necessity or by grant and easement by prescription or different. It is further held that Court cannot assume or infer a case of easementary right, by referring to a stray sentence here and there in the pleading or evidence. As held by the Supreme Court in Bachhaj Nahar’s case referred to supra pleading necessary for proof of easement of necessity or by grant and easement by prescription or different. It is further held that Court cannot assume or infer a case of easementary right, by referring to a stray sentence here and there in the pleading or evidence. It is further held in the said judgment that such pleadings are necessary to ensure framing of well defined issues on such pleadings are required to enable the parties to lead evidence and the Court to grant appropriate relief otherwise Court cannot focus the attention of the parties or its own attention on that claim or relief by framing appropriate issues. Following judgment of the Supreme Court this Court in Spring Borewell’s Co. Pvt. Ltd’s case held that unless the plaintiff pleads the requirements of easement of prescription or easement of necessary as the case may be and seek declaration in that regard Court cannot grant the relief of mandatory injunction. This Court further held that though the judgment in D. Ramanatha Gupta’s case referred to supra per in curium in Putte Gowda’s case referred to supra, this Court has to follow the judgment of the Supreme Court in Bachhaj Nahar’s case. Therefore this Court also has to follow the ratio of Bachhaj Nahar’s case and Spring Borewell Co. Pvt. Ltd’s case. 15. The trial Court has not framed any issue on the right of easement of the plaintiff. When it is not the case of the plaintiff herself that she is in possession of ‘B’ schedule property and she only claimed the limited right of entry into ‘B’ schedule property for the purpose of maintaining ‘A’ schedule property the trial Court frames issue No.2 on her lawfull possession and enjoyment of the ‘B’ schedule peroperty and answers the same in affirmative. Such finding is unsustainable in view of the judgments of the Apex Court in Bachhaj Nahar’s case and Spring Borewell’s case referred to supra. 16. Coming to the proof of the case of easement or right of common passage, as already pointed out there is no specific pleading to show whether plaintiff claims easement by necessity or easement by prescription. If it is considered as the case of easement of necessity, then the plaintiff was required to show that Chandrappa had such right. 16. Coming to the proof of the case of easement or right of common passage, as already pointed out there is no specific pleading to show whether plaintiff claims easement by necessity or easement by prescription. If it is considered as the case of easement of necessity, then the plaintiff was required to show that Chandrappa had such right. Though in Ex.P.5 the sale deed executed by Chandrappa it is said that he has acquired site No.1 form his father under registered deed dated 13.06.1969 and constructed the house on the same along with other houses as per the approved plan 07.08.1970 the plaintiff does not choose to produce those documents. Except the self serving rough sketch produced along with the plaint she doesn’t choose to produce any lay-out plan or the sketch issued by any competent authority to show that there was/is a 3’ passage on the eastern side of the property conveyed to Smt. Radha Bhaskaran as stated in Ex.P.5. Ex.P.5 does not even state that it is a common passage. She doesn’t examine neither Chandrappa nor any of his heirs to show that he was given a right of easement of necessity or he had any easement of passage by prescription. Apparently in Exs.P.2 and P.4 the word ‘common’ is inserted to extend the word ‘ 3’ passage’ to expand the right from 3’ passage to 3’ common passage. 17. Ex.D.1 the sale deed dated 03.07.1969 in favour of the defendants’ father is subsequent to the alleged title deed of Chandrappa dated 13.06.1969 referred to in Ex.P.5. If Narayanappa had conveyed any right of common passage (easement of necessity) to Chandrappa, then in Ex.D.1 the same would have been reflected while describing the western boundary of the property sold. Therefore there is no merit in the contention that since the western property was retained by Narayanappa himself there was no need for him to show the western boundary as common passage. That too when it is not the case of the plaintiff that ‘B’ schedule property is site No.30. In this context also the suppression of the title deed of Chandrappa speaks in volumes. Having regard to these facts the findings of the trial Court that plaintiff is in lawful possession and enjoyment of ‘B’ schedule property is unsustainable. 18. That too when it is not the case of the plaintiff that ‘B’ schedule property is site No.30. In this context also the suppression of the title deed of Chandrappa speaks in volumes. Having regard to these facts the findings of the trial Court that plaintiff is in lawful possession and enjoyment of ‘B’ schedule property is unsustainable. 18. So far as the mandatory injunction for demolition of the toilets DW.1 himself admits that he has constructed those toilets outside the peripheral wall of the house stretching over the ‘B’ schedule property contrary to the approved building plans at Exs.D.8, D.10 and D.12 without leaving any setback. He admits the construction as depicted in the photographs Exs.P.6 to P.8. They show that the toilets are constructed taking support from the wall of the plaintiff’s house also. The walls of the toilets are imbedded in the wall of the house in ‘A’ schedule property. Defendants’ have no right to do so. Such unjust acts of the defendants’ are required to be remedied as held by the Apex Court in Maria Margarida Sequeira Fernandes’s case referred to supra. Therefore the said toilets are required to be demolished. Therefore, the decree of the trial Court sustains to that effect. Resultantly the appeal is partly allowed. The impugned judgment and decree is partly set aside. The suit is partly decreed. The finding of the trial Court that plaint schedule ‘B’ property is the common passage and plaintiff is in lawful possession and enjoyment of the same is hereby set aside. Further the decree of perpetual injunction against the defendants’ against interference of the plaintiff’s peaceful possession and enjoyment of plaint schedule ‘B’ property is hereby set aside. The decree for mandatory injunction for removal of the toilets constructed over ‘B’ schedule property is hereby confirmed. No order as to costs.