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2019 DIGILAW 1451 (KAR)

K. C. Mohan Kumar v. Kalerammana Papaiah

2019-06-27

K.S.MUDAGAL

body2019
JUDGMENT : K.S. Mudagal, J. This regular second appeal of plaintiff arises out of common judgment and decree dated 07.11.2014 passed by the Senior Civil Judge & CJM, Madikeri in R.A.No.74/2012 and R.A.No.73/2012. By the impugned judgment and decree, the First Appellate Court dismissed the appeals of plaintiff and confirmed the judgment and decree dated 27.08.2012 passed by the Additional Civil Judge, Madikeri in O.S.No.62/2008. 2. By the said judgment and decree, the trial Court had dismissed the suit of the plaintiff-appellant for permanent injunction and decreed the counter claim of defendants declaring that defendants have right of easement of necessity and easement of prescription over suit schedule pathway and granted injunction against plaintiff from obstructing peaceful usage of the said pathway. 3. Appellant was plaintiff and respondents were defendants before the trial Court. For the purpose of convenience, parties will be henceforth referred to with their ranks before the trial Court. 4. Subject matter of the suit in O.S.No.62/2008 was land bearing Survey No.42/1 which in all measured 6.25 acres situated within the limits of Avandoor village, Bagamandala Taluk, Madikeri Taluk. 5. Case of the plaintiff was as follows: Plaintiff and defendants are descendants of common ancestor of Kalerammana family. But the defendants belong to different branch of Kalerammana family. Plaintiff acquired suit property in a partition. Defendants are obstructing his peaceful possession and enjoyment of the suit property. Though he gave police complaint against obstruction of the defendants, that did not yield results. Therefore, he seeks decree for permanent injunction against defendants. 6. Defendants on appearing, filed written statement as well as counter claim denying acquisition of property by plaintiff under partition. They contended that suit land and their land bearing survey No.47 and their other lands including survey No.49 belonged to Kalerammana family and devolved in plaintiff and themselves by inheritance. They further contended that they are cultivating and enjoying survey No.47 and the family ancestral house called "Iyne Mane" situates in Survey No.47. 7. Defendants further contended that to reach the family house and to go to temple, defendants have to cross the wooden bridge formed across the stream between their land and plaintiff's land and the pathway situated in plaintiff's land since time immemorial. They contended that they have right of easement of necessity and prescriptive easement over the said pathway. 7. Defendants further contended that to reach the family house and to go to temple, defendants have to cross the wooden bridge formed across the stream between their land and plaintiff's land and the pathway situated in plaintiff's land since time immemorial. They contended that they have right of easement of necessity and prescriptive easement over the said pathway. They further contended that recently plaintiff came in possession of the suit property and wrongly trying to obstruct the usage of the said pathway. They claimed declaration right of easement of necessity and easement by prescription and permanent injunction. 8. Plaintiff filed rejoinder to the counter claim of the defendants denying the case of easement. 9. On the basis of such pleadings, the trial Court framed the following issues: 1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of suit? 2. Whether the plaintiff proves the alleged interference caused by the defendants? 3. Whether the defendant Nos.1 to 3 prove the existence of counter claim footpath in the middle of suit schedule property for the past 60 years? 4. Whether the defendant Nos.1 to 3 prove that they have acquired easementary rights of necessity and prescription over the counter claim footpath? 5. Whether the defendant Nos.1 to 3 prove the alleged interference caused by the plaintiff for usage of counter claim footpath? 6. Whether the plaintiff is entitled for the suit relief? 7. Whether the defendant Nos.1 to 3 are entitled for the counter claim relief? 8. What order or decree? 10. Parties adduced evidence. In the trial Court, Commissioner was appointed to inspect the suit property and to submit his report. Accordingly, he submitted his report. Plaintiff was examined as PW.1 and Ex.P1 to Ex.P9 were marked. On behalf of defendants, defendant No.1 was examined as DW.1 and Ex.D1 to Ex.D13 were marked. Commissioner was examined as CW.1. Commissioner's report was marked as Ex.C1 and spot mahazar was marked as Ex.C2. 11. Accordingly, he submitted his report. Plaintiff was examined as PW.1 and Ex.P1 to Ex.P9 were marked. On behalf of defendants, defendant No.1 was examined as DW.1 and Ex.D1 to Ex.D13 were marked. Commissioner was examined as CW.1. Commissioner's report was marked as Ex.C1 and spot mahazar was marked as Ex.C2. 11. The trial Court after hearing the parties dismissed the suit and decreed the counter claim on the following grounds: (i) There exists pathway in the land of the plaintiff to reach the ancestral house of the parties situated in survey No.47; (ii) That defendants are using pathway since long time and they have right of easement of necessity and prescriptive easement over suit pathway; (iii) Commissioner's report and evidence prove the right of way to defendants. 12. Aggrieved plaintiff challenged the said judgment and decree before the First Appellate Court in R.A.No.74/2012 and R.A.No.73/2012. The First Appellate Court by impugned judgment and decree concurred with the findings and reasoning of the trial Court and dismissed the appeal of the plaintiff. 13. This Court admitted the appeal for consideration of the following substantial question of law: "Whether the judgment and decree of both the Courts below are right in law in allowing the counter claim of the defendants, as opposed to the report of the Commissioner vide Exhibit-C(1) with reference to the alternate pathway available to the defendants?" 14. Sri Ajay Kumar.M. learned Counsel for appellant seeks to assail the impugned judgments and decrees of the Courts below on the following grounds: (i) Claim of easement of necessity and prescriptive easement are mutually inconsistent, therefore, Courts below could not have granted that; (ii) There was no required pleadings and proof to prove easement of necessity and easement by prescription; (iii) Commissioner's evidence and report show that there was alternative road, therefore, claim of easement of necessity stood demolished. 15. In support of his contentions, he relies upon the following judgments: 1. Bachhaj Nahar v. Nilima Mandal and Ors., (2009) AIR SC 1103] 2. Devaki v. K.Joshi, 2011 1 LAWS(KER) 179] 3. Justiniano Antao & Ors. vs. Bernadette B.Pereira [MANU/SC/0995/2004] 16. 15. In support of his contentions, he relies upon the following judgments: 1. Bachhaj Nahar v. Nilima Mandal and Ors., (2009) AIR SC 1103] 2. Devaki v. K.Joshi, 2011 1 LAWS(KER) 179] 3. Justiniano Antao & Ors. vs. Bernadette B.Pereira [MANU/SC/0995/2004] 16. Per contra, Sri M.C.Ravi Kumar, learned Counsel for respondents seeks to support the impugned judgments and decrees of the Courts below on the following grounds: (i) Plaintiff contended that he has acquired the property under partition and he has not proved the same; (ii) Admittedly, plaintiff and defendants descended from same ancestry and lands were granted to family. The family members were cultivating them according to the convenience; (iii) Admittedly, in the land of the defendants, ancestral house was situated and to reach that ancestral house and temple, even as per Commissioner's report only suit pathway was pathway. (iv) The other road mentioned in the Commissioner's report is not road to reach ancestral house, but i.e. pathway to reach Bettageri Avandoor main road. 17. This being second appeal under Section 100 of the Code of Civil Procedure, 1908, the scope of interference on the question of fact is very limited. The Hon'ble Supreme Court in Gurnam Singh v. Lehna Singh,2019 SCCOnlineSC 374] [Civil Appeal No.6567/2014 DD 13.03.2019] referring to several earlier judgments of the Supreme Court in para 26 of the judgment held as follows: "26. .......As per law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being: (i) Contrary to the mandatory provisions of the applicable law; or (ii) Contrary to the law as pronounced by the Apex Court; or (iii) Based on inadmissible evidence or no evidence." (Emphasis supplied) 18. Therefore this Court has to see whether the judgments of the Courts below are contrary to the applicable law, law pronounced by Apex Court or based on inadmissible or no evidence. 19. Even learned Counsel for respondent fairly conceded that right of easement of necessity and easement by prescription do not go together, but he stressed on easement of necessity. Substantial question of law formulated in this appeal also concentrated on easement of necessity. 20. Whole question is whether defendants had an alternate pathway to reach ancestral house and the temple. Plaintiff also in his cross-examination admitted that there is a pathway in his land (suit pathway) and defendants pass through that to reach ancestral house situated in survey No.47 which they are cultivating. But he contended, defendants cannot use that as of right. 21. It has come in evidence that on eastern side of survey No.42/1, i.e. plaintiff's land a stream passes and bridge of wooden logs is formed over that to connect suit land and defendants land. It is also admitted that defendants cross that bridge from land bearing survey No.47 and pass through the plaintiff's land using the suit passage. 22. In Ex.C1 Commissioner's report, at page 3, para 2, it is specifically stated that except pathway situated in the land of plaintiff, there is no other road to reach ancestral house. The other 3 kms road referred to in the last paragraphs of Commissioner's report, passes through defendants' lands bearing Survey Nos.49/5, 49/6 to reach Bettegere Avandoor main road and not ancestral house of the defendants. 23. Further in the last but one paragraph, at page 2 of his report, Commissioner has stated that coffee plantation of the defendants may be 30 to 40 years old and to reach that land from the side of paddy land, there is no other alternate road. Courts below have considered those aspects. Therefore, reasoning of Courts below regarding the suit passage being only pathway and non availability of alternate pathway to reach ancestral house cannot be found to be perverse. 24. So far as requirements and pleadings, defendants in their written statement contended that themselves and plaintiff acquired the properties by common ancestors. They contended that except that suit passage, there is no other alternate road to reach ancestral house and they are using it since time immemorial. Those pleadings were sufficient. 24. So far as requirements and pleadings, defendants in their written statement contended that themselves and plaintiff acquired the properties by common ancestors. They contended that except that suit passage, there is no other alternate road to reach ancestral house and they are using it since time immemorial. Those pleadings were sufficient. Plaintiff admitted that defendants and plaintiff were descendants from common ancestry and properties in question were their ancestral properties. 25. Having regard to the aforesaid facts and circumstances, it cannot be said that Courts below while granting declaration of easement of necessity violated any applicable law or law pronounced by Apex Court or judgments were based on inadmissible evidence or no evidence. The judgments relied upon by the appellant's Counsel are not applicable to the facts of the case. 26. However, Courts below were not justified in granting easement of necessity and easement of prescription together. Therefore, the judgments and decrees of the Courts below sustain only in respect of grant of decree on counter claim in respect of easement of necessity. Therefore, appeal is partly allowed. The judgments and decrees of the Courts below are modified as follows: Suit and counter claim are partly decreed. Defendants or anybody claiming through them are hereby restrained from interfering with peaceful possession of the suit schedule property by plaintiff, except using the suit pathway for ingress and egress to reach their ancestral house situated in Survey No.47/2 and temple. It is hereby declared that defendants have right of easement of necessity of passing through the pathway situated in plaintiff's suit land bearing survey No.42/1 measuring 2 acres situated at Avandoor village of Madikeri Taluk. Plaintiff is hereby restrained from obstructing defendants or anybody claiming through them from enjoying the aforesaid suit pathway for their ingress & egress.