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2020 DIGILAW 2260 (KAR)

M Puttaiah v. Y M Shingappaiah S/o Manjunathaiah

2020-11-13

N.K.SUDHINDRARAO

body2020
JUDGMENT : 1. The appeal is directed against the judgment and decree passed in R.A.No.68/2006 wherein appeal came to be allowed by the Presiding Officer, Fast Track Court-I, Chikmagalur on 29-05-2006 and consequently the judgment and decree dated 29.6.2001 passed in O.S.No.112/1995 by the learned Civil Judge (Jr.Dn), Koppa, came to be set aside and the original suit No.112/1995 was decreed with costs and the defendants, their agents, servants were restrained from interfering with the peaceful possession and enjoyment of the schedule properties. Being aggrieved by the said judgment and decree passed in R.A.No.68/2006, the defendants have come in appeal. 2. In order to avoid confusion and overlapping, the parties are referred hereinafter in accordance with the ranks held by them before the trial court. 3. Originally, the suit was filed by the plaintiff seeking permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule properties. 4. It is necessary to clarify at this stage itself that the dispute between the parties is not regarding the actual possession and enjoyment of the suit schedule properties in toto. But the defendants according to plaintiff have been disturbing the plaintiff’s possession and enjoyment of the schedule properties through trespass by making use of way through out over the schedule properties for their daily activities and also for agricultural purposes to carry equipment, fodder and the related. 5. Plaintiff’s claim is, defendants are not entitled even for entry into the schedule properties let alone the use of the space required for using as path-way or road. 6. The substance of the plaint is that, plaintiff is the absolute owner of the schedule properties bearing survey Nos. 53,57/P,59/1,60/1,192/5,60/2 and 192 situate at Kodur village, Hariharapura Hobli, Koppa. The defendants are none other than the brothers of the plaintiff. The suit schedule properties originally belonged to the father of the plaintiff, Manjunathaiah. The schedule properties were allotted to the plaintiff in the family partition effected by his father. Consequent to the partition all the siblings started living separately. After the death of Manjunathaiah, father of the plaintiff and defendants, they also succeeded to the share of their father Manjunathaiah and plaintiff and defendant Nos. 1 and 2 partitioned the properties left behind by Manjunathaiah through a registered partition deed dated 18-7-1996. Consequent to the partition all the siblings started living separately. After the death of Manjunathaiah, father of the plaintiff and defendants, they also succeeded to the share of their father Manjunathaiah and plaintiff and defendant Nos. 1 and 2 partitioned the properties left behind by Manjunathaiah through a registered partition deed dated 18-7-1996. Consequent to the partition, all the original records pertaining to their share were mutated and necessary entries were made in the records maintained by the competent authorities. 7. The grievance of the plaintiff is that, defendants though do not have any right, title and interest of any kind towards schedule properties started interfering with the possession and enjoyment of the plaintiff by way of removing the fence and other mis deeds. 8. The defendants appeared through their counsel and filed their written statement. The objections or defence in substance is that, after the death of their father Manjunathaiah, plaintiff and defendant No.1 made some rectification in respect of some of the survey numbers in the original partition deed dated 04-11-1976 and partitioned the properties of their father’s share and the properties they purchased jointly after the original partition in the year 1976 under the registered deed dated 18-07-1986. There is no dispute regarding the extent of lands allotted to each of them. Their contention is that, common boundary given to Item No.1 of the properties is not correct and plaintiff has not described the nature of the land in item No.1, intentionally to misguide the court and the defendants. 9. According to the defendants both the plaintiff and defendants being the members of the same family earlier and their respective shares in the partition were adjoining lands and defendants have to pass through the lands of the plaintiff on ridges to reach their lands for the purpose of agricultural activities. There is common pathway existing ever since the time immemorial in survey Nos. 53, 57/3, 59/1, 60/1, 60/2, 192/5 and 192. The defendants neither have right to cultivate and carry on their occupation of agriculture over the schedule properties nor they claim for the same. Their contention in substance is that, they are entitled for ingress and egress and it is mentioned in the partition deed and in the subsequent partition deed. It is in this connection, defendants claim that plaintiff has no right to prevent them from enjoying their right of way. Their contention in substance is that, they are entitled for ingress and egress and it is mentioned in the partition deed and in the subsequent partition deed. It is in this connection, defendants claim that plaintiff has no right to prevent them from enjoying their right of way. Defendants have claimed the said use of pathway in the lands of the plaintiff as an easement of necessity and prayed to dismiss the suit. 10. Basing on the pleadings and other materials available on record, learned trial judge framed the issues relating to lawful possession over the schedule properties, interference and easement of necessity. 11. Learned trial judge was accommodated with the oral evidence of PW1-Singappaiah and documentary evidence of Ex.P1-certified copy of registered partition deed dated 17.7.1986; Ex.P2-certified copy of registered partition deed dated 04.11.1976, Ex.P3-certified copy of registered partition deed dated 27.4.1983 and Exs.P4 to P11RTC extracts on behalf of the plaintiff. On the other hand, 1st defendant Puttaiah is examined as DW1 and no documentary evidence is produced on behalf of defendants. 12. The oral evidence of the parties is that, they stick to their claims to the effect of ownership and exclusive rights along with possession as claimed by plaintiff and that of right of way by the defendants. 13. The learned trial judge relied upon the report of the Court Commissioner and the rough sketch produced along with it. However, Court Commissioner was not examined before the court. The report and the rough sketch were considered as part and parcel of the records and also on the portion of cross-examination of plaintiff wherein, he has stated that after the partition they got the properties measured approximately and they are in possession of the properties on approximate measurement basis. A clear admission is made by the plaintiff that, ‘after 1986 schedule properties have not been phoded and item No.1 of the schedule properties is having different boundaries.” It is also admitted that item No.1 of the schedule properties is situated 10 feet downwards from plaintiff and defendants’ house. The trial court also observed that there is no clarity in respect of item No.1 of the schedule property and boundaries are not correctly mentioned. It is also observed that it is not disputed that the plaintiff and defendants when they were living together in the joint family, they were making use of the common pathway. The trial court also observed that there is no clarity in respect of item No.1 of the schedule property and boundaries are not correctly mentioned. It is also observed that it is not disputed that the plaintiff and defendants when they were living together in the joint family, they were making use of the common pathway. Plaintiff has not maintained consistency in his evidence to claim exclusive rights. The rest of the matter is that, on the basis of the sketch, usage by the parties and evidence of agricultural activities, the learned trial judge found the case in favour of the defendants and accordingly, suit came to be dismissed. 14. The learned appellate judge/Presiding officer, Fast Track Court-I, Chikmagaluru, while disposing of the appeal preferred by the plaintiff against the judgment and decree of the trial court in O.S.No.112/1995 dated 29-6-2001 has found the case in favour of the plaintiff and accordingly allowed the appeal with costs and decreed the suit of the plaintiff. Learned appellate judge concludes that availability of alternative pathway was observed by the trial court and the plaintiff claims availability of alternative pathway and hence the contention of the defendants cannot be accepted. In this connection, the learned appellate judge relies upon Section 13 (e) of the Indian Easements Act, 1882 and holds that in the presence of availability of alternative access easement of necessity cannot be claimed. 15. Against the said judgment and decree of the appellate Judge in R.A.No.68/2001 dated 29-05-2006, defendants/appellants have presented this appeal. During the pendency of the appeal, 1st appellant died and his legal representatives were brought on record. 16. This court while admitting the appeal on 23-07-2008 framed the following substantial question of law: “Whether in the facts and circumstances of the case, the appellate court was justified in reversing the judgment and decree passed by the trial court on the ground there is alternative pathway ignoring the contents of Exs.P1 to P3? 17. The following additional substantial questions of law were also framed by this court on 11-09-2020: (i) Whether the appellants/defendants can claim the right of passage in the schedule properties? (ii) Whether the alternative way if exists is the deciding factor to the case? 18. The learned counsel for appellants/ defendants submits that use of the schedule properties is not a matter of one or two days or months or years. (ii) Whether the alternative way if exists is the deciding factor to the case? 18. The learned counsel for appellants/ defendants submits that use of the schedule properties is not a matter of one or two days or months or years. But it has been from times immemorial. Even during their father’s time both plaintiff and defendants were enjoying the portion of the schedule properties as pathway. In support of his submission, learned counsel for appellants has relied on the decision of the Hon’ble Supreme Court in the case of Hero Vinoth (Minor) Vs. Seshammal – reported in AIR 2006 Supreme Court 2234. 19. Learned counsel for plaintiff/ respondent submits that his right over the schedule properties is exclusive and cannot be diluted by allowing the defendants for using the pathway when there is available alternative in the form of pathway separately apart from the suit schedule properties and defendants cannot claim easement of necessity. When the defendants have not at all disturbed or facing difficulty with the help of access available to them they cannot insist on the schedule properties alone. 20. Basically, the right of easement which includes claiming a path, a cart-way, a passage and other incidents of dominant servient are not the subject matter of ownership. In the sense, the parties to litigation cannot claim exclusive right of easement. For example, passage or path-way as claimed in the present suit. It is not available to a person who claims such right to claim ownership or exclusive possession. It is not a right to exclude others, its users, may be the owner of that space and other connected persons. Neither the owner of such space nor the users can obstruct the others. As it is the case of dispute of pathway, it is necessary to mention the definition of the term “Easement” as defined under Section 4 of the Indian Easements Act, 1882, which is as under: 4. “Easement” -An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do land continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.” 21. The learned appellate judge has focused the attention exclusively on ‘easement of necessity’ and has not considered other forms of easement. 22. The learned appellate judge has focused the attention exclusively on ‘easement of necessity’ and has not considered other forms of easement. 22. As a matter of fact, following are the different types of easements recognized by the Indian Easement Act, 1882: (a) Right of way; (b) Right to light or air acquired by grant; (c) Prescriptive right of light or air; (d) Prescriptive right to pollute air or water and (e) Other prescriptive rights. 23. Among them, ‘Easement of necessity’ is available when the user of a property does not have any access to reach the main road or the regular destination, except using the portion of the property of others. It may be called as ‘legal sacrifice’ by the person who has to trim his property by accommodating portion of the same for the use of others. It is necessary to note that the availability of right of easement is subject to certain conditions. 24. The person claiming easement exclusively for path or passage has to claim in any of the extreme corner of property of another and easement cannot divide the property of owner into two pieces thereby rendering the vertical or horizontal or equal division of the property of other person; and the claim cannot be too luxurious in the normal circumstances. 25. Whenever the easement is claimed as of necessity, the claimant must satisfy that there are no alternative however inconvenient may be is available, except the one claimed. 26. Further, whenever immoveable property consisted of undivided shares of many say owner/co-owner/tenants in common and in the course of time when the property has to be divided on the basis of eligibility then the division is to ensure that the benefit of easement has to be ensured for all which also applies for drainage and other essential amenities. There may be easement by prescription. Here the easement of necessity or its features has no role to play. It is a question of continuous, nature and usage of a space of others generosity the usage of such space as a pathway into a one easement by prescription. The other forms of easement are: statutory/contractual/grant. They also provide for extinguished easement in the existence of certain circumstances. 27. It is a question of continuous, nature and usage of a space of others generosity the usage of such space as a pathway into a one easement by prescription. The other forms of easement are: statutory/contractual/grant. They also provide for extinguished easement in the existence of certain circumstances. 27. In the present case, the appellate judge unnoticed the basic principles of easement and has gone on to reject the right of easement on the basis of availability, that too, when the alternative access is pleaded by the plaintiff. 28. In rural areas where agriculture is main occupation, the area of the property will be proportionately more than the residential property in the urban side. It is seen, there is a recital in the partition deed Ex.P1, wherein it is mentioned that, in respect of Gutadari (path-way) Neerudari (water way) are for enjoyment of the respective holders. Even there is an admission by the plaintiff that, “during the lifetime of their father, both plaintiff and defendants were living together in joint family and they were making use of pathway”. Even the measurement of the share is stated to have been made approximately. It is reflected that right from the time immemorial for the period of more than 20 years earlier to the filing of original suit defendants have been using the schedule property do not with adverse status or possession, but using a portion of the same to reach their agricultural fields. The rigid conditions of easement of necessity are not applicable to easement by prescription and as a right of user. Here the easement of right of path way or cart way has the features of both. 29. The learned appellate judge has committed error of serious nature by failing in not focusing the circumstances and nature of the easement. The learned trial Judge appears to have assigned proper reasons to come to a proper finding. I find in the circumstances, defendants are entitled to claim right of passage in the schedule properties even in the presence of alternative access. Hence, the judgment and decree passed by the first appellate judge is liable to be set aside and in the peculiar circumstances of the case, as the defendants are entitled for easement at the extreme portion of the schedule properties without causing too much of loss to the plaintiff. Hence, the judgment and decree passed by the first appellate judge is liable to be set aside and in the peculiar circumstances of the case, as the defendants are entitled for easement at the extreme portion of the schedule properties without causing too much of loss to the plaintiff. Further the measurement has to be restricted for a path-way which accommodates a bullock cart. In this connection, 8 feet width road appears to be necessary. For that purpose there shall be a preliminary decree. However, the formalities shall be completed in a separate final decree proceedings. The substantial question of law and additional substantial questions of law are answered accordingly. 30. For the foregoing reasons, the appeal filed by the appellants/defendants is allowed. The judgment and decree passed by the learned first appellate judge in R.A.No.68/2011 dated 29-05-2006 is set aside, holding that defendants are entitled for easement at the extreme portion of the schedule properties without causing too much of loss to the plaintiff by splitting the land into parts. Further the measurement has to be restricted for a path-way which accommodates a bullock cart. In this connection, not less than 8 feet width road appears to be necessary. For that purpose there shall be a preliminary decree. However, the formalities shall be completed in a separate final decree proceedings.