IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.NO.2451/2005(DEC/INJ) BETWEEN ASHOKA PLANTATIONS PVT LTD BY ITS MANAGING DIRECTOR SRI ANAND RAJAN S/O T.H.RAJAN R/AT L-427, SOWPARNICA IPPINA APARTMENTS, KAIKONDANAHALLI, SARJAPUR ROAD, BANGALORE. ... APPELLANT (BY SRI CHANDAN, ADVOCATE ) AND :
K A MANOHARA S/O K H APPAJI, AGED ABOUT 48 YEARS, IBNIVALAVADI VILLAGE, MADIKERI TALUK, KODAGU DISTRICT. ... RESPONDENT (BY SMT P V KALPANA, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED:3.9.2005 PASSED IN R.A.NO.30/1995 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), MADIKERI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:
10.3.1995 PASSED IN OS.NO.248/1992 ON THE FILE OF THE PRL.MUNSIFF, MADIKERI.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The plaintiff in OS.No.248/1992 on the file of Principal Munsiff, Madikeri, has come up in this second appeal impugning the divergent finding rendered in RA.No.30/1995 on the file of Civil Judge (Sr.Dn), Madikeri.
2. Brief facts leading to this second appeal are as under:
The plaintiff in the original suit is admittedly owner of Ibni Estate measuring to an extent of about 110 acres, spread over in different survey numbers referred to in the suit schedule. Admittedly, the said Estate was purchased by the plaintiff from the father of 1st defendant – Sri.K.N.Appaji under a registered sale deed which is executed in its favour in the month of November 1988. It is also not in dispute that subsequently, an agreement was also entered into between the plaintiff and 1st defendant with reference to certain rights being created in favour of 1st defendant for use of the road formed in Ibni Estate passing through Sy.Nos.78/6, 78/7 and 78/3, which is three metres in width and 250 metres in length. It is further not in dispute that the 1st defendant’s father while executing the sale deed of suit schedule property in favour of plaintiff did not reserve any right for usage of any portion of the land conveyed in favour of the plaintiff as road to reach a portion of Estate retained by him.
3. It is necessary at this juncture to mention that the total extent of aforesaid Estate was initially about 150 acres, which belonged to one Deva Shetty, from whom the 1st defendant’s father purchased the same. Thereafter, by conveying about 110 acres to the plaintiff which is a Limited Company, the remaining extent i.e., roughly around 40 acres was retained by the 1st defendant’s father for his cultivation, use and enjoyment as Coffee Plantation. It is stated that in the portion retained by the 1st defendant’s father there is also a house which was earlier belonged to Deva Shetty who was owner of entire extent of 150 acres and the said house is also retained by the 1st defendant’s father for himself while conveying larger extent of about 110 acres out of total 150 acres in the said Estate to the plaintiff. It is stated that the said house is situated opposite to a temple in the vicinity.
4. The sum and substance of the grievance of the plaintiff is that when 1st defendant’s father sold a major portion of Ibni Estate to plaintiff, he did not reserve any kind of right in any portion of the said land either for himself or for his son, the 1st defendant. Hence, an agreement was entered into between the parties which was not dated but the stamp paper on which it was prepared would indicate that the stamp paper is purchased on 11.11.1988 and that said agreement is executed immediately after the sale deed in respect of major portion of Estate being sold by 1st defendant’s father to plaintiff. In the said agreement, produced and marked in the court below as Ex.D1, there is reference to the plaintiff in the original suit permitting 1st defendant to use the road within its compound to reach defendant’s property through said road in the Estate purchased by the plaintiff, which is of 250 metres in length. It is usage of said road which is the bone of contention in the original suit.
5. The grievance of the plaintiff in the court below is that the 1st defendant, who had secured permission to use the road referred to in Ex.D1 is to reach his property for a temporary period, till such time the existing alternative road is widened to suit his requirement, did not take any steps to complete the alternate road and continued to use the road formed in the property purchased by the plaintiff. Hence, the present suit in OS.No.248/1992 was filed seeking the relief of declaration that there is no right of way to the 1st defendant or to any other person or persons claiming through him through the property of the plaintiff and the road or path formed inside the plaintiff’s Estate is exclusively for the private use of the plaintiff; for permanent injunction restraining the 1st defendant, his men, agents, workmen from trespassing into the plaint schedule property or interfering with the peaceful possession and enjoyment; for mandatory injunction directing the 2nd defendant to remove the obstruction caused on 5.6.1992 to go to the guest house of the plaintiff and for other consequential reliefs.
6. In the said suit, the 1st defendant entered appearance and tried to set up the claim of easement of necessity to pass through the property which was sold by none other than his father in the year 1988; that the agreement which was entered into between the plaintiff and 1st defendant vide Ex.D1 is thwarted inasmuch as the Government is not permitting to widen the existing road in front of the temple to reach his house; alternatively, it was contended that while preparing sale deed though the Advocate who had drafted the sale deed was informed that right of way is required to be reserved in the sale deed executed by the father of the 1st defendant in favour of plaintiff – company, the said Advocate who had the responsibility to mention the same in the sale deed has not done it thereby caused inconvenience to the 1st defendant, as such, the present suit which is filed for the relief of permanent injunction as well as mandatory injunction does not merit consideration and the same is required to be dismissed.
7. With the rival contentions of both the parties, the court below framed in all 10 issues with reference to the plea and defence raised in the suit. Thereafter, when the matter went into trial, on behalf of the plaintiff – company, its officers who are associated with the company in various capacities adduced evidence as witnesses and produced and marked 3 documents as Ex.P1 to P3. Out of that, first one is memorandum of articles of association of the plaintiff – company, second one is minutes of 1st meeting of the Board of Directors’ of plaintiff – company held on 31.10.1988 and the third document is Jama Bandi. As against said evidence, the 1st defendant entered witness box, adduced evidence as DW.1 and he also examined one Kallappa as DW.2, who is said to be Manager of adjacent Estate.
8. The trial court on appreciation of the pleadings, oral and documentary evidence available on record proceeded to decree the suit of the plaintiff as prayed for i.e., plaintiff was declared as owner of the road running inside its estate which is referred to as Ashok Plantation and that 1st defendant was retrained by permanent injunction not to disturb the peaceful possession and enjoyment of the road of Ashok Plantation enjoyed by the plaintiff. The said judgment and decree passed in OS.No.248/1992 was subject matter of appeal in RA.No.30/1995 on the file of Civil Judge (Sr.Dn), Madikeri.
9. In the regular appeal which was filed by the 1st defendant, the lower appellate court on appreciation of the grounds urged in said appeal and also by looking into the pleadings and evidence available on record proceeded to frame in all 4 points for consideration. First one is with reference to whether pleading and proof is sufficient to uphold that 1st defendant has acquired right of way in the schedule property by way of easement of necessity. Second point is, whether there were sufficient grounds to remand the matter to the trial court in pursuance of IA.No.II filed under Order XLI Rule 27 of CPC. Third point is whether the impugned judgment and decree of the trial court requires any interference and the fourth point is what order.
10. After framing of issues, the lower appellate court on re-appreciation of the material available on record proceeded to hold that the defence which is raised by defendants in the trial court is sufficient proof to establish that the 1st defendant has a right of way in the schedule property by way of easement of necessity. So far as additional documents produced by the 1st defendant in the lower appellate court are concerned, they are accepted by the lower appellate court without being marked and without an opportunity being given to the plaintiff to put to test the same, which are filed in trying to demonstrate that there are no alternate roads in existence to the 1st defendant to reach his property and as such, he is entitled to the benefit of using the road existing in Ashok Plantation belonging to the plaintiff – company as and by way of easement of necessity. Accordingly, it was held by the lower appellate court that the judgment and decree passed by the trial court is required to be interfered with, consequently, by setting aside the same, dismissed the suit of the plaintiff by its judgment and decree dated 3.9.2005.
11. Being aggrieved by the divergent finding rendered by the lower appellate court, the plaintiff has come up in this second appeal impugning the judgment and decree rendered by the lower appellate court. In this appeal as and by way of grounds it is urged that setting aside of the judgment and decree of the trial court by the lower appellate court is consequent to perverse appreciation of both oral and documentary evidence available on record, not appreciating the evidence accumulated by the Court Commissioner, which is referred to in his report and setting aside the recording of the Court Commissioner in his report without properly appreciating the same. It is further alleged that the finding of the lower appellate court in holding that non production of sale deed by the plaintiff in the court below would give adverse inference regarding existence of road in spite of clear admission by the defendants regarding execution of sale deed without mentioning reservation of right of way in the said sale deed and that, said admission is over ruled by the lower appellate court resulting in miscarriage of justice.
12. It is also contended by the learned counsel for the appellant – plaintiff that while appreciating the evidence, the crucial evidence with reference to motorable road in existence from Madikeri – Mysuru Highway to a temple situated in the village and from there to the house of 1st defendant is also not taken into consideration in spite of there being evidence in support of the same. It is further contended that though there is sufficient evidence to demonstrate the road being formed with the assistance of 1st defendant and villagers, that though said road being in use, the same is not looked into by the lower appellate court, consequently, committed a serious error in allowing the appeal filed by the 1st defendant in the lower appellate court by setting aside the judgment and decree passed by the trial court.
13. When this appeal had come up for admission on 24.1.2008, this Court heard the learned counsel for the appellant and thereafter, framed the following substantial question of law:
“Whether the lower appellate court was justified in declaring that the 1st defendant has acquired right of way in the schedule property by way of easement of necessity, when the specific case pleaded by the defendant was he has right to make use of the way under Ex.D1, which is in the nature of permissible possession?”
14. Heard the learned counsel for the appellant and respondent with reference to the substantial question of law framed by this Court. Perused the judgment impugned as well as the oral and documentary evidence available on record. After perusing the same, this Court would answer the substantial question of law in the negative, in favour of the appellant, for the following reasons:
Admittedly, Ibni Estate which was belonging to the 1st defendant’s father was earlier the property belonging to one Deva Shetty and it measured about 150 acres in its entirety. It is also not in dispute that 1st defendant’s father – K.N.Appaji purchased the said property along with the house which was used by said Deva Shetty. Thereafter, he had retained about 40 acres of land in the said property for himself along with the house which was used by Deva Shetty for his residence and sold the remaining 110 acres in favour of the plaintiff for valuable consideration by executing a sale deed on 16.11.1988.
15. The execution of sale deed by 1st defendant’s father in favour of plaintiff is not at all in dispute by 1st defendant in his written statement. It is further not in dispute between the parties that while preparing the sale deed there is no recital in reserving a right of way to the vendors i.e., 1st defendant’s father and his family members to pass through the property which was sold in favour of the plaintiff. This fact is further fortified in the parties entering into an agreement, which document is at Ex.D1 in the trial court, wherein it would clearly indicate that the plaintiff is the absolute owner of Ibni Estate, also referred to as Ashok Plantation belonging to the plaintiff – company, which is purchased by it from 1st defendant’s father, thereafter, it is seen that said property is developed by the plaintiff in putting up fence all around it and then securing the same with a gate.
16. It is further seen that in terms of the agreement entered into between the 1st defendant and plaintiff, the 1st defendant was permitted to use the road formed inside the property purchased by the plaintiff, which is referred to as Ibni Estate as well as Ashok Plantation for some time. However, when the 1st defendant who was required to use the road already in existence near the temple, which was required to be widened in terms of Ex.D1 having not been widened, did not stop using the road in existence in the property purchased by the plaintiff in Ibni Estate, has necessitated the plaintiff to file the suit for permanent injunction and also for declaration that the 1st defendant has no right of way in the property.
17. In the said suit, the 1st defendant has taken several defences basically with reference to easement of necessity and also having a right to use the road in existence in the property belonging to the plaintiff’s plantation to reach his property as a matter of right as contemplated under Section 13 of the Easement Act. However, while doing so, the 1st defendant conveniently ignored the definition of the word ‘easement’ in the said Act, where it clearly indicates that such right should be traceable to the property that is not belonging to the plaintiff and on which he had exercised such right with longstanding usage.
18. In the instant case, admittedly, the road through which 1st defendant is seeking right of way is the road which is admittedly a private road in the property of the plaintiff –company, which was sold by the 1st defendant’s father. If at all the 1st defendant’s father wanted to retain right of way over the said property, he could have retained the land required for formation of road to reach his property. In fact, at that time nothing prevented 1st defendant’s father in either retaining a portion of the land before conveying the same in favour of the plaintiff for the purpose of formation of a road to reach his property or in the alternative, to reserve such liberty in the sale deed. The same is not seen either in the sale deed or such intention being expressed by the father of 1st defendant in the sale deed or in Ex.D1 which has taken place subsequent to the sale of the property by the 1st defendant’s father to plaintiff company. Therefore, all these defences which are raised are subsequent to filing of the suit and that too in the light of the fact that when right of way was given to 1st defendant in the form of permission to use the said road, to expand the same to the right of easement by necessity cannot be sustained in the absence of pleading and evidence to support the same.
19. In fact, in the trial court, Court Commissioner was appointed to establish the existence of alternate road to 1st defendant, wherein a report is given by the said Commissioner to demonstrate that a road is in existence from National Highway to the temple which is situated just opposite to the residence of 1st defendant, that the road which is in existence being used by the 1st defendant and others is brought on record, which is not seen by the lower appellate court while re-appreciating the judgment rendered by the trial court for the relief of declaration and permanent injunction as sought by the plaintiff in the suit.
20. In that view of the matter, the substantial question of law is answered in the negative against the 1st defendant, consequently, the judgment and decree dated 3.9.2005 passed in RA.No.30/1995 on the file of the Civil Judge (Sr.Dn), Madikeri, is set aside and the judgment and decree of the trial Court dated 10.3.1995 in OS.No.248/1992, on the file of Principal Munsiff and JMFC, Madikeri, is hereby confirmed.
Accordingly, this second appeal is allowed.
Sd/- JUDGE nd/-