IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.654 OF 2011 BETWEEN 1. Smt. R.Janaki, Aged about 70 years, W/o. Sri. T.R.Jayarajan, Residing at No.74/1 East Anjaneya Temple Street, Basavanagudi, Bengaluru-560004.
2. Sri. H.N.Srinivasa Murthy, Aged about 65 years, S/o. Late Sri. H.S.Nanjundaiah, Residing at No.74/2 East Anjaneya Temple Street, Basavanagudi, Bengaluru-560004.
(By Sri. Vivek Holla, Advocate) AND 1. Sri. P.P.Bhaskar, Aged about 47 years, S/o. Late Sri. P.K.Pandurangan, 2. Smt. B.Lakshmi, Aged about 40 years, W/o. Sri. P.P.Bhaskar, …Appellants Both residing at No.86 Coles Road Cross, Fraser Town, Bengaluru-560005.
(By Sri. M.D.Raghunath, Advocate) …Respondents This RFA is filed under Section 96 of CPC, against the judgment and decree dated 14.12.2010 passed in O.S.8537/2006 on the file of the XVII-Additional City Civil Judge (CCH-16), Bengaluru City, dismissing the suit for the declaration and permanent injunction.
This RFA coming on for hearing this day, the court delivered the following:
JUDGMENT The plaintiffs in O.S.8537/2006 on the file of City Civil Court, Bengaluru has preferred this appeal. The material facts pleaded in the suit are as follows:
2. The suit is in respect of a passage. The entire property bearing No.18, East Anjaneya Temple, Basavanagudi, measuring East to West 110 ft. and North to South 30 ft. earlier belonged to Lakshminarayana Rao. After his death in the year 1967, his wife Sundaramma and children sold a portion of the said property measuring East to West 50 ft. and North to South 30 ft. to one Sathyoji Rao along with a passage measuring 4½ ft. x 60 ft. This Sathyoji Rao thereafter sold the said property in two portions, one to the 1st plaintiff, measuring East to West 20 ft. and North to South 30 ft; and another portion to one Sri. T.N.Krishna Murthy. These sales took place in the year 1982. Thereafter T.N.Krishna Murthy sold the portion purchased by him to 2nd plaintiff on 4.11.2004. The property purchased by the 2nd plaintiff measures East to West 30 ft. and North to South 25.6 ft. The defendants claiming to be purchasers of the remaining portion of the entire property from one Mohan Krishna started asserting that the passage was meant for use by all including himself. They started parking their vehicles in the passage. The plaintiffs brought to the defendants’ notice that the passage belonged to them exclusively, but the defendants did not stop using the passage. Therefore the plaintiffs brought a suit seeking decree of permanent injunction to restrain the defendants from using the passage.
3. It is the case of the defendants that the plaintiffs do not have exclusive right over the passage. They assert that it is a common passage. They specifically pleaded that after the sale of a portion of the entire property to Sathyoji Rao, the daughters of Lakshminarayana Rao, i.e., the original owner relinquished their right over the remaining portion of the property in favour of their brothers viz., B. Shankar Rao, B. Krishna Rao, B. Suryanarayana Rao and the legal heirs of B. Rajashekar Rao by executing a release deed. Thereafter there took place a partition among the sons of B. Lakshminarayana Rao on 27.02.1985. Again on 29.05.1986 the wife and daughters of B. Rajashekar Rao released their right, title and interest in the property allotted to them in favour of Smt. B.R. Geetha. In the partition deed dated 27.02.1985 and the release deed 29.05.1986, the Southern boundary of the property is shown as 4 ft. common passage. On 30.03.1992 Smt. B.R. Geetha sold the property released in her favour to S. Mohanakrishna, who in turn, on 29.05.2006 sold the property in favour of the defendants. In these two sale deeds also the Southern boundary is shown as common passage. Therefore according to the defendants, the Southern boundary to their property is a common passage and the plaintiffs cannot claim exclusive right over the same. They also pleaded that except this passage there is no other way that provides ingress and egress to their property and therefore they have every right to make use of the passage. They claimed easementary right arising from necessity. This passage was being used by their predecessors in title also and the defendants continued to make use of the same; because of continuous use of passage by them and their predecessor in title, they have acquired right over the passage and the plaintiffs cannot object. For these reasons they sought for dismissal of the suit and a declaration by way of counter claim with regard to right make use of the passage.
4. The trial court framed seven issues and after appreciating the evidence, it came to conclusion that the passage belonged to the plaintiffs, but it dismissed the suit for permanent injunction holding that the defendants had acquired right over the passage by necessity; this finding consequently resulted in counter claim of the defendants being allowed.
5. The trial Court has given findings that the passage is meant for use of both the plaintiffs and the defendants. To come to this conclusion the trial Court has referred to transactions that took place in the year 1968 and thereafter till the defendants’ vendor Mohana Krishna purchased the property in the year 1992. In the sale deeds executed by Sathyoji Rao in favour of the 1st plaintiff Janaki and the 2nd plaintiff’s vendor namely, T.N.Krishnamurthy there is a mention about common passage. Even in the lease deeds and the partition deed, the southern boundary is mentioned as common passage. Moreover, the defendants are purchasers of a portion of property bearing No.74 old No.4 to an extent of 23.9 x 14.6 ft. At the time of purchasing the said property, they ascertained that the passage was available to their use also. P.W.1 has also admitted in the cross-examination that the defendants were using this passage for quite a long time. For all these reasons, the condition imposed in the sale deed of the year 1968 when Sathyoji Rao purchased the property cannot be enforced and those conditions are found to be impracticable for implementation in view of subsequent transactions. There is no other way for the defendants to have access to the main road and therefore, easement of necessity arises. It is also held that when legal heirs of Lakshminarayan Rao sold the property to Sathyoji Rao in the year 1968, they could not have included a condition in the sale deed that the southern side passage would be available only to the use of Sathyoji Rao and that nobody would get a right. This was an impracticable condition. Hence, the passage is meant for use of all and thereby the plaintiffs cannot seek a decree of injunction and that the counterclaim of the defendants could be granted.
6. I have heard the arguments of the learned counsel for the appellants/plaintiffs and the respondents/defendants.
7. The learned counsel for the appellants, assailing the findings of the trial Court, argued that the trial Court has totally misread the documents produced by the plaintiffs. In the first sale deed of the year 1968 i.e., Ex.P1 it is clearly mentioned that the southern side passage measuring 4 ½ ft. x 60 ft. would exclusively belong to the purchaser Sathyoji Rao. Only to limited purpose, the vendors reserved their right over the passage and further they undertook to close down the southern side door in case they would sell the front portion of the house. Therefore, this recital in Ex.P1 is very clear that none else other than Sathyoji Rao could make use of the passage. After he sold the property, his purchasers got the same right. Just because in the other documents, the southern side boundary is mentioned as common passage, the defendants cannot claim any right over it. The defendants could not have made a prayer for counterclaim without seeking a declaration with regard to prescription within the meaning of Section 15 of the Easements Act. The defendants’ contention is that in the release deeds and the partition deed there is a mention about common passage and therefore, they assert about existence of common passage. It is not their case that they have been making use of this passage for more than 20 years and they could impose easement by prescription. The trial Court has misunderstood the concept of easement by necessity. The easement of necessity arises whenever property is sold or partitioned. In this case though property was sold, they cannot claim this type of easementary right, as in the sale deed of the year 1968 it was made clear that the passage was left only for the exclusive use of Sathyoji Rao. Therefore, it is his argument that the trial Court should have decreed the suit of plaintiffs and dismissed the counterclaim.
8. The learned counsel for the respondents argues that it may be true that in Ex.P1 it is mentioned that passage was left for the use of Sathyoji Rao. But, when Sathyoji Rao subsequently sold the property to the 1st plaintiff Smt.Janaki and Sri.T.N.Krishnamurthy, he clearly mentioned about existence of common passage. Therefore, Sathyoji Rao knew that the passage was being used not only by him but also predecessor-in-title of the defendants. Even if it is assumed that the passage exclusively belonged to Sathyoji Rao, he gave up his right over it by mentioning it as a common passage. The learned Counsel particularly referred to Ex.P5, the sale deed executed by T.N.Krishnamurthy in favour of H.N.Srinivasamurthy, where the southern side boundary is mentioned as below:
zÀQëtPÉÌ - “¸ÀzÀj ¸ÀéwÛUÀÆ ªÀÄvÀÄÛ ‘EvÀgÉAiÀĪÀgÀ ¸ÀéwÛUÀÆ NqÁqÀ®Ä’ ªÀÄzsÀåPÀªÁVgÀĪÀ £Á®Ä̪ÀgÉ Cr ªÀÄzsÀåPÀzÀ ¥Áå¸ÉÃeï DzÀ £ÀAvÀgÀ PÀªÀįÁ¨Á¬Ä EªÀgÀ ¸ÀévÀÄÛ”.
Therefore he argued that the boundary thus mentioned in Ex.P5 shows very clearly that it is a common passage. The 2nd plaintiff derives his interest through T.N.Krishnamurthy and he cannot assert that the passage belongs to him and the 1st plaintiff only. The defendants were given right to use this passage. This is the only way available to them to have access to the main road and thus, easement by way of necessity arises and the trial Court is justified in dismissing the suit and granting the counter claim.
9. The above arguments give rise to following points for discussion:
(i) Whether the findings given by the trial Court that defendants can make use of the passage as an easement of necessity is correct?
(ii) Whether the judgment of the trial Court needs to be interfered with?
Reasons:
On a scrutiny of evidence it is found that when the legal heirs of Lakshminarayan Rao sold the entire property described in item Nos.1 and 2 of the schedule to Sathyoji Rao on 19.10.1968, a passage on the southern side of the property retained by the vendors was given to his exclusive use. However, the vendors reserved certain rights to make use of the door that existed on the southern side and also on the sanitary line fixed beneath the earth where the passage was left for the purchaser’s use. This sale deed also contains a recital that in case the vendors would sell the property, they should close the door on the southern side and that the purchasers from them should obtain a separate sanitary line in the front of the entire building. A plain reading of this sale deed indicates that item Nos.1 and 2 of the plaint schedule were sold to Sathyoji Rao as a single unit along with exclusive right over the passage. But in Ex.P2, the sale deed executed by Sathyojirao in favour of 1st plaintiff, it is mentioned that there exists a common passage. In Ex.P5, sale deed executed by T.N.Krishnamurthy in favour of H.N.Srinivasamurthy, the southern boundary is mentioned as a common passage. This T.N.Krishnamurthy is another purchaser from Sathyoji Rao and thereafter, he sold the property to H.N.Srinivasamurthy, the second plaintiff. After the sale in the year 1968, as has been stated in the written statement, the daughters of Lakshminarayana Rao released their right and interest in favour of their brothers in respect of the property retained by them after selling to Sathyoji Rao. Thereafter, there took place a partition among the sons of Lakshminarayan Rao on 27.2.1985 as per Ex.D6. According to this partition deed, property described in ‘E’ schedule was allotted to Smt.Kamalamma the widow of Sri.B.Rajashekar Rao, who was one of the sons of Lakshminarayan Rao. The property described in ‘E’ schedule measures East to West 23.9 ft. and North to South 14.6 ft. and the southern boundary is shown as 4 ft. common passage. Ex.D5 is a release deed dated 5.9.1984 executed by the daughters of Lakshminarayan Rao in favour of their brothers and in this release deed also the southern boundary is shown as 4 ft. common passage.
Ex.D7 is another release deed dated 29.5.1986 executed in favour of Smt.B.R.Geetha in respect of ‘E’ schedule property of the partition deed dated 27.2.1985 i.e., Ex.D6 and in this release deed also the southern boundary is shown as common passage. Thereafter, this B.R.Geetha on 30.3.1992 sold the very same property to Mohanakrishna by executing a sale deed as per Ex.D8. In this sale deed also the southern boundary is mentioned as common passage. The defendants purchased the property from Mohanakrishna as per Ex.D9 in which again the southern boundary is mentioned as common passage. Therefore, if all these documents are perused, the inference that can be drawn is that the southern side boundary is being used as a common passage not only by the plaintiffs but also defendants and their predecessors-in-title. But, the first sale deed in favour of Sathyoji Rao states that it was a passage left for his exclusive use and therefore it was argued by appellants’ counsel that the appellants-plaintiffs are not bound by what is mentioned in the release deeds and the partition deed which D.W.1 has got marked. This argument is plausible and this point will be dealt with later.
10. If the oral evidence is seen, P.W.1 very clearly admits in the cross-examination that this 4 ½ ft. passage is the only passage which provides access to the defendants to the main road i.e., East Anjaneya temple street. He has also stated that he does not suffer any financial hardship if defendants make use of the passage. Further he has stated that if vehicles are not parked in the common passage, he does not suffer any obstruction. D.W.1, the 1st defendant, has stated that it is the only passage available to him.
11. The inferences that can be drawn from the evidence on record are that when items No. 1 & 2 of the plaint schedule were first sold to Sathyoji Rao in the year 1968, item No.3 of the plaint was also a part of that sale and that the subsequent transactions of release, partition and sale indicate that everybody treated item No.3 of the plaint schedule as a common passage, and everybody has been using it as a common passage only. Very particularly in the sale deeds that Sathyoji Rao executed, southern side boundary is shown as common passage. That means Sathyoji Rao forwent his exclusive right over this passage. The conduct of parties in treating the passage to be common assumes importance. In a situation like this, imposition of easementary right by defendant does not arise. The defendants may have founded the counter claim asserting their right to make use of the passage arising from necessity. But the ‘easement by necessity’ arises when a transfer, bequeath or partition takes place. In this case, there were several transfers; and actually Sathyoji Rao could have claimed right to make use of the passage as a necessity had not that passage been sold to him. It was actually sold and subsequently when he sold the properties, he treated item No.3 to be a common passage as is evident from sale deeds and therefore, the plaintiffs cannot prevent the defendants from making use of the passage. If according to plaintiffs, ownership right over the passage still existed in them, they should have sought a declaratory relief to that effect. This relief having been not sought, a mere suit for injunction is not maintainable. At the same time it should also be made clear that the defendants cannot assert easementary right over the passage. Since it is a common passage, the plaintiffs do have as much right as the defendants and neither of the parties should cause obstruction to the use of passage by the other. Therefore, the judgment of the trial court need not be interfered with, though it is not possible to concur with its finding that the defendants have acquired right of easement by necessity.
The appeal is dismissed, there is no order as to costs.
Sd/bkp Sd/- JUDGE