IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.1541 OF 2015 BETWEEN:
1. REVANASIDDAPPA S/O LATE REVANNA AGED ABOUT 52 YEARS 2. RENUKAPPA S/O LATE REVANNA AGED ABOUT 50 YEARS 3. BASAVARAJU.R S/O LATE REVANNA AGED ABOUT 42 YEARS 4. SHIVANNA S/O LATE REVANNA AGED ABOUT 40 YEARS WORKING IN POLICE DEPARTMENT AT BAPUJINAGAR BANGALORE ALL ARE R/AT SESHAGIRIHALLI VILLAGE BIDADI HOBLI RAMANAGARA TALUK RAMANAGARA DISTRICT-571114 5. REVAMMA W/O SAMPANGIRAMAIAH D/O LATE REVANNA AND HOMBAMMA AGED ABOUT 58 YEARS GOLLARAPALYA VILLAGE BIDADI HOBLI, RAMANAGARA TALUK RAMANAGARA DISTRICT-571114 6. ERAMMA W/O NARASIMHAIAH D/O LATE REVANNA AND HOMBAMMA AGED ABOUT 56 YEARS ANKAIAHNAPALYA VILLAGE THAVAREKERE HOBLI BANGALORE SOUTH TALUK-571118 7. RENUKAMMA W/O GOVINDAPPA D/O LATE REVANNA AND HOMBAMMA AGED ABOUT 45 YEARS GOLLARAPALYA VILLAGE BIDADI HOBLI RAMANAGARA TALUK RAMANAGARA DISTRICT-571114 8. KANTHAMMA W/O CHIKKANNA D/O LATE REVANNA AND HOMBAMMA AGED ABOUT 37 YEARS SHIVANAHALLI, RAJAJINAGAR BANGALORE-560010 (BY SRI H.N.SHASHIDHARA, ADVOCATE) AND:
CHIKKAVEERAIAH S/O LATE VEERABHADRAIAH AGED ABOUT 82 YEARS SESHAGIRIHALLI VILLAGE ...APPELLANTS BIDADI HOBLI RAMANAGARA TALUK RAMANAGARA DISTRICT-571114 …RESPONDENT (BY SRI MOHAN REDDY H.SAWKAR, ADVOCATE FOR C/R) THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908, AGAINST THE JUDGMENT AND DECREE DATED 28.07.2015 PASSED IN R.A.NO.153/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & C.J.M, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMNENT AND DECREE DATED 11.10.2013 PASSED IN O.S.NO.84/2005 ON THE FILE OF THE ADDL.CIVIL JUDGE & JMFC AT RAMANAGARA.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is a plaintiffs’ second appeal challenging the judgment and decree dated 28.07.2015 passed by the Court of the Principal Senior Civil Judge & CJM, Ramanagara, dismissing their appeal in R.A.No.153/2013 by affirming the judgment and decree dated 11.10.2013 passed by the Court of the Additional Civil Judge & JMFC, Ramanagara, dismissing the suit in O.S.No.84/2005.
2. Facts leading to the case are as under:
The appellants/plaintiffs filed a suit in O.S.No.84/2005 for a declaration to the effect that the suit schedule property belongs to the defendant and the plaintiffs have got right over the same to reach their houses and also for consequential relief of injunction to restrain the respondent/defendant from putting up any construction over the suit passage. The appellants/plaintiffs averred in the plaint that there exists Rama Mandira at property No.1 and the defendant’s property is situated at property No.2. It is further averred in the plaint that property No.2 originally belonged to Smt. Chikkeramma and the present defendant succeeded to the said property as foster son. The appellants/plaintiffs also admitted in the plaint that the suit in O.S.No.144/1993 was filed by the respondent/defendant against appellant Nos.1 to 4/plaintiffs seeking relief of permanent injunction. Further, they have admitted that the said suit was decreed by the Trial Court and the same was affirmed by the Lower Appellate Court in R.A.No.22/1997. It is further averred in the plaint that the defendant taking advantage of dismissal of R.A.No.22/1997 made an attempt to block the aforesaid open space and if the respondent is not injuncted, the appellants would be deprived of way to reach their properties. The appellants also averred in the plaint that property nos.1 and 2 are part and parcel of the property purchased by Hucchiraiah and he had retained the open space after giving some portion to Rama Mandira as per the registered sale deed dated 10.10.1938 executed in favour of Hucchiraiah. On these set of facts, the appellants/plaintiffs sought for the relief of declaration and consequential relief of injunction.
3. The respondent/defendant, on receipt of summons, contested the proceedings by filing written statement. The respondent/defendant stoutly denied the entire averments made in the plaint. The defendant has even explained as to how the suit property devolved upon. He specifically contended that the present suit is hit by doctrine of res judicata as the lis between the parties was the subject matter of the earlier suit in O.S.No.144/1993. He also specifically averred in the written statement that the relief of easementary right sought by the plaintiffs in the suit is hopelessly barred by limitation.
4. Based on the rival contentions of the parties, the Trial Court formulated the following issues:
1. Whether the plaintiffs prove that they are the absolute owners in possession of suit schedule property being used as right of way by them to reach their respective house Nos 4 and 5?
Note: On 26-03-2012, the above issue was ordered to be deleted by my learned Predecessor and in its place, following issue was framed, which is evident from the back sheet of Issues framed in the suit.
1. Whether the plaintiffs prove that the suit schedule property described in schedule ‘L’ shaped colored in red ink belong to defendant and plaintiff’s have got right over the same to reach their respective house Nos 4 and 5 as mentioned in the sketch?
2. Whether the plaintiffs prove the alleged interference by the defendant over the suit schedule property?
3. Whether the defendant proves that the suit is hit by principles of Res-Judicata?
4. Whether the defendant proves that suit is barred by law of limitation?
5. Whether the defendant proves that he has perfected his title over the suit schedule property, by way of adverse possession?
6. Whether the plaintiffs are entitled to the reliefs as prayed?
7. What Decree or Order?
5. The appellants/plaintiffs, in support of their contentions, got examined plaintiff no.4 as PW.1 and three witnesses were examined as PWs.2 to 4 and got marked the documents vide Exs.P1 to P30. The defendant, in support of his contentions, got examined himself as DW.1 and got marked the documents vide Exs.D1 to D14.
6. The Trial Court, after appreciating the oral and documentary evidence on record, answered issue nos.3 and 4 in the affirmative and proceeded to dismiss the suit of the appellants/plaintiffs.
7. The Trial Court while dealing with issue no.3 has meticulously examined the records. The respondent/defendant in support of his contention to demonstrate that the lis relating to existence of open space has been adjudicated in O.S.No.144/1993, has produced a copy of the judgment passed in O.S.No.144/1993 as per Ex.D1. In the said suit, the present appellants had taken a specific defence that there is an open space existing between property nos.1 & 2. This contention was negatived by the Trial Court in O.S.No.144/1993. The Trial Court having appreciated the evidence on record in O.S.No.144/1993 proceeded to hold that the open space is part and parcel of the property owned by the respondent/defendant and accordingly, decreed the suit in O.S.No.144/1993 restraining the appellants/plaintiffs from interfering with the respondent’s peaceful possession over the suit property. The said decree was affirmed by the Appellate Court in R.A.No.22/1997. In that view of the matter, the Trial Court was of the view that the dispute relating to open space existing between the property of the plaintiffs and the defendant was the subject matter in the earlier suit bearing OS No.144/1993 and hence, the matter being directly and substantially in issue in the earlier suit between the same parties would be hit by principle of res judicata. Accordingly, the Trial Court was of the view that the present suit was hit by principle of res judicata.
8. The Trial Court while dealing with issue no.4 has examined the relief sought by the present appellants/plaintiffs at the first instance when the suit in O.S.No.84/2005 came to be filed on 22.06.2005. It is relevant to carve out the relief of declaration sought by the appellants when the suit came to be filed in 2005, which reads as follows:
“a) To declare that suit schedule property which is described in the schedule is the property belonged to the plaintiffs and they have got right over the same to reach their respective houses 4 and 5.”
Thereafter, the appellants sought for amendment of the plaint and by way of amendment, they sought for the relief of declaration by claiming that they have got easementary right over the suit open space and in the process, they admitted the title of the respondent/defendant in the said prayer. It is also relevant to note that the plaintiffs only sought for amendment of the prayer. However, in support of the amended prayer, the appellants/plaintiffs did not seek to incorporate the ingredients of easementary relief. In this context, the Trial Court having examined the relief sought by the appellants/plaintiffs proceeded to hold that when the respondent/defendant had asserted title way back in 1993, the appellants ought to have sought easementary right then and there only. The present suit was filed in 2005 seeking the relief of declaration and the amendment was sought in 2011. In this context, the Trial Court having examined and assessed the pleadings and the evidence on record, held that the relief of easementary relief is hopelessly barred by limitation, and accordingly, proceeded to answer issue no.4 in favour of the respondent/defendant by answering the same in the affirmative.
9. The Trial Court was also of the view that PW.1 has admitted in unequivocal terms in the cross-examination that they have access on the western side and on the northern side. In this background, the Trial Court was of the view that as the appellant/plaintiffs have an alternative road, question of considering the relief of easementary right would not arise. Based on these reasons, the Trial Court proceeded to dismiss the suit.
10. The appellants, being aggrieved by the judgment and decree of the Trial Court, preferred an appeal before the Lower Appellate Court. Before the Lower Appellate Court, the appellants sought to produce additional documents by invoking the provisions of Order 41 Rule 27 of CPC. The Appellate Court, while hearing the matter on merits, dismissed the application. The Appellate Court, on reappreciation of the entire evidence on record, as final fact finding authority, recorded a finding that the ingredients of easementary right were not at all pleaded in the plaint.
11. The Trial Court was of the view as per Section 15 of the Indian Easements Act, 1882, acquisition by prescription clearly contemplates that access must have been peacefully enjoyed without interruption for a period of twenty years. The Appellate Court concurred with the reasoning assigned by the Trial Court that the appellants/plaintiffs have only sought for amendment in the prayer which cannot be considered in the absence of pleadings to that effect. The Appellate Court, on reappreciation of the evidence on record, has recorded a categorical finding that the respondent/defendant had asserted his title in the suit in O.S.No.144/1993 which came to be decreed and affirmed by the Lower Appellate Court in R.A.No.22/1997. In this back ground, the Lower Appellate Court was of the view that the appellants/plaintiffs all along had asserted title over the suit open space by contending that it is part and parcel of the property owned by them and they have retained the suit open space to have access to the main road and reach their houses. In that view of the matter, the Appellate Court was of the view that the appellants/plaintiffs cannot seek easementary right first time in the year 2011. The Appellate Court, on reappreciation of the evidence on record, concurred with the reasoning of the Trial Court that the appellants/plaintiffs have an alternative way to have access to their properties. Accordingly, the Appellate Court has confirmed the judgment and decree of the Trial Court and consequently dismissed the appeal. The appellants/plaintiffs being aggrieved by the judgment and decree of the courts below have filed the top noted second appeal.
12. Counsel for the appellants marshalling his arguments vehemently contended that both the courts below had erred in not examining the registered sale deed dated 10.10.1938 as per Ex.P2. He contended that the appellants/plaintiffs have placed documentary evidence on record and the same is not rebutted by the respondent/defendant by way of rebuttal evidence. He also vehemently contended that the earlier suit in O.S.No.144/1993 was filed for bare injunction. In that view of the matter, Section 15 of Easements Act has no application to the present case on hand. He brought to the notice of this Court that the concurrent findings recorded by the courts below suffer from perversity, and hence, the same would give rise to substantial question of law in the top noted appeal.
13. Heard the learned counsel for the appellants. Perused both the judgments of the courts below and lower court records.
14. It is not in dispute that the respondent/defendant had filed a suit in O.S.No.144/1993 and the present open space was the subject matter of the earlier suit. The respondent was asserting right over the suit open space by specifically contending that it is part and parcel of his property. To rebut the contention of the respondent/defendant, the present appellants who were defendants in the earlier suit relied on the registered sale deed dated 10.10.1938 which was the sale deed executed by Hucchiraiah. The contention of the appellants/defendant in the earlier suit was that the ancestor of the appellants had given some portion of the properties to Rama Mandira and the remaining portion was retained by him. The Trial Court, while deciding the rights of the parties in O.S.No.144/1993, has recorded a categorical finding that the present open space is part and parcel of property owned by the respondent/defendant wherein he has constructed a residential house and the vacant space is exclusively owned by him. The Trial Court in O.S.No.144/1993 had also taken note of Ex.D8, which is a licence produced by the present appellants wherein it shows clearly the existence of the property owned by the respondent/defendant. After meticulously examining the material on record and rival contentions, the Trial Court decreed the suit in O.S.No.144/1993 and the same was affirmed by the Appellate Court in R.A.No.22/1997. In that view of the matter, the dispute in regard to the suit open space being part and parcel of the property owned by the respondent/defendant has attained finality.
15. The material on record and the manner in which the present suit is filed, it can be gathered that the appellants/plaintiffs are re-litigating on the same cause of action which was the subject matter of O.S.No.144/1993. It is quite interesting to note that the appellants have filed the present suit on 22.06.2005 and the relief of declaration was sought to declare that suit schedule property which is described in the schedule is the property belonged to the plaintiffs and they have got right over the same to reach their respective houses 4 and 5.
16. As on 2005, the appellants/plaintiffs were asserting right and title over the suit open space and it was only in 2011, the appellants/plaintiffs by way of amendment sought deletion of the earlier declaratory relief and in the said place, the present appellants by way of amendment sought the easementary relief in the amended plaint. By way of amendment, the appellants/plaintiffs for the first time in 2011 have admitted the title of the respondent/defendant. It is also relevant to note that the appellants/plaintiffs have sought only amendment in the prayer column. However, there is absolutely no amendment sought in the plaint to incorporate the ingredients of the relief of easementary. It is trite that whenever a party seeks the relief of easementary, the party is required to assert the nature of easementary. Unless the party seeking the relief of easementary discloses the nature of easementary right which he has acquired, the court would not be in a position to grant the same. On a reading of the amended prayer, the courts below are forced to presume that the plaintiffs are seeking the relief of easementary right by way of prescription. If at all the appellants/plaintiffs are seeking the relief of easementary by prescription, then they are required to give the details in regard to the prescription rights over the suit open space. There are three distinct classes of rights of way. Whenever a private rights in the strict sense of the term vested in a particular individual is asserted, such rights commonly have their origin either in grant or prescription. The appellants/plaintiffs are asserting that they have been using the suit passage for more than 20 years and before such a right of way can be acquired by the appellants, the appellants/plaintiffs are required to prove that the enjoyment has been (1) actual; (2) open; (3) peaceable; (4) as of right;
(5) as an easement; (6) without interruption and (7) for twenty years. Unless all these ingredients are proved, no right of easement can accrue to the dominant owner.
17. In the present case on hand, there is absolutely no evidence to demonstrate that the appellants/plaintiffs have been using the said right for a full period of 20 years without interruption as contemplated under Section 15 of Easements Act. Admittedly, the respondent/defendant had filed a bare suit for injunction in O.S.No.144/1993 which was decreed and the same has attained finality. Even in the present suit, the appellants/plaintiffs were all along asserting title till 2011 where he sought amendment and got the relief of declaration of title deleted and then subsequently, sought relief of declaration asserting easementary right. If this period is deducted, the claim of the appellants/plaintiffs would not qualify under Section 15 of Easements Act.
18. When the appellants all along has been asserting title, they cannot be permitted at this stage to assert easementary right. In this background, both the courts below have rightly held that the relief of easmentary right sought by the plaintiffs in the suit is hopelessly barred by limitation. Since the Trial Court in O.S.No.144/1993 had recorded a categorical finding that the suit open space is part and parcel of the property owned by the respondent/defendant, the Trial Court was justified in answering issue no.3 in the affirmative.
19. It is also relevant to note that the respondent/defendant had elicited in the cross examination that the appellants/plaintiffs have an alternative way. If a party has an alternative way, question of considering the easementary by way of prescription would not be available to him. Both the courts below have meticulously examined the pleadings, oral evidence and documentary evidence and have proceeded to dismiss the suit of the appellants/plaintiffs. The judgments and decrees of the Courts below do not suffer from any perversity or serious infirmity. In that view of the matter, no substantial question of law would arise for consideration in this appeal. Consequently, the appeal is dismissed.
Sd/- JUDGE hkh.