IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.NO.1344/2006(DEC/INJ) BETWEEN 1. SRI BASAVALINGAIAH, S/O LATE BASAMMA AND HONNAGANGAIAH AGED ABOUT 58 YEARS, R/A SRIPATHYHALLI, BARAGENAHALLY POST, SOMPURA HOBLI, NELAMANGALA TALUK BANGALORE RURAL DISTRICT 562 139. (SINCE DEAD AS PER COURT ORDER DT.06.9.10.
2. SRI RENUKAIAH S/O LATE BASAMMA @ HONNAGANGAIAH AGED 56 YEARS, PROP. HOTEL DAKSHINA KASHI, SHIVAGANGA, BANGALORE RURAL DISTRICT, PIN CODE -562 139.
3. SRI SHIVANNA S/O LATE BASAMMA @ HONNAGANGAIAH AGED 54 YEARS PROP. HOTEL DAKSHINA KASHI SHIVAGANGA, BANGALORE RURAL DISTRICT PIN CODE 562 139 4. SRI BASAVARAJU S/O LATE BASAMMA HONNAGANGAIAH, 53 YEARS R/AT NO.P-62, SHIVAGANGA, BANGALORE RURAL DISTRICT, PIN CODE 562 139 5. SRI GANGADHARAIAH, S/O LATE BASAMMA HONNAGANGAIAH 51 YEARS, SRIPATHYHALLI, BARAGENAHALLY POST, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT- 562 139 (SINCE DEAD AS PER COURT ORDER DATED 06.09.2010) 6. SMT. SHIVAGANGAMMA W/O RAJANNA D/O LATE BASAMMA HONNAGANGAIAH 60 YEARS, AGRAHARA VILLAGE, DODDABALLAPUR TALUK BANGALORE RURAL DISTRICT -562 134.
7. SMT PARVATHAMMA D/O LATE BASAMMA HONNAGANGAIAH 49 YEARS, R/AT SRIPATHYHALLI BARAGENAHALLY POST, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT 562 139. APPELLANT NO.1 TO 7 ARE LEGAL REPRESENTATIVES OF SMT.BASAMMA.
8. SMT GANGAMMA W/O HONNAGANGE GOWDA 76 YEARS, R/AT SRIPATHYHALLI BARAGENAHALLY POST SOMPURA HOBLI NELAMANGALA TALUK BANGALORE RURAL DIST- 562 139 (SINCE DEAD APPELLANT NOS.9, 10 AND 11 ARE LEGAL REPRESENTATIVES) 9. SRI RAJANNA S/O HONNAGANGE GOWDA 53 YEARS R/AT SRIPATHYHALLI, BARAGENAHALLY POST, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT- 562 139 10. SNT.SAVITHRAMMA W/O VEERABHADRAIAH D/O HONNAGANGE GOWDA 47 YEARS, R/AT HARLUR VILLAGE, HARALUR POST, TUMKUR TALUK, TUMKUR DISTRICT-512 199.
11. SRI HONNAPPA S/O HONNAGANGE GOWDA, AGED ABOUT 32 YEARS R/AT SRIPATHYHALLI BARAGENAHALLY POST, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT 562 139. ... APPELLANTS (BY SMT H R ANITHA, ADVOCATE FOR APPELLANT NOS.2 TO 4, 6,7 AND APPELLANT NO.9 TO 11 APPEAL ABATED AGAINST APPELLANT NO.1 AND APPELLANT NO.5 VIDE ORDER DATED 06.09.2010) AND :
SRI BASAVARAJAPPA S/O LATE GANGAPPA AGED ABOUT 53 YEARS R/AT SRIPATHYHALLI, BARAGENAHALLY POST SOMAPURA HOBLI NELAMANGALA TALUK BANGALORE (R) DIST -562 139. ... RESPONDENT (BY SRI S SHANKARANARAYANA, ADVOCATE) THIS RSA IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DT.21.12.2005 PASSED IN R.A.NO.79/2000 ON THE FILE OF THE PRESIDING OFFICER, DISTRICT AND SESSIONS JUDGE, FTC-II, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DT.31.3.1999 PASSED IN O.S.NO.254/1989 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, NELMANGALA.
THIS RSA COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is by the legal heirs of original 1st defendant - Basamma and widow and children of late Honnagangegowda who were defendants 2(a) to 2(d) in OS.No.136/1983 (New OS.No.254/1989).
2. Admittedly, OS.No.136/1983 is filed by Basavarajappa, the sole respondent herein for the relief of declaration that he is entitled to right of way over lands comprising Sy.Nos.53 and 30 of Sripathihalli, Nelamangala Taluk, Bengalauru District, belonging to defendants 1 and 2; to restrain defendants 1 and 2, their agents, servants and successors perpetually from interfering with or obstructing in any manner either physically or by use of force or threat to the plaintiff, his men and cattle etc., from using of the cart road in Sy.Nos.53 and 30 belonging to defendants 1 and 2 to reach the suit schedule land bearing Sy.No.31 belonging to the plaintiff for the purpose of agricultural activity; to pay damages to plaintiff in a sum of Rs.10,800/- with interest at 18% p.a., from the date of suit till date of payment; for a direction to defendants 1 and 2 to make good the damages suffered by the plaintiff on account of loss of crop over the years from the date of suit till date of restoration of the right of way, plus interest on the damages to be determined and for other consequential reliefs.
3. The prayers sought by the plaintiff are based on the plea that he is the owner of land bearing Sy.No.31 and defendants 1 and 2 are the owners of land bearing Sy.Nos.53 and 30 of Sripathihalli, Sompura Hobli, Nelamangala Taluk, Bengaluru District. The property of the plaintiff is defined in the schedule to the plaint, wherein while describing the suit schedule property by its boundaries it is stated that on the western side of plaintiff’s property land bearing Sy.No.30 belonging to 2nd defendant is situated and on southern portion Sy.No.53 and portion of Sy.No.30 belonging to 1st and 2nd defendant is situated.
4. The sum and substance of the pleadings is that plaintiff and defendants 1 & 2 have purchased land bearing Sy.Nos.30, 31 and 53 from a family which earlier owned all these lands. In the said family which is consisting of three brothers by name Channegowda, Kempamaraiah and Maregowda. It is stated that plaintiff’s grand father purchased suit schedule property in 3 bits under 3 different sale deeds between 1941 and 1958. Whereas, defendants 1 and 2 also have purchased some properties in the year 1975, from some of the members of the same family, which is not in dispute by anybody. According to plaintiff, the land which he has purchased in 3 bits is landlocked. Therefore, he cannot reach said land without passing through land bearing Sy.Nos.53 and 30 belonging to defendants 1 and 2.
5. In the said suit, on service of summons, defendants 1 and 2 entered appearance. They do not dispute the fact that the plaintiff and defendants 1 and 2 are owners of land bearing Sy.Nos.31, 53 and 30 respectively as stated in the plaint. They also admit that the plaintiff and defendants 1 and 2 claim title to the property held by each of them by the members of very same family which has sold the said properties to plaintiff and defendants 1 and 2 at different points of time. It is also not in dispute that the suit schedule property is landlocked. However, the only defence raised by defendants 1 and 2 in their written statement is that in the middle of Sy.No.53 a stream is running from north to south which is 16 feet in width and 4 to 8 feet in depth and the said stream having become dry, the same is being used by all the villagers including the plaintiff to reach the main road of Sripathihalli from suit land. It is also contended that the plaintiff is not using any other paths, much less pathway which is said to be in existence in the land bearing Sy.Nos.53 and 30 belonging to defendants 1 and 2.
6. With the aforesaid pleadings, the court below proceeded to frame the following issues for consideration:
“1. Whether the plaintiff proves that he was acquired a right of way over a 10 ft., wide bund running across S.Nos.53 and 30 of Sripathihalli village to take his men, cattle and cart to his agricultural land in S.No.31 of the said village as alleged in para 5 of the plaint?
2. Whether the plaintiff proves that the defendants obstructed his right of way as alleged in para 9 of the plaint?
3. Whether the plaintiff is entitled to the relief of declaration and permanent injunction sought for?
4. Whether the plaintiff is entitled to damages? If so, to what extent?
5. What reliefs?”
7. In the said suit, on behalf of the plaintiff, plaintiff – Basavarajappa examined himself as PW.1. In addition, he has also examined 5 other persons as PWs.2 to 6, produced and marked 20 documents as Exs.P1 to P20. It is necessary to mention that the most relevant piece of evidence among the exhibits P1 to P20 is Ex.P16 – Commissioner’s reply to the questions raised by plaintiff and defendants with sketch at Ex.P.16(a) and the report of the Court Commissioner at Ex.P17. Incidentally, the Court commissioner is examined as PW.6, who was the ADLR at the relevant point of time. He was appointed by the trial court to conduct spot inspection and to give his report along with answers to the questions which are raised by both the parties to the suit. The other documents are basically documents of title and revenue documents with reference to suit property.
8. On behalf of the defendants one Rajanna, who is defendant No.2(b) s/o Honnagangegowda was examined as DW.1. He produced in all 6 documents in support of his evidence, which are Exs.D1 to D6. They are Uthara copies and village map to demonstrate that there is no nakasha road in existence in Sy.Nos.53 and 30 belonging to defendants 1 and 2.
9. Based on the aforesaid pleadings, the trial court proceeded to answer issues 1 to 4 which are with reference to plaintiff’s plea that he has acquired right of way over Sy.Nos.53 and 30 of Sripathihalli village to take his men, cattle and cart for his agricultural activity on land bearing Sy.No.31 in the negative; with reference to alleged obstruction by defendants 1 and 2 to plaintiff in the negative; with reference to plaintiff’s right to seek relief of declaration and permanent injunction in the negative and with reference to claim for damages also in the negative, consequently, dismissed the suit of the plaintiff by judgment and decree dated 31.3.1999.
10. Being aggrieved by the same the plaintiff preferred an appeal in RA.No.79/2000 on the file of Fast Track Court - II, Bengaluru Rural District, Bengaluru, wherein the lower appellate court on appreciation of the grounds of appeal with reference to finding on issues by the trial court as well as pleadings in the trial court proceeded to frame the following point for consideration:
“Whether the Trial Court has erred in appreciating the evidence on record and that, the findings given, and the conclusion reached by the Trial Court are opposed to the facts and law and that the interference of this Court in the Judgment and Decree of the lower court is necessary?”
11. It is seen that the lower appellate court on re- appreciation of the material on record proceeded to allow the appeal by its judgment and decree dated 21.12.2005 in setting aside the judgment and decree passed by the trial Court in dismissing the suit of the plaintiff, consequently, declared that the plaintiff is entitled to the relief of right of way over the lands comprised in Sy.Nos.53 and 30 of Sripthihalli village belonging to defendants 1 and 2 respectively. It has also restrained defendants 1 and 2 perpetually from interfering and obstructing the plaintiff, his men, cattle, etc., in the user of the pathway existing in the land of defendants bearing Sy.Nos.53 and 30 to enable the plaintiff to reach his land bearing Sy.No.31.
12. The divergent finding of the lower appellate court in RA.No.79/2000 is subject matter of this second appeal by defendants 1 and 2 on the ground that the lower appellate court has committed serous error in not appreciating the defence raised in the original suit and also the observation made by the Court Commissioner – PW.6 (the ADLR) in reply given in Ex.P16 and report at Ex.P17. It is further contended that though there is alternate road available to the plaintiff, deliberately he is trying to force himself into the property of defendants 1 and 2 to reach the road to Sripathihalli village when alternatively he has a road available next to the stream, which has become defunct without any water passing through said stream for several years; that the said stream being filled-up with mud has come to the level of road; that the same being used as a road by the plaintiff and various other persons is not seen by the lower appellate court. Therefore, the finding given by the lower appellate court is required to be set aside and the judgment of the trial court is required to be affirmed.
13. When this matter came up for admission before this Court on 2.1.2012, a Coordinate Bench of this Court has admitted this appeal to consider the following substantial question of law:
“ Whether the courts below were justified in recording a finding that the plaintiff had established a right of way passing through Survey Nos.30 and 53 as the only access to his land in Survey No.31 in the facts, circumstances and evidence on record?”
14. Heard Smt.H.R.Anitha, learned counsel appearing for the appellants and Sri.S.Shankaranarayana, learned counsel for the sole respondent. Perused the grounds urged in this second appeal in the light of the finding rendered by both the courts below in their judgments, thereafter the substantial question of law is answered in the affirmative for the following reasons:
Admittedly, Sy.No.31 belonging to the plaintiff and Sy.Nos.53 and 30 belonging to defendants 1 and 2 are situated adjacent to each other as could be seen in Ex.P16(a), the sketch prepared by ADLR – PW.6. It is also not in dispute that all the 3 lands, namely Sy.Nos.31, 53 and 30 earlier belonged to the family of 3 brothers, namely Channegowda, Kempamaraiah and Maregowda, which has devolved upon their respective legal heirs over a period of time. It is further not in dispute that there were partitions in the said family, wherein the joint family properties are distributed among various legal heirs of aforesaid three brothers, who in turn have sold different properties in bits and pieces to plaintiff and defendants 1 and 2 as well as to various other persons at various points of time.
15. So far as plaintiff’s claim to suit schedule property is concerned, it is under three different sale deeds said to have purchased from three persons from the said family between 1941 and 1958. So far as defendants 1 and 2 are concerned, they have purchased land bearing Sy.Nos.53 and 30 some time around 1975 and thereafter, which is not in dispute. It is also not in dispute that the plaintiff is purchaser of some portion of land in Sy.No.31 at the earliest point of time. Admittedly, it was landlocked as on the date he purchased the said property and continues to be landlocked this day also i.e., on all sides of his property bearing Sy.No.31 there is the property belonging to others and there is no direct public road/village road/nakasha road abutting the property owned by the plaintiff to enable him to reach the road to village or to Hobli or Taluka Headquarters. It is seen that this caused impediment in moving his men and material including cattle and cart for taking agricultural implements and for carrying out agricultural activity on his land bearing Sy.No.31. The plaintiff would state that when he purchased the land in Sy.No.31 between 1941 and 1958 the land which was sold to him is by the persons, who owned adjacent lands and they were not disturbing his use of adjacent lands to reach the main road. It is in this background he would state that he was using a path which was in existence in Sy.No.30 between ‘B’ and ‘C’ as could be seen in Ex.P16(a) – Survey sketch prepared by PW.6 and from that portion he would state that he was reaching the main road in the cart path, which is in existence between ‘B’ and ‘A’ in Sy.No.53 to reach the main road since 1941. However, he would state that subsequent to said portion being purchased by defendants 1 and 2, his right to move through that road is obstructed resulting in the plaintiff giving-up his agricultural activity.
16. To substantiate his pleadings, the plaintiff has adduced evidence by himself as PW.1. He has also taken the support of other villagers to adduce evidence and to demonstrate that he is not carrying on agricultural activity on Sy.No.31, which is seen in the oral evidence of PWs.2 to 6. So far as the existence of Cart road in Sy.Nos.53 and 30 is concerned, he has sought for verification of the same by appointment of Court Commissioner. It is at his request the trial court has appointed ADLR of Doddaballapura to conduct survey and to submit the report. While doing so, it has also directed him to take memo of instructions from both the parties and to give his reply to that. It is in this background Ex.P16 - reply of Court Commissioner has come on record, Ex.P17 is the Court Commissioner’s report, Ex.P16(a) is the sketch which is prepared by him to show the location of Sy.Nos.31, 53 and 30 of Sripathihalli village and existence of road from ‘C’ to ‘B’ and ‘B’ to ‘A’ through these properties to enable the plaintiff to reach the main road from which he can reach Sripathihalli. When the entire material available on record is seen, what is required to be considered is, whether the plaintiff is justified in seeking the relief of easement through these lands. In fact, when the flow of facts as available on record are looked into, it is seen that unless the plaintiff is provided a path either in Sy.Nos.53 or 30 it is not possible for him to reach the main road on the western side of the suit property to reach Sripathihalli or to Taluka headquarters.
17. However, learned counsel for the appellants tried to assert that there is a stream on the eastern side of plaintiff’s property. Though in the Commissioner’s report there is reference to that as stream being 16 feet in width and 4 to 8 feet in depth, it is stated that at present the same is filled up with mud and there is no stream as such and the same has become a road which is used as such by all the villagers including the plaintiff. Therefore, that is the alternate road which is available. It is only in the absence of such alternate road, the plaintiff can seek right of easement in the property of defendants 1 and 2 and when that being available, he cannot fall back on the property of defendants 1 and 2 to use the pathway in their land as the road to reach main road by way of right of easement. She also tried to interpret the Commissioner’s report which is at Ex.P17 and reply at Ex.P16 with reference to sketch at Ex.P16(a) to demonstrate the said point.
18. This Court is not in a position to accept the contention of learned counsel for the appellants for the reason that in this appeal this Court while deciding the claim of right of easement by one of the parties cannot declare the stream as road on the ground that it has become defunct. Though it is stated as such by the defendant 1 and 2 while hearing this appeal, there is nothing on record to demonstrate the same. However, this Court would observe that if the stream has dried-up, that the same is not being used as a stream and no water is running through that, it is open for the villagers to approach the authorities to see that the same is converted into a road provided, it is permissible in law. In such an event, if it is possible to convert that stream into a road, then the defence of defendants 1 and 2 in their written statement may be accepted that there is an alternate road available to the plaintiff but, till such time, the stream is declared as road, it is not open for this Court to accept the stream as road and to observe that the plaintiff has alternate road to reach the main road through the said stream. Therefore, till such time it is done, this Court has no other option but to accept the report of Commissioner at Ex.P17 and the sketch which is produced by the Court Commissioner at Ex.P16(a) to accept that there is a pathway in existence in land bearing Sy.Nos.53 and 30 of Sripathihalli belonging to defendants 1 and 2, which according to Court Commissioner is used by many other persons as road with the consent of defendants 1 and 2. Therefore, the same is also available to the plaintiff to be used as right of way to reach the main road and which shall be in force until such time an alternative road is created as stated by defendants 1 and 2.
19. In that view of the matter, this Court would confirm the judgment and decree passed by the lower appellate court by answering the substantial question of law in the affirmative. However, a further observation is also made that in the event of either defendants 1 and 2 or other residents of Sripathihalli village approaching the revenue authorities for formation of a road in the place where the stream was in existence and if such a prayer is accepted by revenue authorities on the ground that the stream is completely dried-up, then the right of plaintiff to insist for right of way on land bearing Sy.Nos.53 and 30 belonging to defendants 1 and 2 would come to an end and in such an event, he shall use the newly formed road to reach the main road instead of depending on the pathway situated in Sy.Nos.53 and 30 of Sripathihalli. Till such time, the present judgment would support plaintiff’s claim to use the Cart Road in existence on the land of defendants 1 and 2, who are appellants herein.
Accordingly, this appeal is dismissed.
Sd/- JUDGE nd/-