IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER 2021 Before The Hon’ble Mr. Justice B. M. Shyam Prasad Writ Petition No. 22437/2019 (GM-CPC) Between :
SRI. GEORGE SEBASTIAN S/O K V SEBASTIAN AGED ABOUT 51 YEARS OCC:AGRI R/O CHURCHGATE FARM VIA BSF STS-II YELAHANKA AIRFORCE STATION BENGALURU - 560 063.
... PETITIONER (BY SRI. VILAS RANGANATH DATAR ,ADVOCATE)
And :
SRI. C. SHASHIDHAR S/O M V C HANUMANTHAIAH AGED ABOUT 48 YEARS OCC:RATHNAMAHAL BUILDERS & DEVELOPERS R/O NO.2, RATHNAMAHAL WEST PARK ROAD BETWEEN 7TH & 8TH CROSS ROAD MALLESHWARAM BENGALURU - 560 003.
... RESPONDENT (BY SRI. S SHAKER SHETTY, ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN THE COURT OF SENIOR CIVIL JUDGE & JMFC DEVANAHALLI IN MA NO.12 OF 2018 AND ON PERUSAL OF THE SAME BE PLEASED TO QUASH/SET ASIDE THE ORDER PASSED BY IT DATED 25.04.2019 VIDE ANNX-Q WHEREBY RESTORING THE ORDER DATED 02.07.2018 VIDE ANNX-F PASSED IN OS NO.17 OF 2017 ON THE FILE OF THE COURT OF PRINCIPAL CIVIL JUDGE & JMFC DEVANAHALLI, BY EXERCISING POWERS UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner is the plaintiff in O.S.No.17/2017 on the file of the Principal Civil Judge and JMFC, Devanahalli [for short, 'the civil Court'], and he has impugned the order dated 25.04.2019 in M.A.No.12/2018 on the file of the Senior Civil Judge and JMFC, Devanahalli [for short, 'the appellate Court'].
2. The civil Court by its order dated 02.07.2018 has allowed the petitioner's application [I.A.No.1] under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 [for short, 'the CPC'] restraining the respondent from closing the entrance or in any way preventing the respondent from using the schedule 'C' property [subject property] and to maintain status quo in that regard. However, the appellate Court has allowed the respondent's appeal in M.A.No.12/2018 and set-aside the civil Court's order dated 02.07.2018 rejecting the petitioner's application for temporary injunction.
3. This Court has disposed of this writ petition along with another writ petition by order dated 11.11.2019. But, on a review petition filed by the petitioner in R.P.No.36/2020, the order dated 11.11.2019 insofar as the present petition is recalled and the petition is restored for reconsideration with liberty to the petitioner to seek restitution, if the petitioner's interests are affected by any event post this Court's order dated 11.11.2019. The petitioner has filed I.A.No.1/2021 for direction to the respondent to restitute the schedule 'C' property as a road with leave to the petitioner to use the same subject to the final adjudication of the suit.
4. The petitioner has sought for declaration of right of easement through schedule 'C' property which is described as a 15 feet common road between his land in Sy.Nos.45/5 and 46/5 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru [schedule 'A' property] and the respondent's land in Sy.No.43 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru [schedule 'B' property] and for permanent injunction.
5. The petitioner's case as pleaded and presented before this Court is encapsulated thus:
5[a] The petitioner’s father, Sri.K.V.Sebastian, was overseeing and looking after the lands in Sy.Nos.45 and 46 Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru [including the Schedule A Property] as he was a good friend of Sri.David Henderson, the then owner of this larger land. The lands in Sy.Nos.45 and 46 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru and the adjacent lands had access through a road that ran through the lands belonging to Indian Air Force. In the year 1984, the Indian Air Force blocked access, and the owners of these and the adjacent lands had to make alternative arrangements.
5[b] His father Sri.K.V.Sebastian, acting for the then owner of the lands in Sy.Nos.45 and 46 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru, has entered into an agreement with the owner of the land in Sy.No.42 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru for access along with the eastern boundary of such land. He has entered into this agreement not only for his benefit but also the benefit of the then owner of the land in Sy.No.43 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru [schedule 'B' property], Squadron leader Sri.R.P.Singh. He has paid a sum of Rs.7,500/- [Rupees Seven Thousand Five Hundred only] to the owner of the land in Sy.No.42, Sri.Krishnappa.
5[c] Ever since 1984, his father, Sri.K.V.Sebastian, and Squadron leader Sri.R.P.Singh were using the 20' feet road, which is the subject matter of the agreement dated 06.09.1984. Insofar as access to the land in Sy.Nos.45 and 46 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru, Squadron leader Sri.R.P.Singh permitted the petitioner's father to use the 20 feet along the eastern boundary and 15 feet along the northern boundary of the schedule 'B' property as access. This 15' feet access along the northern boundary of the land in Sy.No.43 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru [schedule 'B' property] is described as schedule 'C' in the plaint.
5[d] The 20 Feet access along the eastern boundary of the schedule 'B' property is part of the road which runs North to South along the eastern boundary of not only the schedule 'B' property but also the land in Sy.No.42 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru and is identified as part of the Hunasemaranahalli - Hosahalli road. The only access for the Schedule A property is from Chagalahatti-Bagalur Road through the schedule ‘C’ property and from 20 feet Hunasemaranahalli Village and Hosahalli Village road.
5[e] The respondent, who has purchased the schedule ‘B’ property under three sale deeds dated 21.03.2002 from Squadron leader Sri.R.P.Singh, is trying to close the schedule 'C' property and to remove stone slabs used to construct the drain, and the respondent has constructed the schedule ‘C’ property.
6. The respondent's case as pleaded and presented before this Court is as follows:
6[a] The respondent has denied the petitioner's case that his father, Sri.K.V.Sebastian, entered into any agreement with the owner of the land in Sy.No.42 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru or that there was any arrangement between the petitioner's father and his vendor, Squadron leader Sri.R.P.Singh. He has purchased a total extent of 7 acres 31 guntas in Sy.No.43 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru under three different sale deeds on 21.03.2002. The revenue records are mutated in his name for the entire extent. This property is entirely free of all encumbrances including any easmentary right.
6[b] The respondent has the benefit of the decree in O.S.No.291/2015 on the file of the Principal Civil Judge and JMFC, Devanahalli. He has instituted this suit in O.S.No.291/2015 against the owners of the surrounding lands in Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru including the petitioner's brother. This suit is decreed on 15.06.2016 restraining them from interfering with the respondent's total ownership on 7 acres 31 guntas in Sy.No.43 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru – the schedule B property. The present suit is filed only to defeat this decree. The respondent is categorical that his ownership of the schedule ‘B’ Property is free of all encumbrances and claims.
7. The civil Court has allowed the petitioner's application for temporary injunction observing that it is undisputed that he is the owner of adjacent properties and the right asserted by the petitioner is peculiar and would have to be considered in a full-fledged trial and cannot be decided on perusal of title documents or Google maps or newspaper. The petitioner as such, has established a triable case and if any construction is put- up by the respondent during the pendency of the suit, the petitioner would be put to irreparable hardship. The civil Court has also opined that in the facts and circumstances of the case, the balance of convenience is in granting temporary injunction.
8. The appellate Court, while considering the merits of the civil Court's order, has assessed the petitioner's case in the premise that the petitioner is seeking declaration of easementary rights by way of easement of necessity but without the necessary pleadings inasmuch as the petitioner has not admitted the respondent's title to the schedule 'C' property and unless the petitioner admits the respondent’s title to the schedule ‘C’ property, a case for easement by way of necessity is not established. In this regard, the appellate Court has referred to the provisions of Section 4 of the Indian Easements Act, 1882 [for short, 'the Act'].
9. The appellate Court has also opined that though the petitioner asserts the right to use the schedule 'C' property as a common passage with the Indian Air Force blocking the earlier access in the year 1984, but the suit is filed only in the year 2016. Ultimately, the appellate Court has opined that the civil Court has not considered the petitioner's pleadings in proper perspective and it has exercised its discretion in granting the temporary injunction without considering the documents or the settled legal principles.
10. Sri.V.R.Datar, learned counsel for the petitioner submits that the appellate Court's reasoning is vitiated entirely because it is premised in the notion that the petition is filed for declaration of easement of necessity of way. However, in the light of paragraph No.12 of the plaint and the other assertions in the plaint, there cannot be any doubt that the petitioner's case is that he has acquired right of way by easement of prescription. The petitioner, in describing his own property and the respondent's property as schedule 'A and B' properties and in describing the common passage between these two properties as schedule 'C' property [even if the plaint assertions could admit of some ambiguity], has clearly stated that the schedule 'C' property is part of schedule 'B' property.
11. Sri.V.R.Datar relies upon the decision of the Hon'ble Supreme Court in Bachhaj Nahar Vs. Nilima Mandal and Ors reported in AIR 2009 SC 1103 to assert that the pleadings must always receive a liberal construction and a pedantic approach cannot be adopted in reading the pleadings; sometimes pleadings are expressed in words which may not be very obvious, and in such cases it would be the duty of the Court to ascertain the substance of the pleadings to determine the question. He emphasizes that if this test is applied the petitioner's case that he has acquired right of way through the respondent's land by way of easement of prescription is clear.
12. Sri. V.R.Datar argues that the petitioner's specific case is that his father acquired the right of access in land in Sy.No.42 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru from Sri.Krishnappa even before he acquired title to the adjacent lands in Sy.Nos.45 and 46 because he wanted access to such larger extent from the Chagalahatti-Bagalur Road via Hunasemaranahalli - Hosahalli road which runs along the northern boundary of the respondent's land [schedule B property].
13. Sri.V.R.Datar submits that the petitioner's father and others had to make other alternative arrangement with the Indian Air Force, the owner of the lands between Bellary main road and the lands to the western side of the subject properties, blocking access through its lands. The petitioner’s father, who was a close associate of the owner of the lands in Sy.Nos.43 and 45 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru, entered into agreement to acquire the right of way along the eastern boundary of the land in Sy.No.42 of the aforesaid Hunasemaranahalli village not only for his own use but also for the use of the then owner of the schedule B property.
14. Sri.V.R.Datar further submits that the petitioner's father, and thereafter every other person claiming under him have been using not only the Hunasemaranahalli - Hosahalli road but also the schedule C property. The respondent, who has purchased this land in the year 2002, is aware of the same. In these circumstances, it would be undeniable that the petitioner has established prima facie all the ingredients required to demonstrate easement by prescription as contemplated under Section 15 of the Act.
15. Sri V.R.Datar, next, relying upon certain photographs, submits that after the disposal of this writ petition as aforesaid, the respondent has constructed compound wall to the schedule C Property blocking access to the schedule A property, and to ensure equities in his favour he has also planted trees/plants so that the existence of the road cannot be established. The petitioner has no access to schedule 'A' property. In these circumstances, there must be an order for reinstatement of status quo ante. The petitioner is willing to deposit a reasonable amount that could be paid to the respondent in the event the petitioner fails in a suit for declaration of the right by way of easement of prescription. He suggests that a user fee of Rs.60,000/- [Rupees Sixty Thousand only] per annum would be a reasonable amount and the petitioner is willing to deposit this amount for the time that is taken for disposal of the suit.
16. Sri. S.Shaker Shetty, learned counsel for the respondent, begins his arguments by stating that Sri.V.R.Datar is presenting a case that is outside the bounds of the petitioner's pleading. He relies upon paragraph Nos.5 and 6 of the plaint to state that the petitioner's case is that the common passage, identified as schedule 'C', lies before the respondent's land measuring 7 acres 31 guntas in Sy.No.43 of Hunasemaranahalli village, Jala Hobli, Bangalore North (Additional) Taluk, Bengaluru [the schedule B property].
17. Sri. S. Shaker Shetty submits that the petitioner's case is founded on an easementary right, and the petitioner, to assert an easement, must assert rights as a 'dominant owner' identifying a 'servient owner' of a 'servient heritage'. The petitioner in asserting that the property identified as common passage is before the respondent's property [schedule ‘B’ Property] has not even pleaded that the respondent is the owner of a servient heritage or the necessary ingredients to establish an easementary right. The petitioner should have necessarily admitted the respondent's ownership of the schedule ‘c’ property, and in the absence of necessary pleadings in this regard the suit must necessarily fail. If the suit must fail, there cannot be an order of injunction.
18. Sri. S.Shaker Shetty relies on the principle reiterated by the Hon'ble Supreme Court in Devasahayam (Dead) by Lrs. Vs. P.Savithramma and others reported in (2005) 7 SCC 653. He points out that the Hon'ble Supreme Court has referred to its earlier exposition that it is a well established principle that a decree by a Court without jurisdiction is a nullity and the validity of such a decree can be unsettled whenever and wherever it is brought into fore, whether at the stage of execution and even in collateral proceedings. A defect of jurisdiction cannot be cured by consent of parties. Sri. S.Shaker Shetty canvasses that this proposition would apply to the present case because the petitioner has filed the suit for declaration of easement without even necessary pleadings.
19. Sri. S.Shaker Shetty also emphasizes that the petitioner's case must fail even otherwise. Under Section 15 of the Act, a party who asserts easement by way of prescription must establish that he has been exercising right of way for 20 [twenty] years without any interruption. The petitioner's father has admittedly purchased the land in Sy.Nos.45 and 46 of Hunasemaranahalli village, which includes the schedule 'A' property, in the year 1990. But the petitioner asserts rights under a partition amongst the family members in the year 2008 with a rectification in the year 2009, and a gift deed in the year 2013. These circumstances would demonstrate that even prima facie the necessary ingredients for establishing easement by prescription are not shown.
20. Sri. S.Shaker Shetty is emphatic in stating that the agreement of the year 1984 purportedly concluded with Sri.Krishnappa, the owner of the land in Sy.No.42 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru is a concocted document and the assertion of a prior acquaintance with the previous owner of Sy.Nos.45 and 46 is a convenient pleading just to create a semblance of right. This Court, given the limited scope of review under Article 227 of the Constitution of India, must not interfere, as the appellate Court, in exercise of its appellate jurisdiction, has considered all the relevant facts and circumstances in the light of the settled law.
21. It is undeniable that the appellate Court has examined the merits of the petitioner's case for grant of temporary injunction in the premise that the petitioner asserts easement by way of necessity and this becomes obvious from its reasoning in paragraph 10 onwards of the impugned order. But, the petitioner is asserting easementary right by way of prescription, and this Court must at this stage extract prayer No.1 which reads as "To declare the plaintiff's right of easement by prescription through schedule 'C' property." This Court must opine that the appellate Court in examining the petitioner's case from the perspective that he is asserting easement by way of necessity, has not considered certain circumstances which are material.
22. The petitioner's case is that his father was managing the larger extent of the land in Sy.Nos.45 and 46 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru [including the schedule A property]. Not only his father, who was overseeing the lands in Sy.Nos.45 and 46 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru, but even others had to enter into certain transactions to secure access from Bellary Main Road through arterial road [Chagalahatti -Bagalur Road] because of the IAF’s action in the year 1984 to close access through its lands.
23. The petitioner, who claims under his father who has purchased the larger lands in Sy.No.45 and 46 of the aforesaid Hunasemaranahalli village in the year 1990, has detailed that his father had entered into an agreement with the owner of the land in Sy.No.42 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru to secure access through that land not only for himself but also the owners of the adjacent lands. This has ensured access to the larger extents [including schedule B and C properties from the Hunasemaranahalli - Hosahalli Road through the land in Sy.No.42, which is now also identified as Hunasemaranahalli – Hosahalli Road, and this together with the schedule 'C' road constitutes access to the land in schedule A property from Chagalahatti-Bagalur Road. This access has prevailed for over 30 years preceding the date of the suit.
24. The provisions of Section 15 of the Easement Act, 1882 reads as follows:
"15. Acquisition by prescription.— Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person’s land, or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. 1 1 Explanation I.—Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
25. These provisions of Section 15 of Easement Act, 1882 have been read to declare that for an easement, the enjoyment must have been peaceable as an easement and as a right openly for a period of 20 years without interruption. The petitioner relies extensively on Google Maps and certain photographs to establish the different segments of his case, and these documents are perused. It cannot be denied that if the petitioner establishes different segments of his case, he Explanation II.—Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.
Explanation III.—Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV.— In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
could successfully argue that he is entitled for declaration of easement by prescription. These circumstances cannot be brushed out without a trial. Therefore, it would be reasonable to opine that the petitioner has made out a case for trial and thus, a prima facie case for grant of temporary injunction.
26. The appellate Court is impressed by the assertion that the petitioner has described the common passage [schedule ‘C’ property] as being between his land and the respondent's land measuring 7 acres 31 guntas [schedule 'B' property] and therefore, the petitioner does not admit the respondent’s ownership. This is also a submission emphasized by Sri. S Shekar Shetty. However, this Court must opine that Sri. V.R.Datar is right in relying upon the decision of the Hon'ble Supreme Court in Bachhaj Nahar Vs. Nilima Mandal and Ors to contend that the Courts must ascertain the substance of the pleadings and must not place undue emphasis on the form.
27. The petitioner has stated in his plaint that his father purchased access through the land in Sy No. 42 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru for the common benefit of the schedule 'A' property, schedule 'B' property and the adjacent properties, with the understanding that Squadron Leader Sri R.P.Singh (respondent's predecessor-in-title) would in turn provide access to schedule 'A' property. At this threshold stage, this plea that the respondent's vendor agreed that he would in turn provide access to the larger lands in Sy No. 45 and 46 of Hunasemaranahalli Village, Jala Hobli, Bengaluru North [Additional] Taluk, Bengaluru and accordingly access was established, must receive a liberal consideration to test whether the petitioner has admitted the respondent’s title to the schedule ‘C’ property or not. The petitioner's case cannot be brushed aside only because of the statement in paragraph No.6 or the description of the properties as schedule 'A' and 'B'.
28. If this plea could be construed liberally as emphasized by Sri. V.R.Datar, the requirements of Section 4 of the Indian Easements Act, 1882 which contemplates ‘dominant heritage’, ‘servient heritage’ and ‘dominant owner’ and ‘servient owner’ could also be established. Further, there is nothing on record to indicate that the petitioner has access to the Bellary Main Road via Chagalahatti -Baglaur Road other than through the access from the common road described as schedule 'C' property and Hunasemaranahalli-Hosahalli Road.
29. The balance of convenience and irreparable hardship will also have to be examined keeping these factors in mind. The aforesaid circumstances viz., a liberal construction of the pleadings, the petitioner’s case is based on a prescriptive right and not on the right of necessity, the absence of material to establish an alternative access and that the petitioner is not a party to the proceedings in O.S.No.291/2015 should be considered. This Court opines non-consideration of material circumstances has resulted in an erroneous exercise of the appellate jurisdiction and therefore, there must be interference under Article 226 of the Constitution of India.
30. The respondent, as obvious from the photographs, has constructed a compound wall for the schedule 'C' property, which is described as common passage, and has planted saplings. The petitioner, as stated by Sri. V.R.Datar, is willing to deposit a certain amount every year and is also seeking for direction for the expeditious disposal of the suit. These changes, which are alleged to be post this Court’s order dated 08.05.2019, cannot be permitted to prevail during the trial in the facts and circumstances discussed. As such, the appellate Court's order cannot be sustained and must be quashed with certain directions. Hence, the following:
ORDER [a] The petition is allowed, and the appellate Court's order dated 25.04.2019 in M.A.No.12/2018 on the file of the Senior Civil Judge and JMFC, Devanahalli is quashed directing the respondent to permit access to the petitioner through the area identified as 15' feet common passage along the Northern boundary of the schedule 'B' property, subject to the condition that the petitioner shall deposit with the civil Court, within a period of six [6] weeks from the date of receipt of a certified copy of this order, a sum of Rs.5,00,000/- (Rupees Five Lakhs Only).
[b] The respondent shall take all such reasonable measure as would be necessary to provide access to the petitioner's lands [schedule A property] through the area described in schedule 'C' of the plaint; and [c] The civil Court shall invest Rs.5,00,000/- [Rs. Five lakhs only] in a fixed deposit with any Nationalized Bank and be disbursed to the respondent, subject to the final adjudication in the suit and in the event the petitioner fails in the suit for declaration.
SD/- JUDGE BSR/RB