R 1 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 3354 OF 2019 (GM-CPC) BETWEEN:
SRI. MUNJANDIRA A RAVI S/O M.S.APPAIAH, AGED ABOUT 71 YEARS, R/O NO. 396, II MAIN, 4TH STAGE, T.K.LAYOUT, OPP RTTC, MYSORE - 570 009.
SENIOR CITIZEN BENEFIT NOT CLAIMED.
… PETITIONER (BY SRI. ASHOK G V, ADVOCATE) AND:
1. SRI. CHATHURANA K SOMAIAH @ SOMAIAH, AGED ABOUT 54 YEARS, S/O LATE KUTTAPPA 2. SRI CHATHURANA K ARJUNA @ RAMESH, AGED ABOUT 52 YEARS, S/O LATE KUTTAPPA 3. SRI CHATHURANA K THIMMAIAH @ MUTHU AGED ABOUT 56 YEARS, S/O LATE KUTTAPPA ALL ARE R/AT ARVATHOKLU VILLAGE, MADIKERE TALUK, KODAGU DISTRICT - 571 201.
… RESPONDENTS (BY SRI. T K NAGESH KUMAR, ADVOCATE FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 07.11.2018 PASSED BY THE LEARNED SENIOR CIVIL JUDGE, MADIKERI O.S. 146/2014 VIDE ANNEXURE - H.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the plaintiff in the injunctive suit in O.S.No.146/2014, is knocking at the doors of writ court for laying a challenge to the order dated 07.11.2018, a copy whereof is at Annexure – H whereby, the learned Senior Civil Judge, Madikeri, having allowed respondents’ application, filed under section 11 of KCF & SV Act, 1958 (hereafter 1958 Act) has rejected petitioner’s valuation slip and further, directed him to value the suit under section 30 of the Act and pay the court fee accordingly. After service of notice, the respondents having entered appearance through their counsel, resist the Writ Petition.
2. Learned counsel for the petitioner vociferously argues that the impugned order has an error of law of enormous magnitude on it’s face, to the great prejudice of the plaintiff inasmuch as the court below proceeds on a wrong legal premises that the suit is founded on easement when it is not. In support of his submission, he banks upon the provisions of sections 4 & 7 of the Indian Easements Act, 1882 (hereafter 1882 Act) and a decision of Calcutta High Court in the case of Bengal Provincial Ry.
Co. Ltd Vs. Rajanikantha De & Ors, AIR 1936 Cal 564. He further argues that even otherwise also, section 30 of the 1958 Act permits him to compute and pay the court fee on the amount at which he has valued the relief in the plaint. So arguing, he seeks allowing of the Writ Petition.
3. Learned counsel for the respondents/defendants per contra vehemently contends that going by the plaint averments and the relief claimed, the suit is founded on the easement as defined under section 4 of the 1882 Act; by no stretch of imagination, contra stand can be countenanced; permitting the petitioner to pay the court fee in terms of his own valuation slip amounts to permitting him to play fraud on the law relating to court fees and the same would cause a great loss to the Exchequer; he further contends that the court below having considered the matter in the right perspective, has made the impugned order which cannot be faltered either in law or on facts. So contending, he seeks dismissal of the Writ Petition.
4. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the Petition Papers and the decision cited at the Bar.
5. The 1882 Act has been enacted “to define and amend the law relating to easements….” in the back drop of the comment of Sir Michael Westropp, the Chief Justice of Bombay High Court that “the law on the subject of easements for the most part to be found only in treatises and reports practically inaccessible to a large proportion of a legal profession in the Mofussil and to the subordinate judges”. Ordinarily, the expression “to define and amend the law relating to easements” would have meant that the Act is a complete and self contained code on the subject of easements. However, such a rule of construction does not avail inasmuch as the law relating to easements is supplemented by the Transfer of Property Act, 1882, Criminal Procedure Code, 1973 and Limitation Act, 1908 now re-enacted as Limitation Act, 1963.
6. Section 4 of the 1882 Act defines easement as under:
“An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners”.
[Other parts of the section not being much relevant are not reproduced] 7. Going by this definition, an easement can be termed as a privilege without profit which the owner of one land has a right to enjoy in respect thereof, in or over the land of another by sheer reason whereof that another is obliged to suffer by doing or by refraining from doing something. Corpus juris Secondum enlists the following essential qualities of an easements: (a) it is incorporeal; (b) it is imposed on corporeal property; (c) confers no right to share in the profits from such property; (d) is imposed for the benefit of corporeal property; (e) there are two distinct tenements i.e., the dominant to which the right belongs and the servient on which the obligation is imposed and (f) the ownership of the easement is separate and distinct from the land to which it is attached. This gives almost a precise idea as to what an easement is.
8. Where a Statute employs the Dictionary Clause, ordinarily the words used in different parts of the Statute shall have the meaning assigned to them in such clause.
However, the standard treatises on Construction of Statutes recognize exception to this general rule if there is an otherwise indication. Justice G.P. Singh in his “Principles of Statutory Interpretation” 13th Edition 2012 at page 360 states as under:
“when the legislature uses same word in different part of the same section or Statutes, there is a presumption that the word is used in the same sense throughout. The presumption is, however, a weak one and readily displaced by the context….”
The above opinio juris is founded on the decisions of the Hon’ble Supreme Court and of the House of Lords, which the Author refers to in the footnotes; be that as it may.
9. Section 7 of the 1882 Act has the heading “Easement restrictive of certain rights”. The section mentions of easements that are restrictions of enlisted rights; clause (b) of the said section reads as under:
“Rights to advantages arising from situation. -The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.”
10. Illustration (e) to the clauses (a) & (b) of this section reads as under:
“The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person. Explanation. - Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the "subjacent and adjacent soil" mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
This illustration, as rightly contended by the learned counsel for the petitioner recognizes the difference between the easement and the right which it restricts namely: the right of the petitioner to have the support naturally rendered to his land by the subjacent or adjacent soil of another person. The suit of the petitioner is founded not on the easement but his right that has been restricted by the easement, if any, as illustrated by the section. Therefore, section 30 of the KCF & SV Act, 1958 is not invocable. This legal difference between the two having been lost sight of by the court below, the impugned order is unsustainable.
11. It is bit difficult to accept the contention of the respondent that the suit of the petitioner is founded on the easement as exhaustively defined under section 4 of the 1882 Act, without causing violence to the text and context of the said section r/w section 7; it is possible to sustain an argument that the word easement employed in section 4 does not stricto sensu govern the provisions of section 7 there being some otherwise indication to the contra.
12. The reliance by the petitioner on the decision of Calcutta High Court supra does not come to his aid much inasmuch as the 1882 Act did not apply to Calcutta Province at all. There, the Court was heavily banking upon the law of easement as obtaining in England, which is a bit different from what the Act has codified. This apart, the question now being treated herein did not fall for consideration in its true sense. The court there had followed an English decision rendered in a bit different context.
13. Section 30 of the KCF & SV Act, 1958 reads as under:
“In a suit relating to an easement, whether by the dominant or the servient owner, fee shall be computed on the amount at which the relief sought is valued in the plaint, which amount shall in no case be less than1[rupees one thousand]:
Provided that, where compensation is claimed besides other relief relating to such easement, fee shall be paid on the amount claimed as compensation in addition to the fee payable on such other relief.
It mandates that in a suit founded on an easement, shall have the fee computed on the amount at which the plaintiff values the relief claimed in the plaint subject to the rider that such amount shall not be less than Rs.1,000/-. It is also a cardinal principle of suit valuation that the court should look at only the pleadings of the dominus litis i.e., what is averred in the plaint and not what is de hors of it vide Ram Narayan Prasad Vs. Atul Chander Mitra, (1994) 4 SCC 349. Thus, even if suit of the petitioner is assumed to be founded on easements, still his valuation of the relief sought for becomes the baseline for computation of court fee. This aspect of the matter has also been lost sight of by the court below which is swayed away by some observations made by the Kerala High Court in the case of K.J. Jacob Vs. Nandagopalan, 1982 KLT 83 and in the case of Jessy Raju Vs. Zacheria, (2011) 3 KLT 809, these observations having been made in some different contexts in which the said cases were couched.
In the above circumstances, this Writ Petition succeeds; impugned order is set at naught; suit to be tried accordingly.
No costs.
Sd/- JUDGE Bsv