IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1980/2006 BETWEEN:
1. SRI VISHWANATH AGED ABOUT 54 YEARS S/O. MUNISWAMY 2. SRI SEETHAPPA AGED ABOUT 64 YEARS S/O. MUNISWAMY BOTH ARE RESIDING AT PITCHAHALLI VILLAGE OORGAUM POST K.G.F KOLAR DISTRICT-563 120 …APPELLANTS (BY SRI T.SUNIL FOR SRI G.PAPI REDDY, ADVOCATES) AND:
SRI BALAKRISHNAPPA AGED ABOUT 71 YEARS S/O. LATE NARAYANAPPA R/AT PITCHAHALLI VILLAGE OORGAUM POST K.G.F., KOLAR DISTRICT- 563 120 …RESPONDENT (BY SRI N.MURALI, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.03.2006 PASSED BY THE CIVIL JUDGE (SENIOR DIVISION), KOLAR GOLD FIELDS IN R.A.NO.89/2002 AND TO CONFIRM THE JUDGMENT AND DECREE DATED 11.03.2002 PASSED BY THE II ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION), KOLAR GOLD FIELDS IN O.S.NO.296/2000.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This regular second appeal of defendants arises out of judgment and decree dated 29.03.2006 passed by the Civil Judge (Senior Division), Kolar Gold Fields in R.A.No.89/2002 whereby the judgment and decree dated 11.03.2002 passed by the II Additional Civil Judge (Junior Division), Kolar Gold Fields in O.S.No.296/2000 was set aside.
2. Respondent filed O.S.No.296/2000 against the appellants, before the II Additional Civil Judge (Junior Division), Kolar Gold Fields for mandatory injunction and permanent injunction.
3. Subject matter of the suit was land bearing Survey No.261/2 measuring 1 acre 31 guntas of Pitchahalli, Oorgaumpet, Bangarpet Taluk.
4. For the purpose of convenience, parties will be referred to henceforth with their ranks before the trial Court.
5. Plaintiff contended that his earlier suit in O.S.No.398/1995 before the Principal Civil Judge (Junior Division) and Additional J.M.F.C., Kolar Gold Fields for permanent injunction restraining the defendants from closing the cart road situated in their property was dismissed on the ground that the plaintiff has not sought mandatory injunction to remove the eucalyptus trees grown by defendants on that. He further alleged that to cause wrongful loss to him, defendants are attempting to close the cart road. It was alleged that defendants though removed the standing eucalyptus trees in August 2000 were again obstructing him in using that cart road. Therefore, he sought for mandatory injunction for removal of the said eucalyptus trees and for permanent injunction from obstructing him from using the said cart road.
6. Defendants did not file their written statement. Plaintiff filed application under Order VIII Rule 10 of the Code of Civil Procedure, 1908 (‘the CPC’ for short) to decree the suit. The trial Court on hearing the said application dismissed the suit vide order dated 11.03.2002 on the following grounds:
(i) When the suit for permanent injunction was dismissed, he should have filed an appeal and in that appeal sought amendment of the plaint to claim mandatory injunction and remand of the matter;
(ii) Suit is hit by Section 11 of CPC;
(iii) Suit is hit by Section 103 of the Karnataka Land Revenue Act, 1964; & (iv) Plaintiff ought to have sought declaration of his right of easement. Therefore, the suit is not maintainable having regard to the ratio laid down in Puttegowda @ Ajjegowda vs Ramegowda ILR 1996 KAR 465.
7. Aggrieved plaintiff filed R.A.No.89/2002 before the Civil Judge (Senior Division), Kolar Gold Fields. The First Appellate Court by impugned judgment and decree reversed the judgment of the trial Court, allowed the appeal and decreed the suit of the plaintiff on the following grounds:
(i) In O.S.No.398/1995 filed by the plaintiff, the Court held that existence of cart road on the defendants’ land and use of the same by the plaintiff was proved;
(ii) Since none of the parties preferred the appeal against the said judgment, those findings in O.S.No.398/1995 attained finality;
(iii) Having regard to the said findings, defendants have no right to obstruct the usage of cart road by the plaintiff. Therefore, the plaintiff is entitled for decree of mandatory injunction and permanent injunction.
8. This Court admitted the appeal for consideration of the following substantial question of law:
“Whether in the facts and circumstances of the case the appellate court was justified in reversing the judgment and decree passed by the trial Court and decreeing the suit”?
9. Sri T.Sunil, learned Counsel for the appellants submits that even though there was no written statement, when the plaintiff claimed right over the said property of the defendants, the First Appellate Court was duty bound to examine whether the said right was established. He submits that in the absence of any pleading as required under Section 13 of the Indian Easement Act, 1882 and though no declaration was granted in O.S.No.398/1995 regarding right of easement of plaintiff, the First Appellate Court was in error in holding that plaintiff has easementary right and granting the decree.
10. In support of his contentions, he relies upon the judgment of this Court in Puttegowda @ Ajjegowda vs Ramegowda ILR 1996 KAR 465.
11. Per contra, Sri N.Murali, learned Counsel for the respondent submits that the defendants did not challenge the findings of the Court in O.S.No.398/1995 to the effect that their existed cart road in the land of the defendants and the plaintiff was using that. He further submits that the judgment and decree in O.S.No.398/1995 has attained finality. Therefore the First Appellate Court was right in decreeing the suit of the plaintiff.
12. In support of his contentions, he relies upon the following judgments:
1. Om Prakash Gupta v. Union of India and another AIR 2000 SC 3585 2. Smt.Aisha Bi and Another vs M.Shamsher Khan ILR 2001 KAR 546 13. Unlike in other suits, suit claiming easementary right is a distinct class of litigation. In such case, the plaintiff is required to plead and prove the particulars of his alleged right of easement. Plaintiff should specify which category of easement he is claiming, since when he was enjoying the dominant heritage etc. The alleged right must be continuously and openly enjoyed. Pleadings of the plaintiff are very bald. Plaintiff has not even stated whether he is claiming easement by necessity, prescription or custom or nature of such easement.
14. Admittedly, his suit in O.S.No.398/1995 for bare injunction was dismissed. In the said case, plaintiff did not utter anything about right of easement. Issues were only to the effect whether there existed cart road in the property of the defendants and whether the plaintiff is making use of that and whether defendants were interfering with the same.
15. Mere existence of cart road or use of the same by a party does not create a right, much less the right of easement unless it falls under any of the categories covered under the Indian Easement Act, 1882. Though, the trial Court in its judgment relied upon the judgment of this Court in Puttegowda’s case referred to supra, the First Appellate Court did not even refer to the said judgment and ratio of the said judgment.
16. Section 107 of CPC requires the First Appellate Court to meet all the issues or points considered by the trial Court and if it disagrees with those points to record its findings of disagreement with reasons supporting such findings. Though the trial Court dismissed the suit on the ground of maintainability for not seeking declaration, the First Appellate Court did not meet the findings of the trial Court on that point and on other findings regarding suit being hit by principle of res-judicata in view of judgment in O.S.No.398/1995 and for not availing the remedy under Section 103 of the Karnataka Land Revenue Act.
17. As already discussed, the First Appellate Court did not meet the findings regarding maintainability of the suit without seeking declaration of right of easement. In Puttegowda’s case referred to supra, this Court in paras 15 and 16 of the judgment held that without pleading necessary ingredients of easement of necessity, as well as without stating particulars of right of easement by prescription, the First Appellate Court ought not to have decreed the suit.
18. Here plaintiff was seeking right over the property of the defendants by way of easement which was disputed by the defendants. Now it is settled proposition of law that without seeking declaration of right of easement, suit for bare injunction claiming easementary rights over defendants’ property is not maintainable.
19. Further, plaintiff did not explain why he did not seek relief of declaration and mandatory injunction in O.S.No.398/1995. In that suit, Court clearly observed that even before the suit was filed, there were grown up trees in the alleged cart road therefore, the suit for temporary injunction was not maintainable. Therefore, suit was also barred by Order II Rule 2 of CPC also.
20. It is also to be noted that O.S.No.398/1995 was dismissed as long back as 16.02.2000. By that time alleged cart road was already blocked. This suit was dismissed on 11.03.2002. There is no material to show that how the plaintiff was accessing the property at least 11 years till the First Appellate Court decreed the suit. There is nothing to show that First Appellate Court’s decree was executed and trees were cleared. Easement of necessity arises, only if there is no other approach road. Under these facts and circumstances, judgments relied upon by the learned Counsel for the respondent are not applicable.
21. The Hon’ble Supreme Court in Gurnam Singh v. Lehna Singh [2019 SCC Online SC 374] [Civil Appeal No.6567/2014 DD 13.03.2019] relying upon the earlier judgment of the Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722] held that in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court are contrary to the mandatory provisions of the applicable law, law pronounced by the Apex Court or based on inadmissible evidence or no evidence.
22. In the case on hand, the findings of the First Appellate Court were without required pleadings and evidence. The First Appellate Court did not consider the mandatory provisions of Easement Act or the law pronounced by this Court in Puttegowda’s case. Under the facts and circumstances, the First Appellate Court was not right in reversing the judgment and decree of the trial Court. The substantial question of law is answered accordingly.
23. At this stage, learned Counsel for the respondent seeks for remand of the matter. This Court does not find that any purpose will be served in remanding the matter which is 19 years old. The appeal is allowed.
The impugned judgment and decree dated 29.03.2006 passed by the Civil Judge (Senior Division), Kolar Gold Fields in R.A.No.89/2002 is hereby set aside. The judgment and decree dated 11.03.2002 passed by the II Additional Civil Judge (Junior Division), Kolar Gold Fields is hereby confirmed.
No order as to costs.
Sd/- JUDGE KSR