IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS SECOND APPEAL NO.67/2015 BETWEEN:
1. SUDHAKAR BHAT AGED ABOUT 63 YEARS 2. SURENDRA BHAT AGED ABOUT 58 YEARS 3. PRAPHULLA PAI AGED ABOUT 53 YEARS 4. VIJAYENDRA BHAT AGED ABOUT 56 YEARS 5. RAMESH BHAT AGED ABOUT 49 YEARS 6. SUDHA @ DEEPA BHAT AGED ABOUT 46 YEARS 7. RAMANI BHASKAR PRABHU AGED ABOUT 49 YEARS 8. UMESH BHAT AGED ABOUT 42 YEARS 9. LATHA @ NAGARATHNA NAGARAJA SHENOY AGED ABOUT 47 YEARS ALL ARE CHILDREN OF LATE PANDURANGA BHAT AND PERMANENT RESIDENTS OF MOODAHADU VILLAGE P.O.SASTAN UDUPI TALUK AND DISTRICT A2 TO A9 HEREIN ARE REP. BY THEIR POWER OF ATTORNEY APPELLANT NO.1 SUDHAKAR BHAT … APPELLANTS (BY SRI VYASA RAO K.S., ADVOCATE) AND:
1. BHASKARA ACHARI AGED ABOUT 56 YEARS 2. RAMACHANDRA ACHARI AGED ABOUT 44 YEARS 3. JALAJA ACHARTHI AGED ABOUT 54 YEARS 4. JAYA ACHARTHI AGED ABOUT 46 YEARS ALL ARE CHILDREN OF LATE SHEENA ACHARYA R/AT YADABETTU OF MOODAHADU VILLAGE P.O.SASTAN UDUPI TALUK & DISTRICT …RESPONDENTS (NOTICE TO R1 TO R4 ARE SERVED AND UNREPRESENTED) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 27.08.2014 PASSED BY THE SENIOR CIVIL JUDGE, KUNDAPURA IN R.A.NO.17/2005 AND TO SET ASIDE THE JUDGMENT AND DECREE DATED 07.01.2005 PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.DN.), KUNDAPURA IN O.S.NO.427/1997.
THIS MSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the legal representatives of the defendant arises out of judgment and decree in RA No.17/2005 dated 27.08.2014 passed by the Senior Civil Judge, Kundapura.
2. By the impugned judgment and decree, the First Appellate Court set aside the judgment and decree dated 07.01.2005 in OS No.427/1997 passed by the Principal Civil Judge (Junior Division), Kundapura.
3. By judgment and decree dated 07.01.2005, the trial Court had decreed the suit of the plaintiff declaring that plaintiff has acquired easementary right to make use of suit pathway running over property bearing Survey No.63/7 belonging to defendant and granted permanent injunction.
4. Suit was filed by one Sheena Acharya S/o. Subraya Acharya. When the matter was pending before the First Appellate Court, Sheena Acharya died and the present respondents are his legal representatives. Defendant in the suit was Panduranga Bhat S/o. Laxmana Bhat. He had preferred RA No.17/2005. After disposal of RA No.17/2005 and before filing of this appeal, he died. Therefore, present appellants preferred this appeal as his legal representatives.
5. Plaintiff was owner of land bearing Survey No.4/18 measuring 5 cents and 4/28 measuring 8 cents situated within the limits of Moodahadu Village, Udupi Taluk. Defendant was the owner of land bearing Survey No.63/7 which situates on the southern side of the land bearing Survey No.4/18 and 4/28.
6. Plaintiff contended that he is in lawful possession and enjoyment of plaint ‘A’ schedule properties and he has acquired prescriptive easement of way to reach national highway No.17 passing through defendant’s land bearing Survey No.63/7 and Survey No.61/7 which is situated in western side of defendants’ land.
7. ‘A’ schedule land was granted to the plaintiff by the Land Tribunal, Udupi on 19.10.1981 under Karnataka Land Reforms Act, 1961. Ex.P1 Form No.10 was issued to him in that regard. He claims that he was in possession of the property as tenant since 50 years and he was using the pathway of about 3 to 5 feet on southern and western portion of Survey No.63/7 and he was using that to reach the main road. It was shown in the sketch-Ex.P4 by letters ‘C’, ‘D’ and ‘E’.
8. Plaintiff claimed that he has acquired that as easement of necessity as well as mamul right. He claimed that defendant objected him in use and enjoyment of the same. Hence, he sought declaration of right of easement of way by prescription, necessity and mamul user as well as for permanent injunction.
9. Defendant contested the suit denying existence of pathway or right of any kind of easement. He further denied the use of said pathway at any time and contended that pathway mentioned by plaintiff in defendant’s land is for his exclusive use. He claimed that it was his private pathway. Defendant further contended that the plaintiff has another way to reach the main road and therefore, there is no question of easement of necessity and easement of mamul user or prescription.
10. On the basis of such pleadings, the trial Court framed the following issues:
1) Whether plaintiff proves that suit pathway is public pathway and he is using it since 50 years openly peacefully and have acquired a right over it by way of prescription?
2) Whether defendant proves that suit pathway is a private pathway and meant for his personal use?
3) Whether defendant proves that plaintiff is having alternate way as contended in para 5 of plaint?
4) Whether plaintiff proves that defendant has interfered with his peaceful possession and enjoyment of suit pathway as alleged in para (d) of the plaint?
5) Whether plaintiff is entitled for the relief of declaration as prayed for?
6) Whether plaintiff is entitled for the relief of permanent injunction as prayed for?
7) What order or decree?
11. Parties adduced evidence. The trial Court on the application of the plaintiff appointed commissioner. He has submitted his report. The commissioner was not examined before the trial Court. However, since nobody summoned the commissioner and cross examined him as per Order XXVI Rule 10 CPC his report forms part of the record.
12. The trial Court after hearing the parties, decreed the suit on the following grounds:
a) Existence of pathway in defendant’s property is admitted;
b) Evidence of plaintiffs’ witnesses show that the plaintiff and other adjacent land owners were using the suit pathway;
c) Defendant himself admits that plaintiff had erected gate to his property to use the suit pathway and that shows existence of the gate of the plaintiff to access the suit pathway;
d) Sketch-Ex.P4 produced by the plaintiff is not disputed;
e) DW1 admitted that plaintiff is residing in plaint ‘A’ schedule properties since 1951: & f) Defendant failed to prove that plaintiff has an alternate way to access the main road.
13. Defendant challenged the said judgment and decree before the First Appellate Court. The First Appellate Court by impugned judgment and decree held that pleadings of the plaintiff to claim easement by prescription or necessity are not in accordance with Sections 13 and 15 of the Indian Easements Act, 1882 (‘the Act’ for short). However, having held so, even in the absence of any application by the plaintiff to amend the pleadings, the First Appellate Court reversed the judgment of the trial Court, suo motu permitted the plaintiff to amend his pleadings suitably and remanded the matter to the trial Court with directions to permit the plaintiff to amend the pleadings and to receive additional written statement of defendants and for fresh trial and disposal.
14. Sri Vyasa Roa, learned Counsel for the appellants seeks to assail the impugned judgment and decree on the following grounds:
1) As per the First Appellate Court itself, pleadings were not compliant of Sections 13 and 15 of the Act and under such circumstances, First Appellate Court should have dismissed the suit;
2) First Appellate Court after long delay, suo motu permitted the plaintiff to amend the pleadings which prejudiced the right of the defendant;
3) The order of remand by the First Appellate Court was not in accordance with orders XLI Rule 23-A of CPC or Order VI Rule 17 of CPC;
4) When the First Appellate Court itself accepted and held that as per Commissioner’s report plaintiff had alternate pathway, it was not justified in remanding the matter for fresh trial; & 5) To claim prescriptive easement, plaintiff did not plead that he was using the land as of right peacefully and openly without any interruption for more than 20 years preceding the date of filing of the suit.
15. In support of his contention, he seeks reliance on the following judgments:
(i) Bachhaj Nahar v. Nilima Mandal [AIR 2009 SC 1103] (ii) Justiniano Antao and Ors. v. Smt.Bernadette B.Pereira [JT 2004 (10) SC 228] (iii) Narayana v. Venkatesha [AIR 1969 Mysore 6].
(iv) Sk.Ibrahim v. Sk.Mehmood [AIR 2003 Bombay 357] 16. Respondents though served did not appear and contest the appeal. Having regard to the submission of learned Counsel for the appellants, material on record, the question that arises for consideration of this Court is “Having held that pleadings of the plaintiff were not compliant of Sections 13 and 15 of the Act and there was alternate pathway to the plaintiff to enjoy his properties, whether the First Appellate Court was right in remanding the matter to the trial Court for amendment of the plaint and for fresh trial?”
17. As pointed out, there was no dispute that the plaintiff is owner of plaint schedule ‘A’ properties and defendant is owner of Survey No.63/7. Location of those properties as shown in Ex.P4 was also not disputed. Defendant did not even dispute that in his land Survey No.63/7, there is pathway shown by letters E, D and C which leads to national highway-17 through Survey No.61/7 a land adjoining Survey No.63/7. According to defendant that pathway was for his exclusive use and plaintiff had no right over the same. Whereas plaintiff claimed easement by prescription, necessity as well as mamul right over that pathway.
18. Right of easement is creation of the Indian Easements Act, 1882. Section 13 of the said Act deals with easement of necessity and quasi easements. Section 15 of the Act deals with acquisition of easement by prescription.
19. Perusal of Section 13 makes it clear that easement of necessity arises only in cases of transfer, bequest and division of joint property by several persons. It was not the case of the plaintiff that he acquired plaint schedule ‘A’ properties by way of transfer, bequest from the defendants or by way of division of the properties between him and the defendant. Therefore, claim of the plaintiff for easement of necessity was totally a misconception.
20. The other claim was easement of mamul user. Easement of mamul user was explained by this Court in Narayana’s case referred to supra as follows:
“7. The employment of the phrase ‘Mamul right’ in the plaint does not alter the position to any extent since that expression means no more than that for a long period of time the plaintiff was receiving water into his land along the artificial watercourse. But in a suit to enforce the right to receive such water, the plaintiff can succeed only if it is proved that the right flows from a contract or from a right acquired by prescription.”
(emphasis supplied) 21. Thus by the ratio laid down by this Court in the above referred judgment, it becomes clear that easement of mamul user is again the right accrued by user of the property for a long period. Therefore that is acquisition by prescription under Section 15 of the Act. Whereas in this case, the plaintiff had sought relief of prescriptive easement. Therefore, this relief of declaration of mamul user was only duplication of claim of easement by prescription of time.
22. From the above analysis, it becomes clear that easement of necessity and prescriptive easement are totally distinct from each other. The only easement plaintiff could claim was easement by prescription.
23. In the prayer in the plaint itself, plaintiff contended that the suit pathway is public pathway. Admittedly, it is situated in the land of the defendant. None of the documents produced by the plaintiff show that the said property was public way. Even otherwise the very claim of the plaintiff for prescriptive easement, having regard to the language of Section 15 of the Act, was inconsistent with plea of the suit pathway being public pathway.
24. Section 15 of the Act which deals with prescriptive easement states that as right relating to access and use of light or air and for any building having been peaceably enjoyed by any person claiming title thereto as of right without interruption for 20 years.
25. What shall be pleadings of the plaintiff in such case is enunciated in para 14 of Bachhaj Nahar’s case referred to supra, which reads as follows:
“14. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right to drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have to plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence an not an easement.
. ”
(emphasis supplied) 26. As already pointed out that the plaintiff himself was not certain which easement he was claiming of all the easements namely easement by necessity or easement by prescription or easement by mamul user or easement by grant. The entire pleading of the plaintiff regarding use of the suit pathway was in para 3(c) of the plaint. But he did not state clearly since when he started to use that pathway as of right to reach national highway No.17.
27. Therefore, First Appellate Court held that the pleadings of the plaintiff regarding easement of prescription was not in accordance with Section 15 of the Act. The First Appellate Court also referred to the decision in Bachhaj Nahar’s case in its judgment. However having held that the pleadings are not compliant with law/Section 15 of the Act whether the First Appellate Court could suo motu direct the plaintiff to amend the pleadings is the question.
28. In Bachhaj Nahar’s case referred to supra it was held that in the absence of required pleadings it would be hazardous to hold that relief can be moulded and to grant the relief which was not sought for.
29. In Sk.Ibrahim’s case referred to supra, the Bombay High Court in similar case held the Appellate Court should not have remanded the matter for fresh trial by giving suo motu directions to the parties to amend the pleadings which the parties did not seek. The relevant observations in the said judgment are as follows:
“When the parties fully aware of their respective cases, lead all the necessary evidence not only in support of their case but in refutation of the claim of the other side, non-framing of the issues cannot be held to be a ground for remanding the case unless it is fatal to the case or resulted in mistrial which vitiates the proceedings. Because if the evidence which has been led before the trial Court is sufficient to reach a right conclusion and neither party has raised any objection to the framing of the issues before the trial Court, there was no reason why the first appellate Court should have remanded the matter for fresh trial by giving suo motu directions to the parties to amend the pleadings which parties themselves have not sought. This is not permissible as a public policy for the reason that it is for the parties to put up their case in a proper manner and once they undergo the rigour of the trial the findings should not be interfered with remanding the case. In the present case, the parties have been litigating since the year 1989, the question as to whether the plaintiff is entitled to right of way by virtue of prescriptive right or customary right of, is a matter to be decided on merits as whatever evidence the parties have in the matter, has been led, but it is not the grievance of either plaintiff or the defendants that they were not given fair opportunity to lead the evidence or conduct the trial. The appellate Court has also not examined the case on merits which could have enabled it to assess the judgment and decree of the Trial Court and, therefore, reverting the parties back to stage one could only result in prolonging the litigation and unnecessary waste of judicial time as well as causing inconvenience to the litigants. Therefore the order remanding matter for fresh trial by giving suo motu directions to the parties to amend pleading which parties themselves have not sought, not proper.”
(emphasis supplied) 30. The First Appellate Court having accepted that the pleadings are not in accordance with law and on accepting that as per Commissioner’s report, there is alternate pathway, was not justified in remanding the matter for amendment of the pleadings and for fresh trial. Plaintiff has not appeared before this Court nor filed any cross objection challenging the findings of the First Appellate Court that pleadings are not in accordance with law to claim prescriptive easement and there was alternate pathway. Therefore, those findings against respondents-plaintiff attained finality.
31. Under these circumstances, only course left open to this Court now is to dismiss the suit. Therefore, the appeal is allowed. The impugned judgment and decree of the Courts below are hereby set aside. The suit in OS No.427/1997 on the file of Principal Civil Judge (Junior Division), Kundapura is hereby dismissed.
Sd/- JUDGE KSR