in the high court of karnataka at bangalore dated …
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®IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF AUGUST 2012
BEFORE
THE HON’BLE MR. JUSTICE A S BOPANNA
R.F.A. NO.506/2010
Between :
M/s. Spring Borewells Co.Pvt.Ltd.,No.41 (Old No.28), Cubbon RoadBangalore – 560 001Rep. by its DirectorShri K.L. SwamyS/o late K. LakshmansaAged about 62 yearsCubbon Road, Bangalore-1 … Appellant
(By Sri S.K.V. Chalapathy, Sr.Counsel for Sri S Nanjundaswamy, Sri B.R. Narayana Rao & Sri S Sukumar, Advs.)
And :
1. Union of IndiaBy its Principal SecretaryMinistry of DefenceNew Delhi – 110 001.
2. Mr. A.K. Kapila, ColonelAdministrative CommandantFor Station CommanderStation Headquarters CellK & K Sub-AreaCubbon RoadBangalore – 560 001.
3. The Station CommandantStation Headquarters CellK & K Sub-Area
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Cubbon RoadBangalore – 560 001.
4. Ministry of DefenceHead QuartersSouthern CommandPoona by its Commandant. .. Respondents
(By Sri N Devhadas, Sr. Counsel for Sri Y Hariprasad, CGSC for R1 to 4)
This R.F.A. is filed under Section 96 and Order-41Rule–1 of CPC, against the judgment and decree dated19.12.2009, passed in O.S.No.7123/2006 on the file of theIX Addl. City Civil and Sessions Judge, Bangalore,dismissing the suit for permanent and mandatoryinjunction.
This appeal having been reserved for judgment,coming on for pronouncement this day, the Courtpronounced the following :
J U D G M E N T
The appellant herein is the plaintiff in
O.S.No.7123/2006. The said suit was filed by the
plaintiff seeking for the relief of permanent and
mandatory injunction. The Court below considering the
rival contentions has dismissed the suit by its judgment
and decree dated 19.12.2009. The plaintiff claiming to
be aggrieved by the same is before this Court.
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2. The parties would be referred to in the same
rank as assigned to them before the trial Court for the
purpose of convenience and clarity.
3. The case of the plaintiff is that it is a private
limited company and is the absolute owner of the
property bearing No.41 (Old No.28), Cubbon road
Bangalore with old buildings therein. The plaintiff
claims to have purchased the said property under four
sale deeds dated 07.12.1984, 10.12.1984, 11.12.1984
and 10.12.1984 respectively. The property owned by
the plaintiff is described in schedule ‘A’ to the plaint.
The property of the plaintiff is stated to be bound on the
east by the military property belonging to the second
defendant; west by St.Andrew’s Church: North by
Private property and South by Government land and
thereafter Cubbon Road. The plaintiff is stated to be
using the vacant property towards the south of its
property for the purpose of ingress and egress through
the gate which is towards the Cubbon Road. It is
averred that except the said entry, there is no other
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place to enter the plaintiff’s property. The property on
the east belonging to the military is the Station Head
Quarters Cell, K & K Sub Area and there are buildings
on infantry cross road and there is a pakka compound
in between the property belonging to the military and
the plaintiff in bifurcating the same. To the West, there
is a Church and thereafter M/s.L & T property.
Accordingly, the plaintiff claims to be using the entry
from the Cubbon road for more than 22 years from the
date of the purchase without any let of hindrance from
anybody including the defendants. It is stated that the
erstwhile land owners were also using the same entry
from time immemorial. Due to such continuous use
beyond the prescriptive period, the plaintiff claims to
have acquired easementary right over the pathway.
4. The grievance of the plaintiff is that the second
defendant in the process of repairing the old compound,
by rebuilding it has in fact demolished the old
compound wall and a new wall is built on the eastern
side of the suit property but leaving about 6 ft opening
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on the southern end towards the plaintiff’s property.
This was objected to by the plaintiff. Though a gate was
being attempted to be put up in the six ft wide gap, the
same has been prevented by the plaintiff and the gap
was left by the second defendant. In that regard, the
police complaints were also lodged on 17-09-2005 and
26.05.2006. Though the Police intervened and adviced
the Military officials against putting up the gate, they
are trying to put up the gate. The plaintiff further states
that on 06.08.2006, the second and third defendants
tried to put up a barbed wire fence on the southern side
of the suit property and posted number of Military
personnel with A.K.47 guns in order to prevent the
plaintiffs’ entry to the suit property. The plaintiff
however contends that they have successfully prevented
the illegal acts of the defendants. Hence, the plaintiffs
apprehend threat of dispossession. As such, the
plaintiffs claim for perpetual injunction against
interference with plaintiff’s possession, enjoyment and
mandatory injunction to remove the hollow brick wall
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bifurcating Schedule ‘A’ property from Government
land.
5. The defendants on being served with the suit
summons have appeared and filed their written
statement. The defendants contend that in the sale
deeds referred by the plaintiff it is indicated that
Defence/Government land is existing towards the
southern side of the property bearing No.41. It is
therefore contended that Government land does not
form part of property bearing No.41, Cubbon Road.
Reference is made to recital therein about permission
under agreement dated 01.09.1925. Though sale deed
copies are produced, the plan has not been produced.
In any event, the terms of the plaintiff’s sale deed does
not bind the Defence Department and does not confer
any right to the plaintiff’s over the Defence land. It is
denied that the property on the southern side is the
only road for ingress and egress from the suit schedule
property. The rough sketch is not reliable. The
agreement dated 01.09.1925 based on which right is
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being claimed has not been produced. The defendants
have referred to the letter dated 20.03.1982 from the
Deputy Commissioner (Revenue), City Corporation,
informing the defendants that the unauthorised
compound created in between property Nos.95 and 96,
Infantry Cross Road, has been demolished on
11.02.1982 and the land is kept open which can be
used as ‘thoroughfare’ by the owner of property No.41,
Cubbon Road. That establishes the existence of an
access from East of the plaintiff’s property. The
defendants have disputed the indication of the southern
boundary as Cubbon Road. It is averred that all this is
only an effort of the plaintiff to falsely claim the
Government land. Hence, the case of the plaintiff has
been denied in toto regarding the same being the only
entry to the property of the plaintiff. The defendants
have further contended that about 25-30 years ago an
effort was made by the plaintiff’s vendor to gain entry
through Military property by closing the eastern
boundary and that was cleared by the City Corporation.
Reference is also made to the property owned by
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plaintiff’s group which provides direct access to Infantry
Road. The Vendors of the plaintiff having filed a suit in
O.S.No.10445/82 claiming similar right and they having
failed is also submitted. The defendants have thereafter
traversed each of the averments of the plaintiff made
parawise and have sought for dismissal of the suit.
6. The Court below on noticing the rival
contentions has framed as many as four issues for its
consideration, which reads as hereunder:
(1) Whether the plaintiff proves that the southern
boundary of the schedule property is correct and
it is the only access to the schedule property?
(2) Whether the interference alleged is true?
(3) Whether the plaintiff is entitled to the
permanent injunction sought for?
(4) To what decree or order?
7. In order to discharge the burden cast on the
parties, the Director of the plaintiff examined himself as
PW-1 and examined three other witnesses as PW-2 to
PW-4 and relied upon the documents at Exhs.P1 to
P.24. The defendants examined one witness as DW-1
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and marked documents at Ex.D-1 and D-1 (a). The
Court below on analysing the materials and evidence
available on record has dismissed the suit by the
judgment and decree dated 19.12.2009. The plaintiff is
assailing the same in this appeal.
8. Sri. S.K.V. Chalapathy, learned senior counsel
appearing for the plaintiff at the outset submitted that
the plaintiff at this stage does not press regarding
easement of necessity. The suit is therefore for
protecting the easementary right by prescription having
used the same as a matter of right for more than thirty
years. Reference is made to Section 15 of Indian
Easements Act, 1882 (‘the Act’ for short) and Section 13
of Evidence Act. Though the property was being used
as ingress and egress based on the permission granted
under agreement dated 01.09.1925 and the earlier sale
deed dated 22.10.1948 wherein there is reference to the
permissive user of the approach road, the sale deed
dated 23.05.1969 under which Sri B.M.Gill purchased
the property does not refer to the permission.
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Therefore, when that was only the access and when the
earlier permissive user is admitted, the presumption is
that from 23.05.1969, it was being used as a matter of
right. Thereafter the said Sri. B.M.Gill has conveyed the
property by sale to his three daughters by deed dated
30.03.1970. The said property has thereafter been
purchased by the plaintiff in the year 1984. Hence,
when such user from 1969 was as a matter of right, the
same has resulted in prescriptive right in the year 1999.
There would be presumption of user due to human
conduct. The evidence would indicate such road and
gate was there and when the defendants have not
contended that they had permitted even thereafter, it
has to be presumed that the user was without
permission and as a matter of right. It is only in the
year 2006, the defendants attempted to construct the
wall and the plaintiff at that point approached the
Court. In reply to the argument of the learned senior
counsel for the defendants, it is further contended that
the pleading has to be liberally construed and a prayer
for declaration is not necessary as contended. A suit for
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injunction would suffice is the submission. Hence, he
prays for allowing the appeal and decreeing the suit.
9. Sri N Devhadas, learned senior counsel for the
defendants would seek to sustain the judgment passed
by the Court below. With reference to the pleading and
prayer, it is contended that the plaintiff should seek for
a declaration regarding easementary right without
which they are not entitled to maintain the suit. The
relief prayed is only injunction which can only be
granted as a consequential relief if they had succeeded
in seeking declaration. The right claimed from 1969 is
only a presumption of the plaintiff and there is
absolutely no evidence. When a prescriptive right by
way of easementary right is contended, not only the
declaration in that regard should be sought but there
should be sufficient pleading and proof. The plaintiffs
herein have not pleaded regarding the user of the
property as a matter of right nor has the same been
pleaded with regard to the predecessor’s user as a
matter of right. Hence, it is contended that in the
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nature of the case which was put forth before the trial
Court, the Court has considered the same in its correct
perspective and dismissed the suit which does not call
for interference.
10. In the light of the rival contentions, the
following questions arise for consideration in this
appeal:
I) Whether the plaintiffs in the instant case
could have sought for the injunction as
prayed without seeking for the relief of
declaration?
ii) Whether in the instant case, the plaintiffs
have successfully pleaded and proved the
use of the B-schedule property as a matter of
right for the prescriptive period?
iii) Has the Court below appreciated the
material keeping in view the nature of the
case put forth and arrived at an appropriate
conclusion?
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11. As noticed, since the plaintiffs’ case is
restricted to be one for prescriptive easmentary right as
provided under Section 15 of the Easements Act and not
for easement of necessity as pleaded, the provision
contained therein is required to be noticed. Section 15
of the Act reads as hereunder;
“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.
Explanation I.- xxxxxxxxxxxx
Explanation II.-xxxxxxxxxxxx
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Explanation III.- xxxxxxxxxxx
Explanation IV.-xxxxxxxxxxxx
When the property over which a right is claimed
under this section belongs to the [Government], this
section shall be read as if, for the words “twenty years”
the words [“thirty years”] were substituted.”
12. Hence, in the instant case, the plaintiffs are
required to satisfy the Court that they have pleaded and
established that they have peaceably and openly
enjoyed the right of way as an easement without
interruption and therefore they are entitled to claim
right thereto. In the instant case, the period of such
enjoyment should be shown to be for thirty years since
the property in question admittedly belongs to the
Government.
13. Though the plaint indicates that the pleading
is mainly that ‘B’ schedule property was being used as
the road by way of easement of necessity, the plaintiff
has also pleaded that they are using the entry from
South (Cubbon Road) side for more than 22 years from
the date of purchase without any let or hindrance from
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anybody much less the defendants and was being used
by the erstwhile landowners from the time immemorial.
Anyhow the claim in this appeal has been argued as a
claim for prescriptive easementary right under Section
15 of the Act. Hence, the primary contention as to
whether the relief of injunction could be granted without
seeking for declaration supported by pleading and proof
needs to be decided at the outset.
14. The learned senior counsel for the defendants
has cited the decision of a learned Single Judge of this
Court in the case D Ramanatha Gupta –vs-
S. Razaack (AIR 1982 Kar 314) wherein it is held as
follows:
“10. In Siti Kantapal v. Radha Gobinda Sen (AIR
1929 Cal 542). A Division Bench of the Calcutta High
Court has further made the proposition lucid. In the
course of the judgment this is what the High Court
has ruled:
“It has been authoritatively held that title to
easement is not complete merely upon the effluxion of
the period mentioned in the statute viz., 20 years and
that however long the period of actual enjoyment may
be, no absolute or indefeasible right can be acquired
until the right is brought in question in some suit, and
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until it is so brought in question, the right is inchoate
only and in order to establish it when brought in
question, the enjoyment relied on, must be an
enjoyment for 20 years up to within 2 years of the
institution of the suit.”
11. It is, therefore, necessary that in a suit for
injunction based on a prescriptive easement right, the
plaintiff should seek for a declaration from the Court
that he has so acquired the prescriptive right of
easement. In the present suit, however, the plaintiff
has not sought for declaration that he has acquired
prescriptive right of easement with regard to the inflow
of air and light through the windows and ventilators.
Without more, therefore, the suit is liable to be
dismissed. The Courts below have obviously missed
this legal aspect.”
The point that had been raised for consideration in that
case before arriving at the above conclusion is,
“Whether the suit for mere injunction is
maintainable, when the same is based on the
alleged prescriptive right, without a prayer for
declaration that the plaintiff acquired such
prescriptive right?”
15. The learned senior counsel for the plaintiff on
the other hand cited the decision of another
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learned Single Judge of this Court in the case of
Puttegowda alias Ajjegowda –vs- Ramegowda (1996
(5) KLJ 306). It is contended that in the said case the
learned Judge has declared that a suit for bare
injunction without seeking the relief of declaration in
respect of easementary right is maintainable. It is
further pointed out that while arriving at such
conclusion, the case of Ramanatha Gupta (supra)
relied on by the learned senior counsel for the defendant
has been considered and stated to be per incuriam and
sub silentio. Hence, it is contended that in the instant
case the suit for injunction even in the absence of
seeking for the relief of declaration is maintainable.
16. I have carefully perused both the above cited
decisions. The position which is clear is that the
decision in the case of Ramanatha Gupta (supra) is
rendered while considering the case of easementary
right of prescription under Section 15 of the Act, while
the case of Puttegowda alias Ajjegowda (supra) had
arisen on the basis of easement of necessity as provided
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under Section 13 of the Act, though while remanding
the case for fresh consideration, the learned Judge has
indicated that an issue be raised with regard to
prescriptive right also. However, the learned Judge has
failed to notice the marked difference between the right
available under the said provisions namely Section 13
and Section 15 of the Act which has to satisfy different
requirement in those situations. The reading of Section
15 would make it clear that an absolute right would be
available over the property belonging to another if the
requirements contemplated therein are satisfied which
is akin to claiming right by adverse possession. If that
be so, there should be a prayer to grant a declaration in
that regard and in aid of such prayer, there should be
pleading and proof.
17. In fact it would be appropriate to refer to the
decision of the Hon’ble Supreme Court relied on by the
learned senior counsel for the defendants, rendered in
the case of Bachhaj Nahar –vs- Nilima Mandal and
another [(2008) 17 SCC 491] wherein the Hon’ble
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Court keeping in view the provisions of the Easements
Act, Specific Relief Act and the Civil Procedure Code has
summarised the need for appropriate pleadings and
prayer, so that the relevant issues could be framed and
the matter could be considered in that regard based on
the evidence. Para 13 of the said decision reads as
hereunder;
13. The object of issues is to identify from the
pleadings the question or points required to be decided
by the courts so as to enable parties to let in evidence
thereon. When the facts necessary to make out a
particular claim, or to seek a particular relief, are not
found in the plaint, the court cannot focus the
attention of the parties, or its own attention on that
claim or relief, by framing an appropriate issue. As a
result the defendant does not get an opportunity to
place the facts and contentions necessary to repudiate
or challenge such a claim or relief. Therefore, the
court cannot, on finding that the plaintiff has not
made out the case put forth by him, grant some other
relief. The question before a court is not whether there
is some material on the basis of which some relief can
be granted. The question is whether any relief can be
granted, when the defendant had no opportunity to
show that the relief proposed by the court could not be
granted. When there is no prayer for a particular relief
and no pleadings to support such a relief, and when
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the defendant has no opportunity to resist or oppose
such a relief, if the court considers and grants such a
relief, it will lead to miscarriage of justice. Thus it is
said that no amount of evidence, on a plea that is not
put forward in the pleadings, can be looked into to
grant any relief.
(emphasis supplied)
18. If the above aspects are kept in perspective
and considered in the background of the opinion
expressed by the Hon'ble Supreme Court, the view
taken in Ramanath Gupta’s case (supra) is the correct
view. In fact the decision in Puttegowda alias
Ajjegowda is hit by doctrine of sub silentio as the view
therein to hold Ramanath Gupta’s case as per
incuriam is not taken by keeping in view the different set
of requirement under the two different provisions. In
any event such view taken is contrary to the view
expressed by the Hon'ble Supreme Court. Hence, I am
of the considered opinion that when the plaintiff claims
easementary right over another’s property by way of
prescriptive right and seeks protection of such right, it
is a requirement that the relief of declaration should be
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prayed with pleadings to support such prayer and
consequently seek protection by injunction.
19. In that backdrop, the facts in the instant case
would reveal that except for the stray averment in the
plaint, as noticed above, to contend that the passage
was being used by the plaintiff for the last 22 years after
purchase and by their predecessors from time
immemorial, the other averments point to claim of
easements of necessity and that too in the nature by
contending that there is an attempt to close the passage
and therefore to injunct the defendants. In that view,
the issues framed in the instant suit which has been
extracted above would also disclose to that effect and
there is no indication with regard to the matter having
been considered in the direction of deciding the
prescriptive right. Hence, the arguments addressed by
the learned senior counsel for the plaintiff with
reference to agreement of 01.09.1925 about permissive
user and thereafter the sale deed dated 23.05.1969 of
Sri B.M. Gill containing no stipulation and therefore,
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the user was as a matter of right and the decisions
relied upon would not arise for consideration in a First
Appeal when there is no foundation laid in the suit and
the relief of declaration is not sought. In fact the nature
of the discussion made by the trial Court in the instant
case and the observation in paragraph 31 of the
impugned judgment itself will disclose that the
foundation laid was not for a declaration of prescriptive
right and seeking such declaration was not attempted.
Hence, if such right is granted based on the
presumption as sought to be made out, but, in the
absence of there being evidence for actual user of the
land, as a matter of right, it would certainly prejudice
the case of the defendant. When I have noticed the later
decision of the Hon’ble Supreme Court and also the
nature of the pleadings in the instant case based on
which the issues had been raised and parties had gone
to trial, the decision in the case of Rama Sarup Gupta
(dead) by L.Rs.–vs- Bishun Narain Inter College &
Others (AIR 1987 SC 1242) relied on by the learned
senior counsel for the plaintiff would also not be of
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assistance. At best the plaintiff can only avail their
remedy in accordance with law.
20. In that view, the points No. (i) and (ii) raised
above is answered in the negative holding that in the
instant facts, the relief of injunction could not have
been sought without seeking for the relief of declaration
and the pleading and proof is presently insufficient.
The point No. (iii) is therefore answered in the
affirmative as the Court below has not committed any
error on the available materials on record.
Accordingly the appeal being devoid of merit is
dismissed. In the facts and circumstances the parties
shall bear their own costs.
Sd/- JUDGE
Akc/bms