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Mahadevamma and anr. Vs. M. Nanjappa Setty and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 159 of 1969
Judge
Reported inAIR1973Kant254; AIR1973Mys254
ActsEasements Act - Sections 15
AppellantMahadevamma and anr.
RespondentM. Nanjappa Setty and ors.
Appellant AdvocateV. Tarakaram, Adv.
Respondent AdvocateD.S. Lingappa, Adv.
DispositionAppeal dismissed
Excerpt:
.....obstruction put in the suit path within three months and if they fail to do so to have the same removed at their expenses by the plaintiffs, with costs. ' 8. i am clearly of the view that the contention of the appellants have to fail. on a fair reading of the written statement of the appellants, it seems to be clear that the existence of the path-way has been admitted in more than one portion of it, expressly as well as by implication. 2 one of the appellants herself has stated in her evidence like this :the road branching off from chikmagalur tarikere road goes towards villages bhairangiri and subanatotu along-side my lands. if a plan had been prepared after local inspection held in the presence of the parties, and evidence had been led with reference to such a plan, a proper conclusion..........(defendants 1 and 2) is one of denial of such rights. it is also specifically averred that the road or path-way in question was not being used by anyone, including the respondents, and that there was a separate 'mamool' path-way, which also passed on s. no. 103, and that was the one which was being used by them. the other allegations relate to the influence exercised by the wife of one of the plaintiffs, as a member of the taluk board, and the acts of the local authorities concerned in trying to repair the path-way thus interfering with the possession and enjoyment of the land by them,4. the trial court decreed the suit in the following terms:'after contest and by judgment. it is ordered and decreed declaring that the plaintiffs have a right of way. i. e., a path about twenty feet.....
Judgment:

B. Venkataswami, J.

1. This Appeal, by defendants 1 and 2 in O. S. No. 431 of 1964 on the file of the Munsiff at Chickmagalur. is directed against an affirming judgment by the Civil Judge Chickmagalur. made in R. A. No. 15/1968.

The suit by respondents 1 to 10 is for a declaration of their right of way over a mamool path-way of the width of 20' leading from Dasankatte to Bhairinagiri road, commencing at S. No. 103 and passing through S. No. 103/2 belonging to the appellants (defendants 1 and 2). and S. Nos. 110. 108. 107 and 112, belonging to respondents 1 to 10. of Arasinkuppe village of Chickmagalur Taluk, and for permanent and mandatory injunctions. Their case has been, to say the least, imprecise, and has been put on almost on all the grounds available to them in law, i. e. public right of way, customary easement, easementary right of way under Section 15 of the Basements Act and easement of necessity.

3. The case on behalf of the appellants (defendants 1 and 2) is one of denial of such rights. It is also specifically averred that the road or path-way In question was not being used by anyone, including the respondents, and that there was a separate 'mamool' path-way, which also passed on S. No. 103, and that was the one which was being used by them. The other allegations relate to the influence exercised by the wife of one of the plaintiffs, as a member of the Taluk Board, and the acts of the local authorities concerned in trying to repair the path-way thus interfering with the possession and enjoyment of the land by them,

4. The trial Court decreed the suit in the following terms:

'After contest and by judgment. It is ordered and decreed declaring that the plaintiffs have a right of way. i. e., a path about twenty feet wide leading from Dasanakatte Bhairangiri Road and commencing in S. No. 103 and passing through S. No. 103/2 of the defendants and S. Nos. 110. 108, 107 and going to S. No. 112 of the plaintiffs. Arasinguppe village. Kasaba Hobli, Chickmagalur Taluk, and for a permanent injunction restraining the defendants from obstructing the plaintiffs by using this road either themselves or through their servants, coolies or others and interfering with or obstructing the said way in any manner or use the same as above; and for a mandatory injunction directing the defendants 1 and 2 to remove the tree. plants, barbed wire, thorns or other obstruction put in the suit path within three months and if they fail to do so to have the same removed at their expenses by the plaintiffs, with costs.'

5. In appeal, which also was by the present appellants, the learned Civil Judge, upheld the findings of the Court below and affirmed the said judgment and decree. Hence, this appeal.

6. On behalf of the appellants the following contentions were urged by Sri V. Tarakaram. the learned counsel :

1. That the learned Civil Judge was in error in thinking that there was an admission in the written statement of the appellants, in effect admitting the existence of suit path-way on S. No. 103, belonging to them:

2. That the path-way in question has not been delimited by a sketch or measurements thus leaving the matter of identification of the path-way in doubt; and

3. that the most essential ingredient necessary to establish a right of way as an easement, namely user 'as of right' over the statutory period, has not been kept in view by the learned Civil Judge and the same has not been specifically found to have been established.

7. On behalf of the contesting respondents. Sri D. S. Langappa, the learned Advocate, submitted by way of reply on the first point that the admission was in fact true and the same could be gathered from several portions of the pleadings as also from the evidence of one of the defendants, examined as D. W. 2. On the second, his argument is that the decree in question has not left the matter in doubt. Moreover, it is clear from the evidence on record that the path-way in question extends beyond S. No. 103, and therefore, all that remains to be done is to link up the said road with Tarikere Chikmagalur road over the lands of the appellants. On the last question, it is submitted that user without any one's permission has been established by abundant evidence adduced on behalf of the plaintiffs and the same has remained unchallenged. He also relied on the decision in Phoolchand Narayandas V. Murarilal Nathulal, (AIR 1951 Madh Bha 89) in support of a view that 'long user of the right of way raises a presumption in favour of the plaintiff that the enjoyment (right of way) has been as of right.'

8. I am clearly of the view that the contention of the appellants have to fail.

9. On the first two contentions. I am in agreement with the submissions made on behalf of the respondents. On a fair reading of the written statement of the appellants, it seems to be clear that the existence of the path-way has been admitted in more than one portion of it, expressly as well as by implication. Moreover. D.W. 2 one of the appellants herself has stated in her evidence like this :

'the road branching off from Chikmagalur Tarikere road goes towards villages Bhairangiri and Subanatotu along-Side my lands. No road branches off from this road runs on my land.....'

10. It is no doubt true that it is not clear from the above, that there was any admission that the road was running on her land. But in the further evidence of this witness there is a statement to this effect :

'.....The road running to Bhirangiri passes through my land- I have lands on either side of the road and I have built a coolie line' on the eastern sides of the road going to Bhirangiri.....'

11. I am not. therefore, persuaded to accede to the argument that the judgment in appeal had been vitiated on account of any error in this regard.

12. The second contention is equally untenable. Once there is a road beyond the land of the appellants and the same merely requires to be connected to Chikmagalur Tarikere Road over the land of the appellants, there cannot be any difficulty in fixing the width and alignment of the portion of It passing over the land of the appellants. In this context, it may be noticed that the learned Munsiff who made a local inspection of the road in question has observed that the width of the road was about 18 ft and that such road did not appear to be a new one. On this question reliance was placed on certain observations in R. S. A. No. 551 of 1969. which runs thus : 'Before concluding the judgment. I must observe one fact about the conduct of a suit to establish a right of way over the land of another. The plaintiff has annexed to his plaint a rough sketch of the alleged way. He did not take out a commission to hold a local inspection and prepare a plan of the suit locality, the alleged way claimed by the plaintiff and also the way alleged to exist according to the village plan by the defendants. If a plan had been prepared after local inspection held in the presence of the parties, and evidence had been led with reference to such a plan, a proper conclusion could have been arrived at Without such a plan, I fail to see as to how the Court could have granted a decree on the basis of a rough sketch. This is not the way as to how a suit of this nature should be proceeded with.'

13. It seems to me that these observations have reference to the facts of that case wherein reliance was placed on a rough sketch to establish a right of way. without measurements and sketch taken and prepared by a Commissioner. But in the instant case, as pointed out earlier, no difficulty arises. The width of the path-way is known and the same has to be merely connected with the road beyond by removal of the fence, which according to the Munsiff. is a new one. The Court which inspected the land and passed the decree has felt no difficulty about it. Hence, the observations in question are not of much assistance to the appellants. Hence, this contention also has to fail.

14. The last contention relates to the absence of user 'as of right'. The contention on behalf of the appellants is that the learned Civil Judge has not recorded any finding in this regard and there is also no evidence in support of such user adduced on behalf of the respondents. I cannot also accede to this submission.

15. It is no doubt true that in our country to establish a right of way over another's land, such right must be shown to have been exercised 'as of right' over the statutory period and in the absence of evidence as to such user, as a matter of law. no such right could be claimed. That such is the true legal position can be gathered from the decisions cited on behalf of the appellants. They are Harisadhan De v. Radhika Prosad Pandit (AIR 1938 Cal 292) and Chidambara Thevar v. Vedayya Thevar. : AIR1967Mad164 .

16. The learned Counsel for the appellants is only partly right in his contention that the learned Civil Judge has not adverted to this question. It is seen from the judgment, the learned Appellate Judge had kept in view the ingredients necessary for the establishment of a right of way as an easement and in fact has referred to the element of user 'as of right'. But in the course of the discussion and recording a finding thereon, there has been no reference to the evidence in regard to it. nor has there been any specific conclusion. On the other hand, the conclusion of the learned Civil Judge as to the right of way is, it seems to me. of an omnibus nature. But on this account. I do not consider it necessary to remit the case to the first appellate Court for a fresh consideration of the appeal. I. therefore, propose to refer briefly to the evidence, bearing on this aspect of the case.

17. At the outset, it may be mentioned that the user in question has been for a period of over 20 years and anywhere upto 50 years, has been spoken to by almost all the witnesses for the respondents and the same has not been challenged seriously in the cross-examination on behalf of the appellants. Before me also no serious argument worth the name has been addressed on that aspect of the case. Moreover, on going through the evidence, I am satisfied that the conclusion in this regard does, not call for any interference. In regard to the case relating to user 'as of right', it is to be seen from the evidence that several witnesses have spoken to the fact of such user without permission of any one. It is also relevant to remember that the road or path-way was in existence for several decades past would not admit of any doubt. It seems to me. therefore, to be implicit, in the use of such road, that it was being so used 'as of right'. Lastly, long and consistent user would also give rise to a presumption that such user had been as of right. I am. therefore, of the view that this contention should also fail.

18. In the result, this appeal fails and is dismissed, but in the circumstances no costs.


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