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Judgment
A.V. Chandrashekara, J.—Appellants herein are the legal representatives of sole deceased defendant Nijagunappa of an original suit bearing O.S. 217/1993 which was pending on the file of Court of the Civil Judge (Jr.Dn.) and Addl. JMFC, Ramanagara. Respondents are the legal representatives of deceased plaintiff of the said suit.
Parties will be referred to as per their ranking before the Trial Court.
Suit came to be filed by the plaintiff for relief of permanent injunction restraining the defendant from obstructing the plaintiffs use of the passage in suit "A" schedule property measuring East to West 47 feet and North to South 3 3/4 feet and from interfering with his possession over the same. According to the deceased plaintiff, schedule "A" property is the only access to his house and therefore, it is an absolute necessity.
Defendant chose to file written statement denying all the material averments calling upon the plaintiff to prove the contents of the plaint. According to the deceased defendant, plaintiff had alternative access to the house from the conservancy on the western side of the house of the plaintiff to reach his property. Therefore the suit is not maintainable and requested the Court to dismiss the suit.
On the basis of the above pleadings, following issues came to be framed by the Trial Court:
"1. Whether the plaintiff proves that he is having right of passage in suit "A" schedule property?
Does the plaintiff proves the interference of the defendant?
What order or decree?"
Plaintiff himself is examined as PW-1, two other witnesses have been examined as PWs-2 and 3. On behalf of the plaintiff, 4 documents have been marked as Exs. P-1 to 4. On behalf of the defendant, he himself is examined as D.W.-1 and has produced and has got marked 2 documents as Exs. D-1 and 2. During the pendency of the suit, an advocate Sri. K.B. Vijay Kumar had been appointed as Commissioner to conduct local inspection. He has submitted the report, which is not objected by either of the parties, in the Trial Court.
Ultimately, the learned Judge of the Trial Court has chosen to answer issues 1 and 2 in the affirmative and consequently decreed the suit, as against which an appeal under Section 96 of CPC was filed before the Court of the Principal Civil Judge (Sr. Dn.) at Ramanagara in R.A. 65/2002. After hearing the arguments of the parties, the learned Judge of the First Appellate Court has chosen to dismiss the appeal by framing 4 points for its consideration as found in paragraph 9 page 6 of its judgment. These concurrent findings have been called in question before this Court on various grounds as set out in the appeal memo.
The present appeal has been admitted on 31.5.2008 by framing following substantial questions of law for consideration:
"1) Whether the concurrent findings of fact of both the courts below can be sustained in law, in view of the plaintiff being not in possession of the suit schedule property?
2) Whether the courts below were justified in granting decree of permanent injunction against the true owner of "A" schedule property?"
Heard the learned counsel for the parties and perused the records.
Deceased Rudraiah and Nijagunappa were sons of Revanna. Suit "A" schedule property is part and parcel of suit "B" schedule property. Suit "B" schedule property consists of two houses of deceased plaintiff purchased on 12.11.1984 from H.R. Ananda and they have been inherited by the legal representatives of the deceased plaintiff, who have come on record after the death of plaintiff According to the plaintiff, suit "A" schedule property is the only access. They had filed the suit for temporary injunction claiming absolute necessity of easement on the suit property.
Defendants have denied such material assertion. Rough sketch filed along with the plaint becomes part and parcel of the pleadings. To the East of the house of plaintiff is the Choultry Road, to the West is the Municipal Conservancy. Whether Municipal conservancy can be considered as access is the moot question. The evidence placed on record would go to show that Municipal conservancy can be used for the limited purpose of taking excreta from the lavatory of the laboratory from the houses. Both the courts have held that other than suit "A" schedule property, plaintiffs have no access to the house situated on the western side of the house of the defendant.
What is argued by the learned counsel for the appellant is that if an alternative way is available to the party, he cannot claim easement of necessity, notwithstanding the alternative way being inconvenient to him. He has placed reliance on the decision rendered in the case of Kirpa and Others Vs. Deviditta and Others, .
If the plaintiff had been using the passage, which is available on the western side of the conservancy, steps of the plaintiffs house would have been there. Evidence of D.W.-1 is considered as self serving testimony. The same is not corroborated by examining any evidence. The learned Judge of the Trial Court has given categorical finding about the easement of necessity in respect of the suit "A" schedule property to the plaintiffs'' house. This factual aspect has been upheld by the First Appellate Court in an appeal filed under Section 96 of CPC. The learned Judge of the First Appellate Court has formulated proper points for consideration under Order 41 Rule 31(A) of CPC and same is found in paragraph 9 of its judgment.
In between "A" and "B" schedule property, there is a small passage and in that passage there is lavatory and bathroom belonging to the defendant. Ex. P-3 is the endorsement of change of katha of "B" schedule property in the name of the defendant. The Trial Court had appointed Sri. K.B. Vijay Kumar as Commissioner for local inspection. He submitted the report and both the parties have not chosen to file objections to the said report and hence it has become evidence under Order 26 Rule 2 CPC. Sketch submitted by the Commissioner depicts that there is door from the defendant''s house to the reach his lavatory and bathroom and the said door is very convenient to reach the lavatory and bathroom from inside the house. The defendant''s house has no doors or windows towards the disputed passage. These circumstances negatived the contention of the defendant that the disputed passage exclusively belongs to him. The main contention of the defendant is that said conservancy is in existence and therefore plaintiff has not right over the disputed passage and that he is not using the disputed passage.
The Commissioner''s report shows that there is an opening to the suit "B" schedule property towards the conservancy. However, it further shows that the height between the ground of the conservancy and that of the suit "B" schedule property is 4 feet and that there are no steps to cover this height. This circumstances shows that the plaintiff is not using that conservancy. That conservancy is not a mam road. On the other hand, the mam road is towards East of the entire building. Earlier the entire building consisted of suit "B" schedule property, suit "A" schedule property and the defendant''s house was a single portion. It became two portions only through a division between the plaintiff and defendant since the property belonged to joint family. Therefore, this suit "A" schedule property is the only access from the main road through which plaintiff has also an opening. Considering the location of the entire building and schedule "B" property and disputed passage and the fact that earlier the entire building was a single portion, possibility of using the disputed passage to reach suit "B" schedule property cannot be ruled out.
The learned counsel for the appellant submits that a comprehensive suit has been filed by the legal representatives of the defendant against the present plaintiff stating that plaintiffs herein have alternative way and therefore existence of absolute necessity does not arise. If the appellants herein are able to demonstrate before the Court about the existence of alternate access to the defendant''s house, then easement of necessity ceases to exist. Till such time, findings given by the Trial Court in a suit filed for permanent injunction upheld by the First Appellate Court cannot be disturbed. Hence, both the substantial questions of law framed by this Court on 31.5.2008 are answered in the affirmative.
ORDER
Appeal is dismissed. The judgment and decree dated 10.8.2005 passed by the First Appellate Court in R.A. 65/2002 confirming the judgment and decree passed in O.S. 217/1993 is upheld.
It is made clear that if the appellants/defendants are able to demonstrate before the Court that the plaintiffs have alternative way to their house, in original suit bearing O.S. 159/2005 easement of necessity recognized by the Trial Court and affirmed by the First Appellate Court ceases to exist.
Parties to bear their own costs.