Shankerappa and Others vs Sharanappa

K.N. Phaneendra, J.—The present second appeal is preferred by the aggrieved plaintiff who succeeded before the trial Court in O.S. No. 196/1996 on the file of the Munsiff at Bidar and filed before the First Appellate Court i.e. Fast Track Court-IV Bidar in R.A. No. 176/2004.

For the purpose of convenience and easy understanding I would like to refer the ranks of the parties as per their ranks before the trial Court.

The plaintiff Shankerappa filed a suit against three defendants by name Sharnappa, Vaijinath and Shantappa for declaration that the plaintiff is the absolute owner in possession of the house property bearing its No. 1-72 situated at Village Gornalli, Taluka Bidar along with its open space and right to use the common passage as shown in the sketchmap having specific boundaries and also prayed for perpetual injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the suit house, open space and also common passage.

The exposition of the facts as per plaintiff are that, the plaint is the owner and possessor of the house bearing No. 1-72 and plaintiff has acquired the house bearing No. 1-72 comprising of 4 rooms and also having open space towards eastern side, from his ancestors. It is alleged that fore-fathers of the plaintiff have been using the common passage to pass through and reach the main road of the village and plaintiff and his family members have been enjoying their house, open space and also the common passage, which is measuring 4 feet width situated in front of the house of the first defendant. It is further contended that the defendants who are neighbours of the plaintiff being intentionally restraining the plaintiff and his family members from passing through the common passage and in the open space. The defendants have also interfered with the open space of the plaintiff without any right title, interest or possession over the said portion and they made attempts to close that common passage by covering with thorn fencing etc. The plaintiff has been using the said common passage for the purpose of tethering their cattle''s, storing the fodder and keeping the agricultural implements in the open space. In spite of repeated request the defendants did not desist themselves from interference. Therefore, the plaintiff filed the suit for the above said reliefs.

In pursuance of the summons issued by the Court the first defendant appeared before the Court and contested the proceedings as the steps were not taken so far as second and third defendants and the suit was dismissed against the second and third defendants.

The brief facts of the defense taken up by the first defendant is that the suit of the plaintiff is not maintainable and the plaintiff has not come up with truth before the Court and he has no title over the suit schedule property particularly the open space claimed by the plaintiff it is contended that without their being any proof to the right over the open space and the passage, the plaintiff cannot seek for any title or right over the said passage. It is specifically contended by the defendant No. 1 that the plaintiff has not depicted the correct picture pertaining to the suit schedule property in the sketch and it is wrongly shown to the suit open space. It is denied by the defendant that the plaintiff has been enjoying the said open space and also common passage as such situated in front of the defendants property. It is contended that there is absolutely no measurement to the house property and the open space and no documentary evidence, produced to establish their title or possession or enjoyment over the suit open space and passage. Only on the imaginary allegations of interference, obstructions without there being any right title, interest over the open space or the passage alleged, the plaintiff has approached the Court and he has not properly described the boundaries to the said property. In fact the defendant No. 1 by giving boundaries to the property has claimed that the suit of the plaintiff is liable to be dismissed.

On the basis of the rival contentions, the trial Court has framed the following issues:--

"(1) Whether the plaintiff proves that he is the owner and possessor of suit house with open space measuring East-West 60'' and North-South 4?

(2) Whether the plaintiff proves that he and his forefathers were and are in use of common passage of 4'' situated in front of his house?

(3) Whether the defendant No. 1 proves that she is owner and in possession of suit open space and common way?

(4) Whether valuation made in the plaint is incorrect and the Court fee paid thereon is insufficient?

(5) If issue No. 4 is in the affirmative whether this Court has no jurisdiction to try the suit?

(6) Whether the plaintiff is entitled for reliefs as claimed?

(7) What order or decree?"

In order to prove his case the plaintiff has examined as PW.1 and two witnesses on his side as PWs. 2 and 3 and got marked Exs. P1 to P3. The defendant No. 1 also examined himself as D.W..1 and examined three witnesses as D.W.s. 2 to 4 and got marked Exs. D1 to D5. After appreciating the oral and documentary evidence the trial Court answered issue Nos. 1, 2 and 6 in the affirmative and issue Nos. 4 and 5 in the negative and also holding issue No. 3 does not survive for consideration and ultimately decreed the suit of the plaintiff for the relief claimed by him.

Being aggrieved by the said judgment and decree passed by the trial Court, defendant No. 1 has preferred an appeal before the Civil Judge (Sr. Dn) at Bidar, in R.A. No. 176/2004. Subsequently, the said appeal was tried by the Fast Track Court-IV at Bidar. The defendant has challenged the said judgment and decree on several grounds particularly claiming that the plaintiff has not proved the case with regard to his title, possession and enjoyment over the open space or the passage claimed to be a common passage; no documentary evidence has been placed to substantiate his right over any of the property and the trial Court has committed a serious error not only relying upon the said admission of the defendant and decreeing the suit of the plaintiff He also contended that the trial Court has not properly appreciated the oral and documentary evidence on record and wrongly recorded the finding in favour of the plaintiff The First Appellate Court on the basis of the grounds urged, framed the following point for consideration:--

"(i) Whether the trial Court committed any error in appreciating the evidence brought on record and decreeing the suit in favour of the plaintiff?

The First Appellate Court answering the point in the affirmative and finally allowed the appeal. Consequently, dismissed the suit of the plaintiff"

Against the said judgment passed by the First Appellate Court the plaintiff has approached this Court by way of second appeal. Before this Court the plaintiff has contended that the First Appellate Court without appreciating the materials on record properly, dismissed the suit of the plaintiff During the pendency of the appeal it appears the appellant died and his legal representatives were brought on record. The appellants have contended before this Court that the Lower Appellate Court has completely erred in holding that the plaintiff was not in possession and enjoyment of the open space nor the passage as claimed and thereby committed a serious error. It is also contended that though there was no dispute between the parties with regard to the existence of 4 feet passage and the usage of the said passage by the plaintiff and also the defendant has admitted himself in the course of examination before the trial Court with regard to the right of the plaintiff, in spite of that the Appellate Court blindly placed reliance on Ex. D5 and dismissed the suit of the plaintiff by wrongly appreciating the oral and documentary evidence on record.

On the basis of the grounds urged before this Court, the Court has framed the following substantial question of law:--

"Whether the judgment and decree passed by the Appellate Court reversing the judgment and decree passed by the trial Court and dismissing the suit of the plaintiff is perverse and arbitrary, in contrary to law and material on record including the admission of D.W. 1 in his evidence regarding the existence of pathway?" 11. I have heard the arguments of Sri Sanjeev Kumar C. Patil, learned counsel for the appellants on the above said substantial question of law. The respondent and his counsel remained absent before the Court. Therefore, on perusal of the entire materials on record and after going through the judgment of the trial Court and the First Appellate Court and also the evidence, this Court has taken up the matter for disposal on merits.

The main crux of the dispute between the parties is with regard to the open space alleged to be situated on the Eastern side of the plaintiffs property, of course so far as house bearing No. 1-72 of the plaintiff is concerned there is no much dispute in the written statement by the defendant. However, the defendant has disputed the ownership and enjoyment of the plaintiff over the open space situated on the Eastern side of the plaintiffs house and the passage. It is also admitted that to the Southern side of the plaintiffs property there lies house of defendant No. 1. Defendant No. 1 has also admitted the existence of a passage to the south of his property and according to him in his written statement as well as in the evidence the said passage is meant for himself and his other brothers and he never admitted that plaintiff had any right over the said passage or the open space. The defendant thereby has also not admitted the title, interest or possession over the open space or the passage situated in front of his house. Therefore, it is incumbent upon the plaintiff to prove the said aspect in order to claim right of passage situated in front of the house of defendant No. 1.

Let me first consider the judgment of the trial Court, where in, the trial Court relied upon Exs. P1 to P3, Ex. P1 is the rough sketch and Ex. P2 and P3 are the extract of tax assessment and tax paid receipt. Of course the trial Court has also accepted that these documents do not depict the measurement of the said property. On perusal of the house number, the plaintiff has admitted even as per Ex. D4 that the said Khata extract belonging to the plaintiff pertaining to the said house as the open space is situated abutting to the house. Therefore, the trial Court has held that the plaintiff has got right over the said open space and that the defendant has admitted that the passage is there which is abutting to the said open space in front of the house of defendant and it is also admitted by defendant No. 1 that the said passage leads to main road and therefore basing on these circumstances the trial Court has come to the conclusion that the plaintiff proved his case though there is no title deed pertaining to the open space or passage. Nevertheless in view of the admission and the surrounding circumstances the trial Court has held that the plaintiff has proved his case.

The First Appellate Court in fact in detail discussed the above said facts appreciating the evidence on record has meticulously considered the documentary evidence placed before the Court. It is held that when the plaintiff has prayed for declaration of his right title interest over the open space and also claimed the right over the passage as common passage, it goes without saying that he never prayed before the Court that he has got any easementary right over the said passage for the beneficial enjoyment of his property. He never admitted that defendant No. 1 as a servient owner and plaintiff as a dominant owner and never claimed any easement right over the passage. Even if it is not claimed if the said usage of the passage by the plaintiff is inevitable and if it is an easement of necessity the Court can grant such remedy by looking into surrounding circumstances by moulding the relief The Appellate Court after finding out the boundaries to the property of the plaintiff and also admission of the plaintiff as well as the defendant, it found that there is door which opens towards the North of the plaintiffs property and immediately after the said door there is open road which is common road so that the plaintiff can utilize the said road for the purpose of reaching the main road. Therefore, the First Appellate Court has come to the conclusion that it cannot be said that the plaintiff can use the passage as an easement of necessity. The First Appellate Court has also considered the sketch produced by the plaintiff and compared the same with the evidence of the plaintiff and come to the conclusion that the suit sketch do not properly depict the correct topography of the house of the plaintiff and defendants property. Further, added to that the First Appellate Court has also come to the conclusion, that it is burden on the plaintiff to establish his right title interest over the open space and the passage. The documents produced at Ex. P1 to P3 nowhere establishes the title to a particular portion of the property much less the open space as claimed by the plaintiff Though it is admitted by the defendant that there is a passage in front of his property but nowhere it is admitted that the plaintiff has got any right of his easement right over the said property. Therefore, considering all the above said circumstances the First Appellate Court has come to the conclusion that plaintiff himself has not proved the case against the defendant, though some admissions are there on the part of defendant No. 1 such admissions cannot be relied upon in order to grant decree in favour of the plaintiff, wherein the plaintiff himself has failed to prove his case.

On re-appreciation of the materials on record, it is seen from the documents Ex. P1 to P3 the said documents are not the title deeds. It is a well propounded principle of law that the revenue records or the municipal records will not confer any title on the parties to any extent though the learned counsel for the appellant argued that in the villages the extent of the property and boundaries of the property will not be shown in the revenue records or the municipal records in fact they very shabbily maintained the documents. That doesn''t mean to say that on such imaginary assumptions the Courts which are bound to render justice on the basis of legal material produced before the Court can''t on the basis of imaginary grounds pass any decree in favour of the plaintiff Therefore, on seeing Ex. P1 to P3, at no stretch of imagination any Court can say that the plaintiff has established his title over the open space or he has got any right over the common passage. It is worth to mention here the First Appellate Court has rightly observed that the plaintiff is not claiming any easementary right but he claims passage as a common passage that shows that equal right interest with that of defendant No. 1. When such being the case, when the plaintiff has claimed right over the passage, it is incumbent upon the plaintiff to prove the existence of such right either by means documentary evidence or by means of oral evidence. Of course such right can also be accepted if by means of proving uninterrupted enjoyment of the passage for more than 20 years, which create a prescriptive right over such property in favour of a person who claims it, but nowhere in the plaint the plaintiff has stated that he has been enjoying the common passage as a matter of right and he has perfected his right by means of prescription for being enjoyed for more than 20 years. Therefore, the First Appellate Court even in spite of certain admission on the part of the defendant to the effect that the plaintiff for some time was using the said passage for the purpose of reaching his house even for a moment admitting that the plaintiff had been using such passage for the purpose of reaching his house is not sufficient declare any right as such acquired by the plaintiff it is incumbent upon the plaintiff how long he enjoyed the said right whether there was any obstruction at any time, whether he has perfected his right of such usage by means of prescription for having use of more than 20 years. Unless and until such facts are pleaded and proved no Court can draw an inference that the plaintiff had perfected his right over that passage as a common passage and is the owner along with the defendant. Therefore, I do not find any strong reasons with regard to the opinion expressed by the First Appellate Court so far as this aspect is concerned.

Now coming to the usage of passage, though the plaintiff has examined himself and examined three witnesses, they have stated that the plaintiff was using the said passage but they never stated in what capacity and under what right the plaintiff has been using or enjoying the passage. Merely using the passage for some time is not sufficient to confer any right title, interest over the said passage. The law only recognizes an uninterrupted usage of the passage for more than a period of 20 years to confer any right of prescription to the person who claims such a right, otherwise if the plaintiff has no other way to reach his house then only the Court has see whether he can exercise the right by claiming right of easement of necessity over the said portion of the property. This particular aspect also on facts in detail considered by the First Appellate Court. It is also seen that there is no measurement to the property at all even in Ex. P1, it does not disclose how many doors are there to the house of the plaintiff, in which portions these doors are situated and what exactly the boundaries to the plaintiffs property. It is simply shown that towards the East an open space is situated, towards the West Ganesh Mandir is situated and to the North Kallappa''s house is situated and towards the South the house of defendant No. 1 is situated. But in the evidence of the plaintiff he has categorically admitted the existence of another door towards North of his house and in front of that door, there is open space and that would lead to gain access to the road. Therefore, it goes without saying that he has got some other way to reach the road from his house. It is also not explained by the plaintiff either in the plaint or in the evidence as to the situation of the main door to his house, when it is said that it is only a open space situated to the East of the plaintiffs property and from that open space he has to pass through the common passage to reach the road. But he never stated that it is the only way to reach the main road. The evidence of plaintiff further amplifies that, there lies one more door towards Ganesh Mandir i.e. to the West of the plaintiffs property. It is also admitted that, to the West of the plaintiffs property there lies a road immediately adjacent to Ganesh Temple this also clearly shows that the plaintiff apart from the claimed common passage he has got two more doors to his house. Therefore, at no stretch of imagination it can be said that the plaintiff has an easement of necessity so far as this passage is concerned situated in front of the house of defendants.

In view of the above facts, looking from any angle either on the basis of oral evidence or on the basis of the documentary evidence, it can be said that the plaintiff has proved that he was the owner in possession and enjoyment of the open space and has got any right to use that passage as a common passage or even to use the said passage as an easement of necessity. Therefore, I am of the opinion, the First Appellate Court has properly appreciated the oral and documentary evidence on record and after satisfying itself with regard to the admission of defendant No. 1 and also the admission of the plaintiff and on the basis of the documentary evidence and oral evidence properly passed the decree, dismissing the suit of the plaintiff, I do not find any strong reasons to interfere with judgment of the First Appellate Court. Therefore, the substantial question of law framed by this Court is answered in the negative.

Consequently, the second appeal fails and the same is dismissed.