Sri Pillappa vs Sri G.P. Narayanappa and Sri P. Munaiah @ Muniappa

A.S. Bopanna

The appellant herein is the defendant in O.S. No. 612/2004. The suit in question was filod by the plaintiffs seeking for declaration and mandatory as well as permanent injunction insofar as the ''B'' schedule property is. concerned. The Court below, after considering the rival contentions has decreed the suit. The defendant therefore claims to be aggrieved by the same and is before this Court. The parties are referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity

The facts in brief are that, the plaintiffs contend that, they are the owners of the property bearing no. 96 and 96/1 in Khatha No. 2 and measurement of their individual properties had been provided. With regard to the said properties, the details have been furnished in the manner in which the plaintiffs have come in possession and ownership of the said properties. In any event, the details of the same need not be adverted to in the instant appeal inasmuch as the issue basically relates to the ''B'' schedule property measuring 8 ft. East to West and 60 ft. North to South. It is claimed as the passage to the property belonging to the plaintiffs in its front side. It is their case that, the defendant has unauthorisediy put up construction in the ''B'' schedule property by constructing a toilet and stair case on the eastern side of his premises and as such, the entrance from the 6th Cross Road, Garudacharpalya to the plaintiffs property is the only entrance to access the property belonging to the plaintiffs conveniently and therefore, if the construction is permitted and the entrance is blocked, the plaintiffs would be put to hardship. It is in that context, the plaintiffs have contended that the ''B'' schedule property be declared as a passage and plaintiffs have easementary right over the same. Further relief to direct the defendant to demolish the unauthorized and illegal construction is also prayed.

The defendant had entered appearance in the suit and hod filed a detailed written statement disputing the claim putforth by the plaintiffs. The fact that the plaintiffs are the owners of the property bearing no. 96 and 96/1 is not seriously disputed. However, the contention of the defendant is that, they are entitled to make use of the space and the said space cannot be considered as a passage to the premises of the plaintiffs. it is therefore contended that, the case of the plaintiffs that it is an easement of necessity cannot be accepted inasmuch as the plaintiffs have access from 5th Cross as well. Therefore, urging such contention insofar as ''B'' schedule property is concerned, the defendant have opposed the suit.

The Court below after noticing the rival contentions has framed as many as seven issues for its consideration, which reads as hereunder:-

Does plaintiff'' prove that property described in Plaint A-schedule was allotted to the share of their father Pillappa at a partition as pleaded in the plaint?

Was the passage described in the plaint B-schedule retained as a common passage os alleged by the plaintiff?

Did defendant put up ady construction and cause obstruction to the said passage?

Have the plaintiffs got the right to use plaint B-schedule property as a passage and way of easement of necessity?

What decree or order?

Whether the'' plaint.ffs are entitled for mandatory injunction?

Whether the plaintiffs are entitled for permanent injunction?

In order to discharge the burden cast on the parties, the 1st plaintiff examined himself as PW-1 and two witnesses were examined as PW-2 and PW3 and the documents at Ex. P1 to P9 were relied. The defendant examined himself as DW-1 and relied on the photograph which was marked at Ex. Dl. In the pending suit, a learned Advocate Smt. B.L. Kanti was appointed as Commissioner and she has been examined as CW-1.

In the light of the evidence, which was available before the Court, the Court below has decreed the suit. In the instant appeal the defendant has raised several contentions te contend that) dte judgment of the Court below cannot be sustained. Having noticed the said contention at that stage, the conclusion which was to be reached in the instant appeal is as to whether, there is a passage on the eastern side of the plaintiffs property and as to whether the said construction of the defendant would block the access from the 6th Cross was to be determined. In that context, though several contention had been advanced to contend that, the judgment is not to be accepted by this Court, this being a first appeal, the matter which was in issue was to be resolved by taking note of the evidence, which was available on record.

In a matter of the present nature, where both the parties did rot have any document of title, considering that it was acquired by partition which was not properly documented, under which the boundaries could have been ascertained so as to decide with regard to the rights of way that had been left with regard to the property, the report of the Commissioner was the most essential document to have been perused and arrived at a conclusion, more particularly in a circumstance, when the ownership of ''A'' schedule property is not in dispute and only the question was with regard to the ''13'' schedule passage was to be considered.

In that regard, a perusal of the records of the Court below would disclose that, though a Commissioner had been appointed by the Court below, the report of the Commissioner is not available on record. Thus, having noticed this aspect of the matter and also from the documents which were available on record, namely the Ex. P6 to P8, the photographs and the plan which was at Ex. P9, it was clear that there existed a passage, but it was to be determined as to what is the width of the passage in front of the plaintiffs property and in that regard, the width to be available at the entrance to the passage from the 6th Cross Road, Garudacharpalya.

Hence, keeping the undisputed document, namely the plan at Ex. P9, a Commissioner was appointed by this Court to make spot verification and to measure the width of the road by taking Sri. Kakappa''s property which situate opposite to ''A'' schedule property as the boundary for the purpose of measurement from East to West. In that regard, a detailed order was passed by this Court on 16.07.2012 and Sri. Muniswamy Gowda, loan ed counsel was appointed as a Court Commissioner to undertake the said exercise. The learned Court Commissioner has filed his report on 25.07.2012. The report submitted by the Commissioner i5 marked as Ex. Cl and the sketch produced along with as Ex. C2 with the consent of the learned counsel for the parties.

A perusal of the report of the Commissioner along with the sketch submitted would indicate that, the learned Commissioner has taken the boundary stones of Sri. Kakappa''s property as the outer line of die said Sri. Kakappa''s property and from that position has measured the passage up to the front of the three properties, namely that of the defendant and the said plaintiffs no. 1 and 2 from East to West. A perusal of the same would indicate that, the width of the passage in front of the 2nd plaintiff''s property measures 5 ft. 7.5 inches (5''. 7.5"), width of the passage in front of the 1st plaintiff''s property measures 9 ft. 5 inches (9''. 5"). Insofar as beside the defendant''s property, three measurements are indicated by the Commissioner. From the boundary of Sri. Kakappa''s property to the wall of the defendant''s property, it measures 7 ft. 5.5 inches (7''.5.5"). Similarly, up to the disputed staircase, it measures 5 ft. 2 inches (5''. 2") and at the point of entrance from the 6th Cross, the measurement is indicated as 2 ft, 9 inches (2''. 9") from Sri. Kakappa''s boundary to the alleged illegal construction of a toilet therein. If the said measurements, which has been provided by the Commissioner is taken into consideration, keeping in view the fact that the sketch has been prepared by the Commissioner and all the parties have affixed their signature to Va.:: said sketch, the width of the passage would have to ba determined by this Court.

Keeping these aspects in view, if the judgment of the is in front of the house of the plaintiffs no. 1 and 2 would have to be declared as a easement of necessity in favour of the plaintiffs. Though, certain other access has been indicated from 5th cross, it would have to be noticed that, the said access is not directly accessible by the plaintiffs as they would have to take a circuitous route and the access from the 6th Cross Road in any event was always aNailable to the plaintiffs but has now been narrowed because of the construction, which is being put up by the defendant. Therefore, to the extent of the Court below declaring the `B'' schedule property as a easement of necessity in favour of the plaintiffs and that the plaintiffs have the right to use the passage as their ingress and egress without any obstruction is justified and to that extent the judgment is certainly not erroneous.

The question that however arises for consideration is, whether the Court below was justified in directing the defendant to remove the entire unauthorized construction. In that regard, the sketch at Ex. C2 and the measurement which has been noticed by the Court below would be relevant. The different measurement, which has been noticed above would indicate that, it is not uniform at all points and therefore to arrive at a conclusion, the width of the passage, which is available in front of the 2nd plaintiff is taken as the basis to provide that the same shall be the minimum width that should be available. No doubt, the width indicated therein is 511 7.5 inches (5''. 75"). However, considering the fact that there should be a reasonably wide passage to enter from the 6th Cross Road, the passage in any event would have to be little more wider at the entrance.

Therefore, keeping that aspect in view, the width of the passage on turning from tie 6th Cross Road taking the exterior of the boundary of Sri. Kakappa''s property as the point, it should be a minimum of 6 ft. when measured from East to West towards the defendant''s property. Hence, the additional construction which has been put up by the defendant shall be demolished by them to that extent to ensure that there is a minimum width of 6 ft. in the manner stated above. The defendant shall ensure that they themselves bring it in accordance with the terms indicated above within a period of six weeks from the date of receipt of copy of this judgment, failing which the plaintiffs would be entitled to secure execution at defendants risk and cost. Hence, only to the said extent, the judgment of the Court below stands modified to explain the width of the road at the entran4,e to the passage for the plaintiff''s property from the 6th Cross Road, Garudacharpalya. With the said modification, the judgment and decree of the Court below stands affirmed in all other respects. Since, a modification with regard to the width of the property is indicated, the appeal is disposed of in terms of the above. Parties to bear their own costs