Sri.Venkataraju, S/o Nanajappa, & Ors. vs Smt.Tara Aiyappa

This defendants'' appeal arises out of the judgment

and decree dated 8.9.2008 passed by the XIII Additional

City Civil Judge, Mayo Hall Unit-1 Bengaluru in

O.S.No.15192/2005. The respondent is plaintiff before the

Trial Court. Subject matter of the suit is a strip of land

described as plaint schedule ''B'' property, measuring east

to west 3'' and north to south 45'' situated at the eastern

side of the plaintiff''s property more fully described as plaint

schedule ''A'' property. For the purpose of convenience, the

parties will be referred to hereafter with their ranks before

the trial Court.

Plaintiff filed O.S. No.15192/2005 against the

defendants for mandatory injunction for removal of the

toilets constructed by them on plaint schedule ''B'' property

and for permanent injunction restraining them from

interfering with her possession of the said property.

Her case in brief is as follows:

The defendants'' are the owners of the site and the

house thereon which situates on the eastern side of plaint

schedule ''B'' property. Originally plaint schedule ''A'',''B'' and

the defendants properties belonged to one Chandrappa.

Smt. Radha Bhaskaran purchased the same under a

registered sale deed dated 24.05.1982 from Chandrappa.

Smt. Radha Bhaskaran sold plaint schedule ''A'' property to

Shekar Poojary under the registered sale deed dated

9.11.1992. In turn plaintiff purchased the same from

Shekar Poojary under a registered sale deed dated

10.09.2003 and in possession and enjoyment of the same

as the absolute owner since the time of the purchase.

Thus, Smt. Radha Bhaskaran is the common vendor for

the plaintiff and defendants. Plaint ''B'' schedule property is

a common passage between plaint ''A'' schedule property

and the property of the defendants''. Plaintiff and her

predecessors in title were/are utilizing the ''B'' schedule

property as the access passage for the purpose of

maintenance of ''A'' schedule property. The said passage

was left for the beneficial enjoyment of plaint schedule ''A''

and the defendants'' property and therefore both have

common rights over the same. The defendants'' on

5.1.2005 encroached upon the same and has constructed

two toilets on the same and thereby obstructed the

plaintiff''s enjoyment of the said common passage. Her

attempts to get relief through the police went in vain. Thus

the suit.

The defendants'' in their written statement

though admitted the ownership of the plaint ''A'' schedule

property but denied that plaint ''B'' schedule property is the

common passage or plaintiff has any right over the same.

They contended that their father purchased the property

including plaint ''B'' schedule property under a registered

sale deed dated 03.07.1969 from Narayanappa the father

of Chandrappa and constructed a house thereon. They

contended that they have constructed toilet as long back as

in 1981 and the suit is barred by time. They contended

that theory of common passage is the invention of the

plaintiff. It is contended that the entries to that effect in

the sale deeds of plaintiff and her predecessors in title

i.e.,Shekar Poojary, Smt. Radha Bhaskaran are deceptive

manipulations.

On the basis of the above pleadings, the trial

Court framed the following issues:

Whether the plaintiff has a right in

getting alleged illegal construction over schedule

''B'' property removed?

Whether the plaintiff proves her lawful

possession and enjoyment over schedule ''B''

property as alleged?

Whether the plaintiff proves the alleged

obstructions?

Whether the plaintiff is entitled to the

relief claimed?

What decree or Order?

Parties adduced evidence. On behalf of the

plaintiff she examined her (husband) Special Power of

Attorney holder as PW 1 and one witness as PW2 and got

marked Exs.P.1 to P.11. The first defendant got himself

examined as D.W.1 and got marked Exs. D1 to D.14.

The trial Court after hearing both the parties by

the impugned judgment decreed the suit on the following

grounds;

(i) In Ex.P.2 the sale deed in favour of the plaintiff,

Ex.P.4 the sale deed dated 9.11.1992 in favour of Shekar

Poojary and Ex.P.5 the sale deed dated 27.05.1982 in

favour of Smt. Radha Bhaskaran the eastern boundary is

shown as 3'' passage;

(ii) When defendants father purchased the property

under Ex. D1, the vendor continued to be the owner of the

remaining (A and B) property on the western side, therefore

there was no occasion to show ''B'' schedule property as

common passage;

(iii) Exs.P.6 to P.8 photographs and the sweeping

admissions of DW.1 show that the defendants have

constructed the toilets on ''B'' schedule property contrary to

the approved plan; and

(iv) Such construction admittedly obstructs plaintiff

from repairing and white washing her house and

enjoyment of her property.

Sri M. Shiva Prakash, the learned counsel for

the defendants assails the sustainability of the impugned

judgment and decree on the following grounds;

(i) Plaintiff cannot maintain the suit for injunction

simplicitor, when the same is sought based on the right of

easement without seeking declaration of right of easement;

(ii) The trial Court failed to appreciate that in

Ex.D.1 sale deed in favour of father of the defendants is

earliest in the point of time and in that there is no mention

of any common passage on the western boundary;

(iii) The trial Court failed to appreciate that the

plaintiff did not produce the title deed of Chandrappa s/o

Narayanappa to show that there was a common passage on

the eastern side which shown as ''B'' schedule property; and

(iv) The trial Court failed to appreciate that the

plaintiff neither examined vendor Chandrappa nor

produced any city survey sketch to prove existence of the

passage.

In support of his arguments he relies upon the

following judgments

(i) D. Ramanatha Gupta -vs- S. Razaack. AIR 1982 Karnataka 314

(ii) Spring Borewells Co. Pvt. Ltd. -vs- Union of India Ministry of Defence A.K. Kapila Station Commandant Law (KAR) 2012 page 898

(iii) Bachhaj Nahar -vs- Nilima Mandal and Another (2008) 17 SCC 491 .

As against that Sri. K.P. Bhuvan, the learned

counsel for the plaintiff in his arguments supports the

impugned judgment on the following grounds;

(i) Section 39 of the Specific Relief Act, provides for

maintaining suit for mandatory injunction simplicitor

without seeking the declaratory relief of right of easement;

(ii) In Ex.P2, P4 and P5 the sale deeds in favour of

the plaintiff, her vendor Shekar Poojary and his vendor

Smt. Radha Bhaskaran show that the plaint ''B'' schedule

property is the common passage since prior to 1982 and

they are not challenged;

(iii) The omission of the word ''common'' in Exs.P2,

P.4 and P.5 instead of common passage is due to

inadvertence, and the same does not enure to the benefit of

the defendants'' to contend that there is no common

passage; and

(iv) The photographs and the admission of D.W.1

themselves show that the defendants'' have constructed the

toilets over the ''B'' schedule property and thereby

obstructed the right of common passage.

In support of his arguments he relies upon the

following judgments:

(i) Putte Gowda @ Ajjegowda -vs - Rame Gowda

1996 (5) KLJ Supplement 306;

(ii) Lakshmana Konar and another -vs-

Namalwar Konar (decease by LRs) and others AIR 2004

Madras 264;

(iii) M. Kumar -vs- B.C. Vijay Kumar, Laws (KAR)-

2013-6-17;

(iii) Maria Margarida Sequeira Fernandes and

others -vs- Erasmo Jack De Sequeira (dead) Through

LRS., (2012) 5 SCC 370;

In the light of the aforementioned rival

contentions, the following questions arises for

consideration in this appeal:

Whether the plaintiff has satisfactorily

pleaded and proved that ''B'' schedule property is

the common passage and she has the right of

easement over the same?

Whether the judgment and decree of the trial

Court is sustainable?

Some of the undisputed facts of the case are as

follows:

S.Narayanappa s/o Ramaiah was the owner of land

bearing Sy. No.125/5 situated at Murugeshpalya,

Kodihalli Village, Varthur Hobli, Bengaluru South

Taluk. He developed a lay-out and made sites in that.

Out of those sites he sold site No.31 katha No.513 to

the father of the defendants under the registered sale

deed dated 3.7.1969 the copy of which is Ex.D.1.

D.N.Chandrappa is the son of Narayanappa. He sold

site No.31-A katha No.514 along with Mangalore tiled

house constructed thereon to one Smt. Radha

Bhaskaran under the registered sale deed dated

27.05.1982 the copy of which is Ex.P.5. The same is

the plaint schedule ''A'' property. Plaint schedule ''A''

property situates on the western side of the property

sold by Narayanappa to the defendants'' father under

Ex.D.1. In Ex.D.1 the western boundary is shown as

site No.31. Plaint schedule ''A'' property is shown in

Ex.P.5 sale deed as 31-A. The first alienation after

Ex.P.5 was the one under Ex.P.4 to Shekar Poojary

under Ex.P.4 on 9.11.1992. In the schedule of

Ex.P.4 the property number is shown neither as site

No.30 or 31-A but it is shown as property No.1 katha

No.514. When that is further conveyed to the plaintiff

under Ex.P.2 the same description has continued.

Having regard to the aforesaid admitted facts

the only questions are "whether there was a passage much

less a common passage between the property sold by

Narayanappa to the defendants'' father and the property

sold by Chandrappa to Smt. Radha Bhaskaran"?. "If so

whether Chandrappa or his successors in interest

had/have any right of easement over such passage or the

common passage"?

In Bachhaj Nahar''s case referred to supra the

Apex Court has dealt with the requirements of the

pleadings in cases relating to the right of easement. The

relevant paragraphs are extracted below:

"19. Easements may relate to a right of

way, a right to light and air, right to draw

water, right to support, right to have

overhanging eaves, right to drainage, right to a

water course, etc. Easements can be acquired

by different ways and are of different kinds,

that is, easement by grant, easement of

necessity, easement by prescription, etc. A

dominant owner seeking any declaratory or

injunctive relief relating to an easementary

right shall have to plead and prove the nature

of easement, manner of acquisition of the

easementary right, and the manner of

disturbance or obstruction to the easementary

right.

The pleadings necessary to establish

an easement by prescription, are different from

the pleadings and proof necessary for

easement of necessity or easement by grant.

In regard to an easement by prescription, the

plaintiff is required to plead and prove that he

was in peaceful, open and uninterrupted

enjoyment of the right for a period of twenty

years (ending within two years next before the

institution of the suit.) He should also plead

and prove that the right claimed was enjoyed

independent of any agreement with the owner

of the property over which the right is claimed,

as any user with the express permission of the

owner will be a licence and not an easement.

For claiming an easement of necessity, the

plaintiff has to plead that his dominant

tenement and the defendant''s servient

tenement originally constituted a single

tenement and the ownership thereof vested in

the same person and that there has been a

severance of such ownership and that without

the easementary right claimed, the dominant

tenement cannot be used. We may also note

that the pleadings necessary for establishing a

right of passage is different from a right of

drainage or right to support of a roof or right to

watercourse. We have referred to these

aspects only to show that a court cannot

assume or infer a case of easementary right,

by referring to a stray sentence here and a

stray sentence there in the pleading or

evidence.

A right of easement can be declared

only when the servient owner is a party to the

suit. But nowhere in the plaint, the plaintiffs

allege, and nowhere in the judgment,....

It is fundamental that in a civil suit,

relief to be granted can be only with reference

to the prayers made in the pleadings. That

apart, in civil suits, grant of relief is

circumscribed by various factors like court fee,

limitation, parties to the suits, as also grounds

barring relief, like res judicata, estoppel,

acquiescence, non-joinder of causes of action or

parties, etc., which require pleading and proof.

Therefore, it would be hazardous to hold that

in a civil suit whatever be the relief that is

prayed, the court can on examination of facts

grant any relief as it thinks fit. In a suit for

recovery of rupees one lakh, the court cannot

grant a decree for rupees ten lakhs. In a suit

for recovery possession of property ''A'', court

cannot grant possession of property ''B''. In a

suit praying for permanent injunction, court

cannot grant a relief of declaration or

possession. The jurisdiction to grant relief in a

civil suit necessarily depends on the pleadings,

prayer, court fee paid, evidence let in, etc."

The perusal of the plaint does not make out

whether the plaintiff''s claims the right of easement by

prescription or by necessity. In para 6 of the plaint she

states that ''B'' schedule property is the common passage

between ''A'' schedule property and the property of the

defendants. In para 7 of the plaint she has very baldly

stated that herself and her predecessors in title were/are

utilizing the ''B'' schedule property for better enjoyment of

''A'' schedule property. She doesn''t state whether that

was/is the right of the easement of necessity covered under

Section 13 of easement''s Act or acquisition by prescription

are covered under Section 15 of Easement Act. As held by

the Supreme Court in Bachhaj Nahar''s case referred to

supra pleading necessary for proof of easement of necessity

or by grant and easement by prescription or different. It is

further held that Court cannot assume or infer a case of

easementary right, by referring to a stray sentence here

and there in the pleading or evidence. It is further held in

the said judgment that such pleadings are necessary to

ensure framing of well defined issues on such pleadings

are required to enable the parties to lead evidence and the

Court to grant appropriate relief otherwise Court cannot

focus the attention of the parties or its own attention on

that claim or relief by framing appropriate issues.

Following judgment of the Supreme Court this Court in

Spring Borewell''s Co. Pvt. Ltd''s case held that unless the

plaintiff pleads the requirements of easement of

prescription or easement of necessary as the case may be

and seek declaration in that regard Court cannot grant the

relief of mandatory injunction. This Court further held

that though the judgment in D. Ramanatha Gupta''s case

referred to supra per in curium in Putte Gowda''s case

referred to supra, this Court has to follow the judgment of

the Supreme Court in Bachhaj Nahar''s case. Therefore

this Court also has to follow the ratio of Bachhaj Nahar''s

case and Spring Borewell Co. Pvt. Ltd''s case.

The trial Court has not framed any issue on the

right of easement of the plaintiff. When it is not the case of

the plaintiff herself that she is in possession of ''B'' schedule

property and she only claimed the limited right of entry

into ''B'' schedule property for the purpose of maintaining ''A''

schedule property the trial Court frames issue No.2 on her

lawfull possession and enjoyment of the ''B'' schedule

peroperty and answers the same in affirmative. Such

finding is unsustainable in view of the judgments of the

Apex Court in Bachhaj Nahar''s case and Spring

Borewell''s case referred to supra.

Coming to the proof of the case of easement or

right of common passage, as already pointed out there is

no specific pleading to show whether plaintiff claims

easement by necessity or easement by prescription. If it is

considered as the case of easement of necessity, then the

plaintiff was required to show that Chandrappa had such

right. Though in Ex.P.5 the sale deed executed by

Chandrappa it is said that he has acquired site No.1 form

his father under registered deed dated 13.06.1969 and

constructed the house on the same along with other

houses as per the approved plan 07.08.1970 the plaintiff

does not choose to produce those documents. Except the

self serving rough sketch produced along with the plaint

she doesn''t choose to produce any lay-out plan or the

sketch issued by any competent authority to show that

there was/is a 3'' passage on the eastern side of the

property conveyed to Smt. Radha Bhaskaran as stated in

Ex.P.5. Ex.P.5 does not even state that it is a common

passage. She doesn''t examine neither Chandrappa nor any

of his heirs to show that he was given a right of easement

of necessity or he had any easement of passage by

prescription. Apparently in Exs.P.2 and P.4 the word

''common'' is inserted to extend the word '' 3'' passage'' to

expand the right from 3'' passage to 3'' common passage.

Ex.D.1 the sale deed dated 03.07.1969 in

favour of the defendants'' father is subsequent to the

alleged title deed of Chandrappa dated 13.06.1969 referred

to in Ex.P.5. If Narayanappa had conveyed any right of

common passage (easement of necessity) to Chandrappa,

then in Ex.D.1 the same would have been reflected while

describing the western boundary of the property sold.

Therefore there is no merit in the contention that since the

western property was retained by Narayanappa himself

there was no need for him to show the western boundary

as common passage. That too when it is not the case of the

plaintiff that ''B'' schedule property is site No.30. In this

context also the suppression of the title deed of

Chandrappa speaks in volumes. Having regard to these

facts the findings of the trial Court that plaintiff is in lawful

possession and enjoyment of ''B'' schedule property is

unsustainable.

So far as the mandatory injunction for

demolition of the toilets DW.1 himself admits that he has

constructed those toilets outside the peripheral wall of the

house stretching over the ''B'' schedule property contrary to

the approved building plans at Exs.D.8, D.10 and D.12

without leaving any setback. He admits the construction

as depicted in the photographs Exs.P.6 to P.8. They show

that the toilets are constructed taking support from the

wall of the plaintiff''s house also. The walls of the toilets

are imbedded in the wall of the house in ''A'' schedule

property. Defendants'' have no right to do so. Such unjust

acts of the defendants'' are required to be remedied as held

by the Apex Court in Maria Margarida Sequeira

Fernandes''s case referred to supra. Therefore the said

toilets are required to be demolished. Therefore, the decree

of the trial Court sustains to that effect. Resultantly the

appeal is partly allowed. The impugned judgment and

decree is partly set aside. The suit is partly decreed. The

finding of the trial Court that plaint schedule ''B'' property is

the common passage and plaintiff is in lawful possession

and enjoyment of the same is hereby set aside. Further the

decree of perpetual injunction against the defendants''

against interference of the plaintiff''s peaceful possession

and enjoyment of plaint schedule ''B'' property is hereby set

aside. The decree for mandatory injunction for removal of

the toilets constructed over ''B'' schedule property is hereby

confirmed. No order as to costs.