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®IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 17TH DAY OF AUGUST 2012

BEFORE

THE HON’BLE MR. JUSTICE A S BOPANNA

R.F.A. NO.506/2010

Between :

M/s. Spring Borewells Co.Pvt.Ltd.,No.41 (Old No.28), Cubbon RoadBangalore – 560 001Rep. by its DirectorShri K.L. SwamyS/o late K. LakshmansaAged about 62 yearsCubbon Road, Bangalore-1 … Appellant

(By Sri S.K.V. Chalapathy, Sr.Counsel for Sri S Nanjundaswamy, Sri B.R. Narayana Rao & Sri S Sukumar, Advs.)

And :

1. Union of IndiaBy its Principal SecretaryMinistry of DefenceNew Delhi – 110 001.

2. Mr. A.K. Kapila, ColonelAdministrative CommandantFor Station CommanderStation Headquarters CellK & K Sub-AreaCubbon RoadBangalore – 560 001.

3. The Station CommandantStation Headquarters CellK & K Sub-Area

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Cubbon RoadBangalore – 560 001.

4. Ministry of DefenceHead QuartersSouthern CommandPoona by its Commandant. .. Respondents

(By Sri N Devhadas, Sr. Counsel for Sri Y Hariprasad, CGSC for R1 to 4)

This R.F.A. is filed under Section 96 and Order-41Rule–1 of CPC, against the judgment and decree dated19.12.2009, passed in O.S.No.7123/2006 on the file of theIX Addl. City Civil and Sessions Judge, Bangalore,dismissing the suit for permanent and mandatoryinjunction.

This appeal having been reserved for judgment,coming on for pronouncement this day, the Courtpronounced the following :

J U D G M E N T

The appellant herein is the plaintiff in

O.S.No.7123/2006. The said suit was filed by the

plaintiff seeking for the relief of permanent and

mandatory injunction. The Court below considering the

rival contentions has dismissed the suit by its judgment

and decree dated 19.12.2009. The plaintiff claiming to

be aggrieved by the same is before this Court.

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2. The parties would be referred to in the same

rank as assigned to them before the trial Court for the

purpose of convenience and clarity.

3. The case of the plaintiff is that it is a private

limited company and is the absolute owner of the

property bearing No.41 (Old No.28), Cubbon road

Bangalore with old buildings therein. The plaintiff

claims to have purchased the said property under four

sale deeds dated 07.12.1984, 10.12.1984, 11.12.1984

and 10.12.1984 respectively. The property owned by

the plaintiff is described in schedule ‘A’ to the plaint.

The property of the plaintiff is stated to be bound on the

east by the military property belonging to the second

defendant; west by St.Andrew’s Church: North by

Private property and South by Government land and

thereafter Cubbon Road. The plaintiff is stated to be

using the vacant property towards the south of its

property for the purpose of ingress and egress through

the gate which is towards the Cubbon Road. It is

averred that except the said entry, there is no other

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place to enter the plaintiff’s property. The property on

the east belonging to the military is the Station Head

Quarters Cell, K & K Sub Area and there are buildings

on infantry cross road and there is a pakka compound

in between the property belonging to the military and

the plaintiff in bifurcating the same. To the West, there

is a Church and thereafter M/s.L & T property.

Accordingly, the plaintiff claims to be using the entry

from the Cubbon road for more than 22 years from the

date of the purchase without any let of hindrance from

anybody including the defendants. It is stated that the

erstwhile land owners were also using the same entry

from time immemorial. Due to such continuous use

beyond the prescriptive period, the plaintiff claims to

have acquired easementary right over the pathway.

4. The grievance of the plaintiff is that the second

defendant in the process of repairing the old compound,

by rebuilding it has in fact demolished the old

compound wall and a new wall is built on the eastern

side of the suit property but leaving about 6 ft opening

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on the southern end towards the plaintiff’s property.

This was objected to by the plaintiff. Though a gate was

being attempted to be put up in the six ft wide gap, the

same has been prevented by the plaintiff and the gap

was left by the second defendant. In that regard, the

police complaints were also lodged on 17-09-2005 and

26.05.2006. Though the Police intervened and adviced

the Military officials against putting up the gate, they

are trying to put up the gate. The plaintiff further states

that on 06.08.2006, the second and third defendants

tried to put up a barbed wire fence on the southern side

of the suit property and posted number of Military

personnel with A.K.47 guns in order to prevent the

plaintiffs’ entry to the suit property. The plaintiff

however contends that they have successfully prevented

the illegal acts of the defendants. Hence, the plaintiffs

apprehend threat of dispossession. As such, the

plaintiffs claim for perpetual injunction against

interference with plaintiff’s possession, enjoyment and

mandatory injunction to remove the hollow brick wall

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bifurcating Schedule ‘A’ property from Government

land.

5. The defendants on being served with the suit

summons have appeared and filed their written

statement. The defendants contend that in the sale

deeds referred by the plaintiff it is indicated that

Defence/Government land is existing towards the

southern side of the property bearing No.41. It is

therefore contended that Government land does not

form part of property bearing No.41, Cubbon Road.

Reference is made to recital therein about permission

under agreement dated 01.09.1925. Though sale deed

copies are produced, the plan has not been produced.

In any event, the terms of the plaintiff’s sale deed does

not bind the Defence Department and does not confer

any right to the plaintiff’s over the Defence land. It is

denied that the property on the southern side is the

only road for ingress and egress from the suit schedule

property. The rough sketch is not reliable. The

agreement dated 01.09.1925 based on which right is

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being claimed has not been produced. The defendants

have referred to the letter dated 20.03.1982 from the

Deputy Commissioner (Revenue), City Corporation,

informing the defendants that the unauthorised

compound created in between property Nos.95 and 96,

Infantry Cross Road, has been demolished on

11.02.1982 and the land is kept open which can be

used as ‘thoroughfare’ by the owner of property No.41,

Cubbon Road. That establishes the existence of an

access from East of the plaintiff’s property. The

defendants have disputed the indication of the southern

boundary as Cubbon Road. It is averred that all this is

only an effort of the plaintiff to falsely claim the

Government land. Hence, the case of the plaintiff has

been denied in toto regarding the same being the only

entry to the property of the plaintiff. The defendants

have further contended that about 25-30 years ago an

effort was made by the plaintiff’s vendor to gain entry

through Military property by closing the eastern

boundary and that was cleared by the City Corporation.

Reference is also made to the property owned by

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plaintiff’s group which provides direct access to Infantry

Road. The Vendors of the plaintiff having filed a suit in

O.S.No.10445/82 claiming similar right and they having

failed is also submitted. The defendants have thereafter

traversed each of the averments of the plaintiff made

parawise and have sought for dismissal of the suit.

6. The Court below on noticing the rival

contentions has framed as many as four issues for its

consideration, which reads as hereunder:

(1) Whether the plaintiff proves that the southern

boundary of the schedule property is correct and

it is the only access to the schedule property?

(2) Whether the interference alleged is true?

(3) Whether the plaintiff is entitled to the

permanent injunction sought for?

(4) To what decree or order?

7. In order to discharge the burden cast on the

parties, the Director of the plaintiff examined himself as

PW-1 and examined three other witnesses as PW-2 to

PW-4 and relied upon the documents at Exhs.P1 to

P.24. The defendants examined one witness as DW-1

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and marked documents at Ex.D-1 and D-1 (a). The

Court below on analysing the materials and evidence

available on record has dismissed the suit by the

judgment and decree dated 19.12.2009. The plaintiff is

assailing the same in this appeal.

8. Sri. S.K.V. Chalapathy, learned senior counsel

appearing for the plaintiff at the outset submitted that

the plaintiff at this stage does not press regarding

easement of necessity. The suit is therefore for

protecting the easementary right by prescription having

used the same as a matter of right for more than thirty

years. Reference is made to Section 15 of Indian

Easements Act, 1882 (‘the Act’ for short) and Section 13

of Evidence Act. Though the property was being used

as ingress and egress based on the permission granted

under agreement dated 01.09.1925 and the earlier sale

deed dated 22.10.1948 wherein there is reference to the

permissive user of the approach road, the sale deed

dated 23.05.1969 under which Sri B.M.Gill purchased

the property does not refer to the permission.

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Therefore, when that was only the access and when the

earlier permissive user is admitted, the presumption is

that from 23.05.1969, it was being used as a matter of

right. Thereafter the said Sri. B.M.Gill has conveyed the

property by sale to his three daughters by deed dated

30.03.1970. The said property has thereafter been

purchased by the plaintiff in the year 1984. Hence,

when such user from 1969 was as a matter of right, the

same has resulted in prescriptive right in the year 1999.

There would be presumption of user due to human

conduct. The evidence would indicate such road and

gate was there and when the defendants have not

contended that they had permitted even thereafter, it

has to be presumed that the user was without

permission and as a matter of right. It is only in the

year 2006, the defendants attempted to construct the

wall and the plaintiff at that point approached the

Court. In reply to the argument of the learned senior

counsel for the defendants, it is further contended that

the pleading has to be liberally construed and a prayer

for declaration is not necessary as contended. A suit for

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injunction would suffice is the submission. Hence, he

prays for allowing the appeal and decreeing the suit.

9. Sri N Devhadas, learned senior counsel for the

defendants would seek to sustain the judgment passed

by the Court below. With reference to the pleading and

prayer, it is contended that the plaintiff should seek for

a declaration regarding easementary right without

which they are not entitled to maintain the suit. The

relief prayed is only injunction which can only be

granted as a consequential relief if they had succeeded

in seeking declaration. The right claimed from 1969 is

only a presumption of the plaintiff and there is

absolutely no evidence. When a prescriptive right by

way of easementary right is contended, not only the

declaration in that regard should be sought but there

should be sufficient pleading and proof. The plaintiffs

herein have not pleaded regarding the user of the

property as a matter of right nor has the same been

pleaded with regard to the predecessor’s user as a

matter of right. Hence, it is contended that in the

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nature of the case which was put forth before the trial

Court, the Court has considered the same in its correct

perspective and dismissed the suit which does not call

for interference.

10. In the light of the rival contentions, the

following questions arise for consideration in this

appeal:

I) Whether the plaintiffs in the instant case

could have sought for the injunction as

prayed without seeking for the relief of

declaration?

ii) Whether in the instant case, the plaintiffs

have successfully pleaded and proved the

use of the B-schedule property as a matter of

right for the prescriptive period?

iii) Has the Court below appreciated the

material keeping in view the nature of the

case put forth and arrived at an appropriate

conclusion?

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11. As noticed, since the plaintiffs’ case is

restricted to be one for prescriptive easmentary right as

provided under Section 15 of the Easements Act and not

for easement of necessity as pleaded, the provision

contained therein is required to be noticed. Section 15

of the Act reads as hereunder;

“15. Acquisition by prescription.- Where the

access and use of light or air to and for any building

have been peaceably enjoyed therewith, as an

easement, without interruption, and for twenty years,

and where support from one person’s land, or

things affixed thereto, has been peaceably received by

another person’s land subjected to artificial pressure,

or by things affixed thereto, as an easement, without

interruption, and for twenty years,

and where a right of way or any other easement

has been peaceably and openly enjoyed by any person

claiming title thereto, as an easement and as of right,

without interruption, and for twenty years,

the right to such access and use of light or air,

support or other easement shall be absolute.

Each of the said periods of twenty years shall be

taken to be a period ending within two years next

before the institution of the suit wherein the claim to

which such period relates is contested.

Explanation I.- xxxxxxxxxxxx

Explanation II.-xxxxxxxxxxxx

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Explanation III.- xxxxxxxxxxx

Explanation IV.-xxxxxxxxxxxx

When the property over which a right is claimed

under this section belongs to the [Government], this

section shall be read as if, for the words “twenty years”

the words [“thirty years”] were substituted.”

12. Hence, in the instant case, the plaintiffs are

required to satisfy the Court that they have pleaded and

established that they have peaceably and openly

enjoyed the right of way as an easement without

interruption and therefore they are entitled to claim

right thereto. In the instant case, the period of such

enjoyment should be shown to be for thirty years since

the property in question admittedly belongs to the

Government.

13. Though the plaint indicates that the pleading

is mainly that ‘B’ schedule property was being used as

the road by way of easement of necessity, the plaintiff

has also pleaded that they are using the entry from

South (Cubbon Road) side for more than 22 years from

the date of purchase without any let or hindrance from

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anybody much less the defendants and was being used

by the erstwhile landowners from the time immemorial.

Anyhow the claim in this appeal has been argued as a

claim for prescriptive easementary right under Section

15 of the Act. Hence, the primary contention as to

whether the relief of injunction could be granted without

seeking for declaration supported by pleading and proof

needs to be decided at the outset.

14. The learned senior counsel for the defendants

has cited the decision of a learned Single Judge of this

Court in the case D Ramanatha Gupta –vs-

S. Razaack (AIR 1982 Kar 314) wherein it is held as

follows:

“10. In Siti Kantapal v. Radha Gobinda Sen (AIR

1929 Cal 542). A Division Bench of the Calcutta High

Court has further made the proposition lucid. In the

course of the judgment this is what the High Court

has ruled:

“It has been authoritatively held that title to

easement is not complete merely upon the effluxion of

the period mentioned in the statute viz., 20 years and

that however long the period of actual enjoyment may

be, no absolute or indefeasible right can be acquired

until the right is brought in question in some suit, and

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until it is so brought in question, the right is inchoate

only and in order to establish it when brought in

question, the enjoyment relied on, must be an

enjoyment for 20 years up to within 2 years of the

institution of the suit.”

11. It is, therefore, necessary that in a suit for

injunction based on a prescriptive easement right, the

plaintiff should seek for a declaration from the Court

that he has so acquired the prescriptive right of

easement. In the present suit, however, the plaintiff

has not sought for declaration that he has acquired

prescriptive right of easement with regard to the inflow

of air and light through the windows and ventilators.

Without more, therefore, the suit is liable to be

dismissed. The Courts below have obviously missed

this legal aspect.”

The point that had been raised for consideration in that

case before arriving at the above conclusion is,

“Whether the suit for mere injunction is

maintainable, when the same is based on the

alleged prescriptive right, without a prayer for

declaration that the plaintiff acquired such

prescriptive right?”

15. The learned senior counsel for the plaintiff on

the other hand cited the decision of another

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learned Single Judge of this Court in the case of

Puttegowda alias Ajjegowda –vs- Ramegowda (1996

(5) KLJ 306). It is contended that in the said case the

learned Judge has declared that a suit for bare

injunction without seeking the relief of declaration in

respect of easementary right is maintainable. It is

further pointed out that while arriving at such

conclusion, the case of Ramanatha Gupta (supra)

relied on by the learned senior counsel for the defendant

has been considered and stated to be per incuriam and

sub silentio. Hence, it is contended that in the instant

case the suit for injunction even in the absence of

seeking for the relief of declaration is maintainable.

16. I have carefully perused both the above cited

decisions. The position which is clear is that the

decision in the case of Ramanatha Gupta (supra) is

rendered while considering the case of easementary

right of prescription under Section 15 of the Act, while

the case of Puttegowda alias Ajjegowda (supra) had

arisen on the basis of easement of necessity as provided

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under Section 13 of the Act, though while remanding

the case for fresh consideration, the learned Judge has

indicated that an issue be raised with regard to

prescriptive right also. However, the learned Judge has

failed to notice the marked difference between the right

available under the said provisions namely Section 13

and Section 15 of the Act which has to satisfy different

requirement in those situations. The reading of Section

15 would make it clear that an absolute right would be

available over the property belonging to another if the

requirements contemplated therein are satisfied which

is akin to claiming right by adverse possession. If that

be so, there should be a prayer to grant a declaration in

that regard and in aid of such prayer, there should be

pleading and proof.

17. In fact it would be appropriate to refer to the

decision of the Hon’ble Supreme Court relied on by the

learned senior counsel for the defendants, rendered in

the case of Bachhaj Nahar –vs- Nilima Mandal and

another [(2008) 17 SCC 491] wherein the Hon’ble

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Court keeping in view the provisions of the Easements

Act, Specific Relief Act and the Civil Procedure Code has

summarised the need for appropriate pleadings and

prayer, so that the relevant issues could be framed and

the matter could be considered in that regard based on

the evidence. Para 13 of the said decision reads as

hereunder;

13. The object of issues is to identify from the

pleadings the question or points required to be decided

by the courts so as to enable parties to let in evidence

thereon. When the facts necessary to make out a

particular claim, or to seek a particular relief, are not

found in the plaint, the court cannot focus the

attention of the parties, or its own attention on that

claim or relief, by framing an appropriate issue. As a

result the defendant does not get an opportunity to

place the facts and contentions necessary to repudiate

or challenge such a claim or relief. Therefore, the

court cannot, on finding that the plaintiff has not

made out the case put forth by him, grant some other

relief. The question before a court is not whether there

is some material on the basis of which some relief can

be granted. The question is whether any relief can be

granted, when the defendant had no opportunity to

show that the relief proposed by the court could not be

granted. When there is no prayer for a particular relief

and no pleadings to support such a relief, and when

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the defendant has no opportunity to resist or oppose

such a relief, if the court considers and grants such a

relief, it will lead to miscarriage of justice. Thus it is

said that no amount of evidence, on a plea that is not

put forward in the pleadings, can be looked into to

grant any relief.

(emphasis supplied)

18. If the above aspects are kept in perspective

and considered in the background of the opinion

expressed by the Hon'ble Supreme Court, the view

taken in Ramanath Gupta’s case (supra) is the correct

view. In fact the decision in Puttegowda alias

Ajjegowda is hit by doctrine of sub silentio as the view

therein to hold Ramanath Gupta’s case as per

incuriam is not taken by keeping in view the different set

of requirement under the two different provisions. In

any event such view taken is contrary to the view

expressed by the Hon'ble Supreme Court. Hence, I am

of the considered opinion that when the plaintiff claims

easementary right over another’s property by way of

prescriptive right and seeks protection of such right, it

is a requirement that the relief of declaration should be

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prayed with pleadings to support such prayer and

consequently seek protection by injunction.

19. In that backdrop, the facts in the instant case

would reveal that except for the stray averment in the

plaint, as noticed above, to contend that the passage

was being used by the plaintiff for the last 22 years after

purchase and by their predecessors from time

immemorial, the other averments point to claim of

easements of necessity and that too in the nature by

contending that there is an attempt to close the passage

and therefore to injunct the defendants. In that view,

the issues framed in the instant suit which has been

extracted above would also disclose to that effect and

there is no indication with regard to the matter having

been considered in the direction of deciding the

prescriptive right. Hence, the arguments addressed by

the learned senior counsel for the plaintiff with

reference to agreement of 01.09.1925 about permissive

user and thereafter the sale deed dated 23.05.1969 of

Sri B.M. Gill containing no stipulation and therefore,

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the user was as a matter of right and the decisions

relied upon would not arise for consideration in a First

Appeal when there is no foundation laid in the suit and

the relief of declaration is not sought. In fact the nature

of the discussion made by the trial Court in the instant

case and the observation in paragraph 31 of the

impugned judgment itself will disclose that the

foundation laid was not for a declaration of prescriptive

right and seeking such declaration was not attempted.

Hence, if such right is granted based on the

presumption as sought to be made out, but, in the

absence of there being evidence for actual user of the

land, as a matter of right, it would certainly prejudice

the case of the defendant. When I have noticed the later

decision of the Hon’ble Supreme Court and also the

nature of the pleadings in the instant case based on

which the issues had been raised and parties had gone

to trial, the decision in the case of Rama Sarup Gupta

(dead) by L.Rs.–vs- Bishun Narain Inter College &

Others (AIR 1987 SC 1242) relied on by the learned

senior counsel for the plaintiff would also not be of

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assistance. At best the plaintiff can only avail their

remedy in accordance with law.

20. In that view, the points No. (i) and (ii) raised

above is answered in the negative holding that in the

instant facts, the relief of injunction could not have

been sought without seeking for the relief of declaration

and the pleading and proof is presently insufficient.

The point No. (iii) is therefore answered in the

affirmative as the Court below has not committed any

error on the available materials on record.

Accordingly the appeal being devoid of merit is

dismissed. In the facts and circumstances the parties

shall bear their own costs.

Sd/- JUDGE

Akc/bms