JUDGMENT
V. Gopala Gowda, J.
1. The appellant was the plaintiff and respondent was the defendant in the Trial Court. For the sake of convenience, the parties are referred to as per their rank in the Trial Court.
2. The plaintiff filed the suit in O.S. No. 86 of 1990 for declaration that he is using prescriptive right over the portion marked as EFIJ in the hand sketch produced and for permanent injunction against the defendant. The defendant filed written statement resisting the suit and denying the case pleaded by the plaintiff. According to him, the hand sketch is not correct and there is no road in the portion as claimed by the plaintiff. On the basis of the pleadings, the Trial Court framed issues. Both the parties led evidence by examining witnesses and producing documents. On appreciation of the material on record, the Trial Court by its judgment dated 23-11-1996 decreed the suit directing the defendant to keep open 4 feet width way in the portion EFIJ to have free access to the plaintiff to reach the main road. Defendant was also restrained from causing any obstruction in the said portion. Against the said judgment, the defendant filed First appeal in R.A. No. 86 of 1996. The First Appellate Court by its judgment dated 4-9-1998 allowed the appeal, set aside the judgment and decree of the Trial Court and dismissed the suit. Aggrieved by the same, the plaintiff has preferred this second appeal.
3. This appeal was admitted to consider the following substantial question of law.-
Whether the First Appellate Court is right in setting aside the order of the Trial Court without proper assessment of the evidence including the Commissioner’s report?
4. Heard the learned Counsels for the parties and perused the judgments and decrees of the Courts below.
5. The Trial Court considered the evidence adduced on behalf of both the parties and at the beginning of paragraph 15 it has held as under:
“On going through the plaint averments and evidence of witnesses, it is clear that there is EFIJ area i.e., open space and it was being used as a way for the plaintiff and his previous owner since time immemorial”.
Having held so, at the end of same paragraph it has been held as under:
“But both parties have not produced any material document to show that EFIJ portion is part of public road. Therefore, in my
opinion EFIJ portion i.e., open space is not part of public road. Hence, Issue No. 1 is held partly affirmative”.
It is thus clear that though the portion EFIJ is not a public road, the plaintiff and his vendor were using it as way since time immemorial.
6. The Trial Court also considered the report of the Court Commissioner and came to the conclusion that the defendant has caused obstruction on the way. The Commissioner has clearly stated that the plaintiff has to pass through the way in question only and there is no other way for carrying the agricultural implements. Thus, the Trial Court rightly held that plaintiff established prescriptive easementary right. Consequently, the suit was decreed.
7. The First Appellate Court grossly erred in reversing the judgment of the Trial Court. It has considered the case in a wrong approach by stating in paragraph 20 as under;
“When that is a case of the plaintiff, naturally it is a public road only for which the local body will be the owner and it will be required to maintain the road in a proper way”.
The First Appellate Court instead of considering whether the plaintiff has got easementary right over the portion EFIJ, has wrongly gone to consider the ownership over the said area and the duty to be discharged by the local body. That was not at all the issue involved in the case.
8. The First Appellate Court further erred in observing at the end of paragraph 20 as under:
“When the disputed portion is a part of the road there is no dominant tenement or servient tenement, both are absent and present. Therefore, the plaintiff as such cannot claim the right of easement over such road”.
The First Appellate Court assumed that EFIJ portion is a part of public road. It is not the case of the plaintiff or P.W. 3, the vendor of plaintiff, that it is a public road. It is the case of the plaintiff and his vendor that the said portion is an open space which was being used as way. If it was a public road, naturally the others would have raised objection when the defendant caused obstruction over the same. Except plaintiff, no other villager has got any objection in this regard. This presupposes that plaintiff has rightly asserted his easementary right over the area in question. That being the position, the First Appellate Court was not right in reversing the judgment of the Trial Court.
9. The First Appellate Court also referred to the evidence of the defendant at paragraph 17. The admission of defendant is to the following effect:
“According to the defendant 1 the plaintiff and his previous owner were using the EFIJ road only. D.W. 2 is a resident of Sulibhavi Village and he also support the version of D.W. 1”.
It is crystal-clear from the above that the defendant himself admitted the usage of EFIJ by the plaintiff and his vendor. The same is supported
by the evidence of D.W. 2. In the light of this admitted fact, the First Appellate Court ought not to have come to the conclusion that the plaintiff has no right over the portion EFIJ.
10. In view of the above discussion, it has to be held that the judgment and decree of the Trial Court were perfect and that of the First Appellate Court are contrary to the admitted facts and the material placed on record and therefore this Court holds that the substantial question of law would arise in the appeal and answered in favour of the plaintiff. It follows that the judgment of the First Appellate Court cannot be sustained and liable to be set aside and the Trial Court judgment and decree have to be restored.
11. Accordingly, the appeal is allowed. The judgment and decree of the First Appellate Court are set aside and the judgment and decree of the Trial Court are restored.
V. Gopala Gowda, J.
28-2-2002
ORDERS ON “FOR BEING SPOKEN TO”
At the request of the learned Counsel for the defendant, the matter is listed for being spoken today.
2.1 have heard the learned Counsel for the defendant with reference to the pleadings and the evidence on record and the findings recorded by the First Appellate Court in justification of the judgment and decree passed by it. The learned Counsel submitted that the First Appellate Court was right in setting aside the judgment and decree of the Trial Court and the same is on proper appreciation of the facts and evidence on record. He further submitted that there is no substantial question of law that has arisen in this case to consider and answer the same in favour of the plaintiff.
3. The learned Counsel has placed reliance upon the decision of the Supreme Court in the case of Narayana Shetty and Anr. v. B. Byrappa, 1968(l)Mys. L.J. 569 and submitted that there must be pleading in the plaint in conformity with Section 15 of the Easements Act, 1882; that by perusal of the pleadings, there is no such averments; that this important aspect of the matter bas been taken into consideration by the First Appellate Court with reference to the judgment of the Calcutta High Court referred to at paragraph 21 of the impugned judgment. I have considered the said submission and I am satisfied that the evidence of P.Ws. 1 and 3, D.Ws. 2 and 1 that the road in question is made use of by the plaintiff and his predecessor-in-title from time immemorial. In view of this positive evidence on record, the reliance placed upon the judgment referred to supra, does not render any assistance to the case of the defendant. In this view of the matter, the judgment dictated by me on 22-2-2002 remains unchanged.