- 1 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1810 OF 2019 (DEC/INJ) BETWEEN: 1. SRI.D.R. GOPINATH S/O. LATE D.P. RAMAKRISHNA REDDY AGED ABOUT 55 YEARS, R/AT NO.442, 10TH CROSS, 2ND PHASE, GIRINAGAR, BANGALORE-560 085. 2. DR.B.V.SUDHAKAR REDDY S/O. VENUGOPALA REDDY AGED ABOUT 51 YEARS, R/AT HARSHITHA APARTMENTS, PATHANJALI NAGAR, PAVAGADA, TUMKUR DISTRICT. 3. SRI. E. THIMMA REDDY S/O. LATE EPPETI VENKATARAMANAPPA AGED ABOUT 68 YEARS, R/AT PATHANJALI NAGAR, PAVAGADA TOWN, TUMKUR DISTRICT. THE APELLANTS NO.2 AND 3 ARE REPTD. BY THEIR GPA HOLDER D.R. GOPINATH, THE APPLLANT.NO.1. 4. SRI.R. MOHAN REDDY S/O. R. PEDDA NANJI REDDY AGED ABOUT 43 YEARS, R/AT NO.135, MUNILAKSHMAMA BUILDING, KASINAGAR, AMRUTHA HALLI, BANGALORE-560 092. 5. M.A. SHIVAIAH S/O. ANJANAPPA AGED ABOUT 58 YEARS, LAKSHMINARASIMHA KRUPA, Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 R/AT SNEHA SOURABHA, NEAR CHETHANA SCHOOL, B.H. ROAD, TUMKUR – 560 862. REPTD. BY HIS GPA HOLDER R. MOHAN REDDY, THE APPLNT.NO.4 …APPELLANTS (BY SRI. MALLA REDDY B V. AND SRI. CHANDRASHEKAR C., ADVOCATES) AND: 1. M/S RSJ MEGHA HOTELS PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT AND HAVING ITS OFFICE AT NO.3, RAJ BHAVAN ROAD, BANGALORE-560 001. AND REPRESENTED BY ITS DIRECTOR MRS. REKHA.R JANNU. 2. SMT. REKHA R. JANNU W/O. RAMESH SRINIVAS JANNU AGED ABOUT 59 YEARS, 3. RAMESH S. JANNU S/O. LATE SRINIVAS V. JANNU AGED ABOUT 60 YEARS, BOTH ARE R/AT NO.3, RAJ BHAVAN ROAD, BANGALORE-560 001. …RESPONDENTS (NOTICE TO RESPONDENTS HELD SUFFICIENT VIDE ORDER DATED: 07.02.2025) THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.06.2019 PASSED IN O.S.NO.6605/2014 ON THE FILE OF THE XXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR - 3 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 ORAL JUDGMENT This appeal by the plaintiffs in O.S.No.6605/2014 is directed against the impugned judgment and decree dated 27.06.2019 passed by the XXIV Additional City Civil and Sessions Judge, Bengaluru City (CCH-6) (for short “the Trial Court”), whereby the said suit filed by the appellants-plaintiffs against the respondents- defendants for declaration, perpetual injunction and other reliefs, in relation to the suit schedule immovable property was dismissed by the Trial Court. 2. The brief facts giving raise to the present appeal are as under: The appellants-plaintiffs instituted the aforesaid suit for declaration of their easementary rights in respect of the suit ‘B’ schedule property for the purpose of ingress and egress to and from schedule ‘A’ property from 80 feet vide RCDP BDA road abutting to the eastern boundary and for perpetual injunction restraining the defendants from interfering with easementary rights of plaintiff and other reliefs. The suit ‘A’ schedule property was claimed to be land bearing Sy.No.69/6 measuring 29 guntas situated at Sadaramangala village, Krishnarajapuram Hobli, - 4 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 Bengaluru East Taluk (converted land) having specific boundary with the eastern boundary, land bearing Sy.No.69/7. It was contended that the only means of ingress and egress was through ‘B’ schedule property which was a portion of the adjacent eastern property bearing Sy.No.69/7 measuring East to West 115 feet and North to South 40 feet, which was used for the purpose of access as well as ingress and egress to the ‘A’ schedule property and other adjoining property, which has been in existence right from the beginning and as such, since the respondents-defendants prevented from owning, possessing and enjoyment of ‘A’ schedule property and right of ingress and egress of right of way to the ‘A’ schedule property through ‘B’ schedule property, the appellants instituted the aforesaid suit against the respondents-defendants seeking the aforesaid reliefs. 3. The respondents-defendants entered appearance in the suit and filed their written statement disputing and denying the claim of the plaintiff over the ‘A’ schedule property. However, the respondents-defendants admitted that the appellants-plaintiffs were owners of Sy.No.69/6 and that the defendants-respondents were owners of the adjacent/abutting property bearing Sy.No.69/7. It - 5 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 was however contended that the appellants-plaintiffs did not have any Right of Easement over the ‘B’ schedule property and as such, the suit was liable to be dismissed. 4. On the basis of the aforesaid pleadings of the parties, the Trial Court framed the following issues: “1. Whether the plaintiffs prove that they have got easementary right by way of necessity on Schedule ‘B’ property as contended by them? 2. Whether defendants prove that plaintiffs’ schedule A property has an alternative approach road? 3. Whether plaintiffs are entitled for reliefs of declaration as prayed? 4. Whether plaintiffs are entitled for relief of injunction as prayed? 5. What order or decree? 5. During the course of trial, the power of attorney hold of plaintiff No.1 was examined as PW.1 and one witness as PW.2 and got marked documentary evidence as Exs.P-1 to 47. On behalf of the defendants, the authorised representative of defendant No.1 was examined as DW.1 and got marked documentary evidence as Exs.D-1 and 2. - 6 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 6. The Trial Court proceeded to hear the parties and dismissed the suit of the plaintiff by passing the impugned judgment and decree, which is assailed in the present appeal. 7. Heard learned counsel for the appellants and perused the material on record. 8. The respondents-defendants having been served with notice of the appeal, they have chosen to remain unrepresented and have not contested the appeal. 9. The following points arise for my consideration in this appeal: "(i) Whether the Trial Court was justified in coming the conclusion that the appellants-plaintiffs were owners of ‘A’ schedule property, who were not entitled to easement right over the ‘B’ schedule property? (ii) Whether the impugned judgment and decree warrants interference by this Court? Regarding Point Nos.1 and 2 : 10. Since both points are interlinked with each other, they are taken up together for consideration. - 7 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 11. A perusal of the material on record will indicate that Sy.No.69/6 claimed by the appellants and Sy.No.69/7 claimed by the respondents were originally the part and parcel of Sy.No.69/2 before they were subsequently divided into Sy.Nos.69/6 and 69/7. It is also an undisputed fact that while plaint ‘A’ schedule property bearing Sy.No.69/6 is situated to the west of the plaint ‘B’ schedule property, plaint ‘B’ schedule property comprises of disputed road situated to the east of plaint ‘A’ schedule property. In the impugned judgment and decree, the Trial Court came to the conclusion that the appellant had not established their Right of Easement over the plaint ‘B’ schedule property on the ground that it was not proved by them that the only way of ingress and egress to the ‘A’ schedule property was through the ‘B’ schedule property. Under these circumstances, this Court passed the following order on 25.03.2025, appointing a Court Commissioner to conduct local inspection of the ‘A’ schedule property and ‘B’ schedule property and submit report in this regard: “Heard learned counsel for the appellants and perused the material on record. - 8 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 Since the Trial Court Records are received and paper books have been filed, the matter was taken up for final disposal. During the course of his arguments, learned counsel for the appellants submitted that apart from ‘B’ schedule property situated in Sy.No.69/7, measuring East-West 115 Ft and North- South 40 Ft, situated at Sadaramangala Village, Krishnarajapura Hobli, Bengaluru East Taluk, the appellant who is the owner in possession and enjoyment of Sy.No.69/6 does not have any other access to his property except the right of way by way of easement of necessity through ‘B’ schedule property and a Court Commissioner may be appointed to conduct local inspection of ‘A’ and ‘B’ schedule properties and submit a report in this regard. The said submission is placed on record. In order to elucidate the issue in controversy between the parties, I deem it just and appropriate to appoint the following person as Court Commissioner to conduct local inspection and submit his report in this regard on or before the next date of hearing: “Sri. Nagesh B.A, Advocate, Enrolment No.3601/2006” The Court Commissioner shall conduct local inspection of plaint ‘A’ and ‘B’ schedule properties on 29.03.2025 at 11:00 a.m. in presence of the appellants. Liberty is reserved in favour of the appellants to submit Memo of Instructions to the Court Commissioner. Re-list on 07.04.2025 at 2:30 p.m., for further hearing. - 9 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 Interim order granted earlier is extended until further orders.” 12. In pursuance of the aforesaid order, the Court Commissioner conducted local inspection and submitted a report as under: “1. As per the order dated: 25.03.2025 passed by the Hon’ble High court of Karnataka, in RFA No.1810/2019,I have visited the Schedule-A and B properties as shown by the 1st Appellant D.R.Gopinath and his counsel Sri.B.V.Malla Reddy for the purpose of local inspection and to report as to the availability or otherwise of any other alternative access road to Schedule-A property other than Schedule-B property. 2. I have visited the Schedule-A and B properties, at 10:50AM on 29.03.2025, after notifying the Appellant’s Advocate Sri.B.V. Malla Reddy. Among the Appellants, D.R.Gopinath the 1st Appellant was present along with his Advocate Sri. B.V.Malla Reddy. 3. I have travelled through Hoodi- Whitefield Main Road, took left turn at the entrance of Prestige Shanthinikethan Complex, to the BDA RCDP 80 Feet Road and travelled till the end of the road at the Western boundary of Sy No. 70 of Sadaramangala Village. From there, through the Schedule-B Property, I reached the Schedule-A property. 4. On local inspection, it is found that the Southern boundary of Schedule-A and B properties is the village boundary of Hoodi and Sadaramangala Village and the boundary runs East to west and crosses a storm water drain - 10 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 at a distance of about 250 Meters from the Western edge of the Schedule-A property. On the Northern side of the boundary, Sy No. 69 and 68 of Sadaramangala Village and on the Southern side of the boundary, Sy No. 128,127 and 121 of Hoodi village are located. These properties are private properties. I have travelled in the vacant places around the Schedule- A property. At a distance of about 300 meters a Railway line running from East to West is located and there is no railway level crossing. Other than through the Schedule B Property, there is no alternative way/ Road accessible from the Schedule-A Property, to any public Road. All the lands around the Schedule- A Property are private Lands. The Eastern end of the Schedule- B property is joining the BDAs RCDP 80 feet road running in Sy no. 70 of Sadaramangala connecting the Hoodi- Whitefield Main Road. Except this, there is no other public Road near the Schedule-A Property. It is found that a mud road in the form of Kuchha road has been formed in the form of kuccha road has been formed in the Scheduled-B property connecting the Schedule-A property with the BDA RCDP 80 feet road at the Eastern boundary of Schedule-B property. Except this Kuccha road in Schedule-B property . Except this Kuccha road in Schedule-B property , there is no other alternative road or access to the Schedule-A property. People are using this to access their private properties nearby. 5) I have drawn a Mahazer at the Schedule properties and it is duly signed by the 1st Appellant D.R.Gopinath and his Advocate SRI.B.V.Malla Reddy and also witnesses. The Mahazer is produced herewith. - 11 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 6) I have taken the photographs of the Schedule-B property, schedule-A property, junctions of schedule-B property and BDA RCDP 80feet Road and produced the same herewith. As per the order dtd: 25.03.2025 passed in RFA No.1810/2019, I am herewith submitting commissioner’s Report as above. I have received a sum of Rs.7,000/- towards Commissioner fee paid by D.R.Gopinath the 1st Appellant. CONCLUSION Except the Schedule-B property, there is no other alternative road or access to access the Schedule-A property through a Public Road from any where nearby.” 13. Along with the report of the Court Commissioner, he has produced mahazar, photographs/google photographs etc., all of which clearly establishes that the only way/access to ‘A’ schedule property bearing Sy.No.69/6 is through the road situated through Sy.No.69/7, which is delineated/described as ‘B’ schedule property as is clear from the contents of the aforesaid documents. It is also pertaining to note that the other material on record comprising of the unimpeached, oral evidence of PWs.1 and 2 coupled with the documentary evidence adduced by the appellants at Exs.P-1 to 47, which have not been considered by the Trial - 12 - NC: 2025:KHC:14927 RFA No. 1810 of 2019 Court in their proper perspective as well as the fact that it is sufficient to come to the conclusion that the appellant has established easement of necessity over the ‘B’ schedule property, which has not been properly considered by the Trial Court in the impugned judgment and decree, which deserves to be set aside. Point Nos.(i) and (ii) are answered accordingly. 14. In the result, I pass the following: ORDER i) The Appeal is allowed. ii) The impugned judgment and decree dated 27.06.2019 passed in O.S.No.6605/2014 passed by the XXIV Additional City Civil and Sessions Judge (CCH-6), Bengaluru City, is hereby set aside. iii) The suit of the appellants-plaintiffs is decreed as prayed for by them against the respondents-defendants. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC List No.: 2 Sl No.: 6