- 1 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA REGULAR SECOND APPEAL NO. 1376 OF 2009 (DEC/INJ) BETWEEN: 1. KARIYAPPALA SIDDALNIGAPPA S/O SANNASIDDAPPA AGED ABOUT 41 YEARS R/O HUNASIKATTI VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT (PRESENT R/AT QUARTERS NO.24/C, TIP, 2ND YELAHANKA TOWN, LAST BUST STOP BANGALORE - 560 064 2. KANCHAPURADA BASAPPA S/O SIDDAPPA DEAD BY LR'S 2(A) SMT. GOURAMMA W/O LATE KENCHAPURADA BASAPPA AGED ABOUT 60 YEARS R/AT HUNASIKATTI VILLAGE HARAPANAHALLI TALUK BELLARY DIST. 2(B) SRI. B. BASAVARAJ S/O LATE KENCHAPURADA BASAPPA AGED ABOUT 42 YEARS R/AT HUNASIKATTI VILLAGE HARAPANAHALLI TALUK BELLARY DIST. 2(C) SRI. B. PRAKASH S/O LATE KENCHAPURADA BASAPPA AGED ABOUT 39 YEARS R/AT HUNASIKATTI VILLAGE HARAPANAHALLI TALUK BELLARY DIST. Digitally signed by NANDINI B G Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 2(D) SRI. B. RAVIKUMAR S/O LATE KENCHAPURADA BASAPPA AGED ABOUT 60 YEARS R/AT HUNASIKATTI VILLAGE HARAPANAHALLI TALUK BELLARY DIST. 3. KORI MARULLASIDAPPA S/O MAHADEVAPPA AGED ABOUT 50 YEARS AGRICULTURIST, R/O HUNASIKATTI VILLAGE HARAPANAHALLI TALUK DAVANAGERE DIST. …APPELLANTS (BY SRI. SHRIDHAR N. HEGDE, ADVOCATE FOR A/W SMT. RADHA V.D., ADVOCATE) AND: KARIYAPPALA PATRIBASAPPA S/O DODDASIDDAPPA AGED ABUT 59 YEARS AGRICULTURIST R/O HUNASIKATTI VILLAGE HARAPANAHALLI TALUK DAVANAGERE DIST. …RESPONDENT (BY SRI. SANTHOSH .R. NELKUDRI, ADVOCATE) THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DTD 27.8.2009 PASSED IN R.A.NO.18/2009 ON THE FILE THE CIVIL JUDGE (SR.DN) & JMFC., HARAPANAHALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 25.8.2006 PASSED IN O.S.NO. 169/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., HARAPANAHALLI. THIS RSA, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA - 3 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 ORAL JUDGMENT The defendant in OS.No.169/2001 on the file of the learned Civil Judge (Jr.Dn.) and JMFC, Harapanahalli is impugning the judgment and decree dated 27.08.2009 passed in RA No.18/2009 on the file of the learned Civil Judge (Sr.Dn.), Harapanahalli, allowing the appeal, setting aside the judgment and decree passed by the Trial Court and decreeing the suit of the plaintiff declaring that the plaintiff has right of way over the suit 'ABCDEFGH' cart-road and restraining the defendants from causing any obstructions or interference in the use or enjoyment of road by the plaintiff. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. The facts of the case in brief are that the plaintiff has filed the suit OS.No.169/2001 before the Trial Court against defendant Nos.1 to 3 seeking to declare that he is having right of way over 'ABCDEFGH' as shown in the plaint sketch and for permanent injunction restraining the defendants from causing obstructions from passing through the said pathway. It is contended by the plaintiff that a cart road is - 4 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 running through Sy.No.45-A, 45-B, 45-C, 47 and 46-A in between the boundaries and it touches Sy.No.46-B belonging to plaintiff, as shown in the plaint sketch. 4. It is contended that the plaintiff and defendant No.1 are cousins. Plaintiff is the owner of Sy.No.46-B situated in a Anajigeri village, Arasikere Hobli, Harapanahalli Taluk. Defendant No.1 is the owner of Sy.No.46-A and defendant No.3 is the owner of Sy.No.45-A and 45-B. The plaintiff and defendant Nos.1 and 3 were using this cart-road for the enjoyment of their respective lands. It is stated that the land in Sy.No.46-B belonging to plaintiff was standing in the name of his father K.Siddappa. He expired about 10 years earlier to filing of the suit. During his life time he was cultivating the land personally and was using the cart-road without any obstruction. There are no other alternative way to reach the plaintiff's land. Therefore, it is contended that initially K.Siddappa, the father of plaintiff and after his death, the plaintiff was continuously, peacefully and without interruption using cart-road for more than 21 years. - 5 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 5. It is contended that defendant No.2 is superior to defendant No.1 in politics and defendant Nos.1 to 3 colluding with one another, started causing obstruction to plaintiff for use of cart-road, whenever the plaintiff used to take the cart or oxen or the agricultural implements. Therefore, cause of action for the suit arose and plaintiff filed the suit seeking declaration regarding his right to use the cart road shown as 'ABCDEFGH' in the plaint sketch and for permanent injunction against the defendants from obstructing the plaintiff from using the same. 6. Defendant No.1 filed the written statement denying the contentions taken by the plaintiff in the plaint. Defendant No.1 admitted the situation of lands as stated by plaintiff in the plaint, but denied existence of a any cart-road shown as 'ABCDEFGH'. Defendant No.1 admitted that plaintiff is his cousin. But denied that neighbouring land owners were enjoying the cart-road to reach their respective lands and for better enjoyment of the same. 7. Defendant No.1 admitted that Sy.No.46-B belonging to plaintiff was standing in the name of his father K.Siddappa and he expired about 10 years back. But denied - 6 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 that he ever enjoyed the cart-road, now referred to by the plaintiff. It is denied that the plaintiff is having any easementary right much less easement of necessity over any piece of land. The cause of action alleged by the plaintiff is also denied. 8. It is contended that Sy.No.66 and 60 situated at Hunasikatti village is having a way, which leads from Sy.No.59 and passes through Sy.Nos.47, 46, 43, 34 and 35 to reach the Daggibasapura village. This pathway is shown in the village map but there is no way as shown in the plaint sketch as 'ABCDEFGH'. There is another way to reach plaintiff's land, which is in existence which passes through the land of Smt. Korinagamma, Maralusiddappa of Daggibasapura, Maralusiddappa of Kambtahalli, Hosur Nagappa. This pathway connects the way which passes through Sy.No.59, 47, 46 and 43. It is contended that plaintiff has approached the Court with false averments claiming the cart-road, which was never in existence. Therefore, defendant No.1 prayed for dismissal of the suit. - 7 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 9. Defendant Nos.2 and 3 have filed their common written statement denying the contentions taken by the plaintiff, denying the existence of cart-road as alleged and taken the same contention as taken by defendant No.1 and prayed for dismissal of the suit. 10. On the basis of these pleadings, following issues came to be framed. a. Whether Plaintiffs prove that they are using the suit Way continuously without anybody's obstruction, since the time immemorial? b. Whether Plaintiffs prove that they have acquired right over the suit Way? c. Whether Plaintiffs prove that alleged obstruction by the defendants as pleaded in the Plaint? d. Whether defendants prove the alternative way as pleaded in W.S.Additinal Plea? e. Whether defendants prove that they entitled for the compensating cost? f. What order or decree? - 8 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 11. Plaintiff examined PWs.1 to 4 and got marked Exs.P1 to 13 in support of his contention. Defendants got examined DWs.1 to 3 and got marked Exs.D1 to 9 in support of their defence. The Trial Court after taking into consideration all these materials on record answered Issue Nos.1 to 5 in the negative and dismissed the suit of the plaintiff. Being aggrieved by the same, plaintiff has preferred the appeal in RA No.18/2009 (old No.47/2006). 12. The First Appellate Court on re-appreciation of the materials on record allowed the appeal, set aside the impugned judgment and decree passed by the Trial Court and decreed the suit of the plaintiff, declaring that plaintiff has right of way over the suit cart-road marked as 'ABCDEFGH' and defendants were restrained from causing any obstructions or interference with the use and enjoyment of the cart-road by the plaintiff. Being aggrieved by the same, defendant Nos.1 to 3 have preferred these appeals. 13. This Court vide order dated 05.04.2010 framed following substantial of law. - 9 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 (i) Whether the judgment and decree of the First Appellate Court is perverse in misreading the plaint averments? (ii) Whether the judgment and decree of the First Appellate Court is erroneous in misapplying the evidence on record with reference to plaint averments? 14. Heard Sri. Shridhar N Hegde, learned counsel for appellants along with Smt.Radha V.D., learned counsel for the appellant and Sri. Santhosh R Nelkudri, learned counsel for respondent. Perused the materials on record. 15. Learned counsel for the appellants/defendants contended that prayer made by the plaintiff is very vague and lacks material particulars. It is not made clear as to whether the plaintiff is claiming right over the cart way by way of prescription or necessity. None of the ingredients of either Section 13 or Section 15 of the Easement Act is pleaded, nor proved by the plaintiff. Defendants have filed written statement and also proved existence of alternative way to plaintiff, which is shown in the village map. The Trial Court on proper appreciation of the materials on record rightly dismissed the suit of the plaintiff. The First Appellate Court committed an - 10 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 error in re-appreciation of the materials on record and decreeing the suit of the plaintiff. 16. Learned counsel contended that land owners of adjacent land bearing Sy.No.45-A, 45-B and 47 are not arrayed as parties to the suit. In their absence, plaintiff is not entitled for any declaration. 17. Learned counsel for the appellants drawn the attention of the Court to the village map marked as Exs.P13 and Ex.D9 to contend that the dotted line passing through Sy.No.46 and 47 is the pathway used by the neighboring land owners from time immemorial. Plaintiff has never denied the existence of said alternative way, which runs through Sy.No.46, 43 and 34 starting from the cart-road passing through Sy.No.59 in the village map produced by plaintiff and defendant marked as Ex.P13 and Ex.D9 respectively. There is no pathway as claimed by the plaintiff. The First Appellate Court ignored the fact that already there existed a pathway as shown in the village map. Under such circumstances, plaintiff was not entitled for any declaration or for permanent injunction. - 11 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 18. It is contended that, the First Appellate Court even though agreed with the finding of the Trial Court that there existed a pathway running through Sy.No.46 shown in the dotted line in Ex.P13 and Ex.D9, erroneously held that it may not be a cart way, even though there is no evidence to that effect. The First Appellate Court committed an error in placing the burden on the defendants to prove the length and breadth of the pathway claimed by the plaintiff. Finding recorded by the First Appellate Court that the plaintiff has sought for declaration and injunction by claiming easement of necessity and prescription. Thereby, the impugned judgment is not only erroneous but it is against the settled position of law. The First Appellate Court had no basis to record a finding that there is no alternative cart-road available for the plaintiff, inspite of clinching document Ex.P13 and Ex.D9 are produced by both the parties. 19. Learned counsel placed reliance on the decision of this Court in Sudhakar Bhat And Others V.S Bhaskara Achari And Others1 to contend that when there is no specific 1 "2019 (3) AKR 405" - 12 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 averments to claim either right by prescription or by necessity, the suit of the plaintiff is liable to be dismissed. 20. He also placed reliance on the decision in R Paramasivan and another V.s Smt. T Anasuya2 to contend that when it is shown that the plaintiff is having access to alternative way, he is not entitled for any declaration seeking easement by necessity. Therefore, learned counsel for the appellant prays for allowing the appeal, dismissing the suit filed by the plaintiff by setting aside the impugned judgment and decree passed by the First Appellate Court. 21. Per contra, learned counsel for the respondent/plaintiff opposing the appeal submitted that the plaintiff is specifically seeking right over the cart-road by easement of necessity. Section 13(e) of Indian Easement Act is invoked by the plaintiff to seek declaration and permanent Injunction. 22. Learned counsel contented that the father of the plaintiff and defendant No.1 were direct brothers. There was partition between brothers in respect of Sy.No.46 of Anajigeri 2 "AIR 2005 KARNATAKA 240" - 13 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 village, Arasikere Hobli, Harapanahalli Taluk. The father of the plaintiff got Sy.No.46-B, while the father of defendant No.1 acquired 46-A. Therefore, plaintiff and defendant No.1 are cousins. This relationship is not disputed by any of the defendants, rather it is admitted in the written statement. 23. Learned counsel contended that Sy.No.45-A and 45-B belongs to defendant No.3. It is only defendant Nos.1 and 3, who are objecting for the plaintiff from using the disputed cart-road. The owner of Sy.No.47 is not arrayed as party, as he never objected the plaintiff from using the said cart-road. 24. Learned counsel contended that PW2 is the owner of Sy.No.45-C, in which, the disputed cart-road passes through. This witness has fully supported the case made-out by the plaintiff. When admittedly, Sy.No.46-B and 46-A were inherited by the plaintiff and defendant No.1 respectively, naturally, there will be a right of easement by necessity in favour of the plaintiff, who is the dominant owner, while defendant No.1 is the servient-tenant. Learned counsel also contented that PW3 is the owner of Sy.No.45-C and PW4 is the owner of Sy.No.48, - 14 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 which are also situated nearby the suit road. Both these witnesses also supported the case of plaintiff. Nothing has been elicited from them during cross-examination. 25. The counsel contended that defendant Nos.1 and 3 being the owners, whose lands are situated by the side of the disputed cart-road were influenced by defendant No.2, who was not the owner of any piece of land in the village. He is the mischief-monger, who instigated the other defendants to cause obstruction. Defendant Nos.1 and 3 have never stepped into the witness box to speak about their contention or to deny the contention of the plaintiff. It is only defendant No.2 examined himself as DW1. Even though he has no right over the cart- road in question. 26. Learned counsel contended that DW2 and DW3 are not the owners of any of the piece of land in the village, where the cart-road is situated. Even though the defendants have taken a defence that there existed an alternative cart-road, the same is not proved by them. The village map produced by the plaintiff as per Ex.P13 and by the defendants as Ex.D9 are one and the same. The dotted line referred to by the defendants is - 15 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 only a pathway and not the cart-road. The pathway shown in the dotted line in the village map cannot be used for taking the cart, for transportation of agricultural implements, produces etc. The First Appellate Court on proper appreciation of the materials on record, rightly decreed the suit. It is only defendant No.2 who is in no way concerned to any of the properties situated by the side of the cart-road claimed by the plaintiff is contesting the matter. He is interested in denying the right of the plaintiff. 27. Learned counsel also contented that the suit cannot be dismissed on technicalities, as the plaintiff specifically pleaded his right to use the cart-road by easement of necessity. Even though the exact length and breadth of the cart-road 'ABCDEFGH' is not shown in the plaint sketch, the parties have understood about the contentions regarding existence of the road and no such defence was ever raised by the defendants. Therefore, he prays for dismissal of the appeal with costs. 28. Perused the materials on record including the Trial Court records. It is the specific contention of the plaintiff that he is the owner of Sy.No.46-B situated at Anajigeri village, - 16 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 Arasikere Hobli, Harapanahalli Taluk and defendant No.1 is the owner of Sy.No.46-A, situated on the northern side of Sy.No.46-B owned by the plaintiff. 29. It is also the contention of the plaintiff that defendant No.3 owns Sy.No.45-A and 45-B of Anajigeri village, Arasikere Hobli, Harapanahalli Taluk, which is situated on the other side of the disputed cart-road shown as 'ABCDEFGH' in the plaint sketch. This contention of the plaintiff is not disputed, rather defendant Nos.1 and 2 have admitted the same. 30. It is the contention of the plaintiff that originally Sy.No.46 was belonging to the grandfather of the plaintiff and defendant No.1. It is contented that the father of the plaintiff and defendant No.1 have partitioned Sy.No.46 and the share allotted to the father of the plaintiff was mutated as 46-B, while the share allotted to the father of defendant No.1 is mutated as 46-A. Thus, it is contented that the plaintiff and defendant No.1 are cousins. This fact is also admitted by defendants. Now it is the contention of the plaintiff that from the cart-road, which is running by the side of Sy.No.62, it runs through the lands 45- A, 45-B, 45-C on the western side and 47, 46-A, on the eastern - 17 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 side to reach the land of the plaintiff in Sy.No.46-B. This contention of the plaintiff is denied by the defendants. 31. It is interesting to note that admittedly, defendant No.2 is not the owner of any piece of land in the vicinity. It is only defendant Nos.1 and 3, who are the owners of the lands, which are laying by the side of the road claimed by the plaintiff. However, defendant Nos.1 and 3 have never stepped into the witness box to deny the right of the plaintiff over the disputed road. It is only defendant No.2, who stepped into the witness box and got examined himself as DW1. It is the specific contention of the plaintiff that it is this defendant No.2, who examined as DW1 is the mischief-monger, who is instigating defendant Nos.1 and 3 to deny the right of the plaintiff. 32. It is the specific contention of the plaintiff that DW2 and DW3 are not the owners of any of the lands situated near the scheduled property. The evidence of these witness support such contention. 33. Plaintiff and defendants have produced the village maps marked as per Ex.P13 and Ex.D9. As per this village map, there is no cart-road as claimed by the plaintiff. It is pertinent - 18 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 to note that even according to the learned counsel for the appellants the dotted line shown in the village map is only the pathway, while the broken line shown in the sketch is the cart- road. Even as per the village map, there is no cart road passing nearby the land belonging to the plaintiff or defendants. Only a dotted line is touching the lands of plaintiff and defendant No.1 to pass through the same which is admittedly the path way but not the cart-road. Now the question arises as to how the plaintiff and defendant transport their agricultural implements, seeds and agricultural produces without access to the Cart- road. 34. The plaintiff has not referred to the length and breadth of the cart-road claimed by him. However, the same is shown in the plaint sketch. The defendants are disputing the very existence of this cart-road as claimed by the plaintiff. 35. Even though it is contented by the learned counsel for the appellants that the prayer made in the plaint is vague, the plaintiff has sought for easement by necessity in the body of the plaint. As rightly contented by the learned counsel for the plaintiff, the plaintiff cannot be non-suited only on - 19 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 technicalities, as even the defendants have understood the contention taken by the plaintiff that he is claiming the right of easement by necessity by contending that he is not having any alternative cart way to reach his land as shown in the village map. When admittedly, Sy.No.46A now owned by the defendants and Sy.No.46B now owned by plaintiff were held by a common ancestor, when admittedly, there is no cart-road to reach Sy.No.46B of the plaintiff from the cart-road that is shown running in Sy.No.61 in the Village map Exs.P13 and D9, I am of the opinion that the plaintiff is entitled for a decree in his favour, declaring the right of way over 'ABCDEFGH' cart- road shown in the plan attached to the plaint. However, the width of the road shall be 8 feet to enable a tractor-trailer or a tiller to pass on. The plaintiff is also entitled for permanent injunction, restraining the defendants and their agents etc, from causing any obstruction to the plaintiff from passing through this cart-road shown as 'ABCDEFGH'. 36. I have gone through the impugned judgment and decree passed by the First Appellate Court, it has taken into consideration all these aspects of the matter and came to the conclusion that the plaintiff is entitled for a decree. I do not find - 20 - HC-KAR NC: 2025:KHC:53969 RSA No. 1376 of 2009 any illegality or perversity in the said order, while the Trial Court dismiss the suit of the plaintiff only on technicalities. Therefore, I answer the substantial question of law Nos.1 and 2 against the appellants and in favour of the respondent and proceed to pass the following: ORDER i) The appeal is dismissed. ii) The parties are directed to bear their own costs. iii) It is made clear that the cart-road shown in the plaint sketch as 'ABCDEFGH' shall be 8 feet in its width. iv) Office is directed to modify the decree drawn by the First Appellate Court only to that extent. Registry is directed to send back the Trial Court and the First Appellate Court records along with copies of the judgment and modified decree. Sd/- (M G UMA) JUDGE BH/PNV CT:VS List No.: 1 Sl No.: 15