- 1 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 141 OF 2020 (DEC) BETWEEN: SRI. BOMMALINGAIAH S/O LATE SHIVANNA AGED ABOUT 44 YEARS RESIDING AT ARALIKERE VILLAGE KASABA HOBLI, TURUVEKERE TALUK - 572 227, TUMKUR DISTRICT. …APPELLANT (BY SRI. JEEVAN KUMAR B.S, ADVOCATE) AND: SRI. SADASHIVAPPA S/O BOMMALINGAIAH AGED ABOUT 66 YEARS RESIDING AT ARALIKERE VILLAGE KASABA HOBLI, TURUVEKERE TALUK - 572 227, TUMKUR DISTRICT. …RESPONDENT (BY SRI. M.B. CHANDRA CHOODA, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 11.11.2019 PASSED IN RA NO 18/2014 ON THE FILE OF THE C/C SENIOR CIVIL JUDGE AND JMFC TURUVEKERE DISMISSING THE APPEAL AND Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 CONFIRMING THE JUDGMENT AND DECREE DATED 02.04.2014 PASSED IN OS NO 172/2008 ON THE FILE OF THE CIVIL JUDGE AND JMFC TURUVEKERE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri. Jeevan Kumar B.S., learned counsel for the appellant and Sri. M.B. Chandrachooda, learned counsel for the respondent. 2. Second appeal is by the defendant who suffered an order of decree of declaration and injunction in O.S.No.172/2008 in respect of the property which is the in landed property situated in Aralikere Village, Kasaba Hobli, Turuvekere Taluk, in Sy.No.30/1 measuring 1 acre 14 guntas and Sy.No.30/1 measuring 0.15 guntas and both items are situated in common boundary bounded on East by : Land of Prasanna Kumar, West by : Halla, North By: - 3 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 Madihalli and South by: land of the plaintiff, marked in the Sketch as 'C', 'D' and 'E'. 3. The validity of the judgment and decree passed in the suit was questioned in First Appeal before the Civil Judge (Senior Division, Turuvekere), in R.A.No.18/2014. 4. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and taking note of the admission made by the defendant in his cross-examination about the pathway situated in the suit land marked as 'C', 'D' and 'E'. 5. Being further aggrieved by the same, defendant is before this court in this appeal on the following grounds: It is submitted that the lower appellate court has erred in considering the documents and relying upon it without taking on record the additional evidence as prescribed under Order XLI Rule 27 of CPC. The validity of the document has been decided upon by the lower appellate court even without taking the documents on record. - 4 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 It is submitted that the lower appellate court before deciding the relevancy of the document ought to have allowed and hence the rejection of the said application is void and the orders passed on the said application will have to be set aside and the appeal ought to have been tried after taking the evidence on record, as per section 105 of CPC. It is submitted that the lower appellate court though held that the Tahsildar report mentions the existence of an alternative road has dismissed the appeal which is wholly erroneous. The assumption of the lower appellate court that the Tahsildar report does not specifically state which are those alternative ways is wholly erroneous. On the contrary it the defendant were to establish that there is an alternative way, the right of easement would not grow in favour of the plaintiff. Hence the view taken by the courts below is liable to be set aside. It is submitted that the respondent who is the 5th defendant in OS No173/2008 has himself contended that the suit schedule properties and the schedule properties in OS No. 173/2008 being adjacent properties, the plaintiff Prasannakumar has an alternative road on the eastern side and the plaintiff could access his land through the Madihalli-Aralikere road and the road from Bommalingeshwara Swamy Temple and Basavalingaiah's house and that the road given in the schedule property is not in existence. - 5 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 It is submitted that the same trial court has considered upon the suits bearing O.S Nos. 172/2008 & 173/2008 seeking for judgment and decree of the same reliefs in both the suits has passed contradicting judgments by decreeing the suit in O.S No. 172/2008 and dismissing the suit in O.S No.173/2008 on the ground that the plaintiff has not established the existence of cart track road, though both the suits are regarding property in Sy. No.30/1 situated at Aralikere Village, Kasaba Hobli, Turuvekere Taluk. It is submitted that the trial court has erringly held the contentions raised by the defendant/appellant in his written statement and the answers depositions given by the PWI, DWI and DW2 in their cross examinations themselves amount to interference by the appellant/defendant in his easement of necessity. It is submitted that though the respondent/plaintiff in O.S No.172/2008 has failed to establish the existence of the pathway as averred by him in his plaint by producing a document approved by the competent authority the trial court has falsely decreed the suit upon production of a rough sketch along with the plaint. 6. In the appeal, following substantial questions of law are raised: - 6 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 i) Whether the lower appellate court was justified in the rejecting the application under Order XLI Rule 27 of CPC and further relying upon the said documents? ii) Whether the lower appellate court was justified in rejecting the Tahsildar report, which held that the plaintiff has alternative ways to reach his land based only on assumptions and presumptions? iii) Whether the trial court was justified in decreeing the suit, and granting relief on the path way though the path way is not made as a schedule to the suit. iv)Whether the trial court was justified in passing contrary judgments i.e.. the impugned judgment in O.S No.172/2008 and the judgment in O.S No. 173/2008 filed by the neighbour claiming easement on the same pathway? v)Whether the trial court was justified in decreeing the suit in O.S No. 172/2008 though the pathway in which the plaintiff claims an easement is not made a schedule property to the suit? vi) Whether trial court was justified in decreeing the suit in O.S No. 172/2008 without the plaintiff having produced a document issued by the competent authority to establish the existence of the pathway in between the schedule properties? - 7 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 vii) Whether the lower appellate court was right in dismissing R.A No. 18/2014 confirming the judgement and Decree of decreeing the suit in O.S No. 172/2008 passed by the Trial Court? 7. Learned counsel for the appellant Sri. Jeevan Kumar B.S. reiterating the grounds urged in the appeal memorandum vehemently contended that the declaration granted by the learned Trial Judge confirmed by the First Appellate Court with regard to the pathway is against the settled principles of law. 8. With regard to the right of a party to enjoy the pathway unless the same is established by placing cogent evidence on record for a prescribed period decreeing suit is impermissible and therefore sought for the appeal to be admitted. 9. Per contra, Sri. M.B. Chandrachooda, learned counsel for the respondents supports the impugned judgment. - 8 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 10. Having heard the arguments of both sides, this Court perused the material on record meticulously, especially suit Sketch where in the suit properties are situated with common boundary and pathway mentioned in the suit sketch alphabet 'C' 'D' and 'E'. 11. Appellant-DW1 in his cross-examination, categorically admitted that there exists a pathway as shown in the suit sketch with alphabet 'C' 'D' and 'E'. It is also categorical admission of the DW1 that the plaintiff has to reach his land through Point 'C'. However, he has also stated that there is one more road to reach the property of the defendant. 12. Whereas, DW2 who is a witness on behalf of the defendant, categorically admitted in his cross-examination that before 0-15 guntas of land, even the defendant was entering his property through Point 'C'. 13. Taking note of these two admissions, learned Trial Judge took into consideration that the defendant - 9 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 failed to prove the existence of the alternate road to reach the property of the plaintiff and decreed the suit. 14. It is not uncommon that when the lands are sold from one person to another person, even though in the sale deeds there are specific averments that the sale will be subject to any easementship any, it is often not adhered to by the parties especially when the lands are sold in bits. 15. It is in such circumstances, Section 13 of the Easements Act come into play. For ready reference, Section 13 of the Easement Act is culled out hereunder: 13. Easements of necessity and quasi- easements Where one person transfers or bequeaths immovable property to another, (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or - 10 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or (c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement;or (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons, (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. The - 11 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. 16. On careful perusal of the material on record, in view of the admission of DW1 and DW2 that the plaintiff has to reach to his land through Point 'C' and earlier to sale of 0-15 guntas in favour of the defendant, even defendant was using the pathway which is shown as 'C' 'D' and 'E' by reaching from Madihalli Road side. 17. In other words, in the absence of any proper proof to show that there exists an alternate and suitable road to reach the property of the plaintiff, plaintiff is entitled to an order of declaration for the usage of the pathway to reach his land as is found in the suit sketch. - 12 - HC-KAR NC: 2025:KHC:31363 RSA No. 141 of 2020 18. Therefore, the substantial questions of law raised in the appeal referred to supra do not merit for further consideration. 19. Accordingly, the following: ORDER Regular Second Appeal is meritless and hereby dismissed. SD/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 30 CT: BHK