- 1 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 11TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO.5403 OF 2011 (DEC/INJ) BETWEEN: 1. SRI. JAGADISH VEERAPPA KANKANWADI, AGE: 53 YEARS, OCC. BUSINESS, R/O. 4013/2B1, GANACHARI GALLI, BELAGAVI-590 001. SINCE DECEASED BY HIS LRS. 1A. SMT. VIJAYA W/O. BASAVARAJ PATIL, AGE: 63 YEARS, OCC. HOUSEHOLD, R/O. HOUSE NO. 4014, GANACHARI GALLI, BELAGAVI-590 001. 1B. SRI. MAHABALESHWAR VEERAPPA KANKANWADI AGE: 61 YEARS, OCC. TAX PRACTITIONER, R/O. MAHADEV GANESHA, 5TH CROSS, AJAM NAGAR EAST, AJAM NAGAR, BELAGAVI-590010. SINCE DECEASED BY HIS LRS. 1B(A). SMT. SHOBHA W/O. MAHABALESHWAR KANKANWADI, AGE: 50 YEARS, OCC. HOUSEHOLD, R/O. MAHA GANESH, PLOT NO.9, 1ST CROSS, 4TH LANE, AZAM NAGAR(EAST), BELAGAVI-590010. 1B(B). SRI. GAGAN S/O. MAHABALESHWAR KANKANWADI, AGE: 22 YEARS, OCC. STUDENT, R/O. MAHA GANESH, PLOT NO.9, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.13 10:24:07 +0530 - 2 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 1ST CROSS, 4TH LANE, AZAM NAGAR(EAST), BELAGAVI-590010. 1C. SRI. ARAVIND VEERAPPA KANKANWADI AGE: 60 YEARS, OCC. LEGAL PRACTITIONER, R/O. MAHA GANESHA, 5TH CROSS, R/O. HOUSE NO.4014, GANACHARI GALLI, BELAGAVI-590002. 2. SRI. PRAKASH VEERAPPA KANKANWADI, AGE: 55 YEARS, OCC. BUSINESS, R/O. 4013/2B3, GANACHARI GALLI, BELAGAVI-590 001. …APPELLANTS (BY SMT. SURABHI KULKARNI, ADVOCATE) AND: 1. SRI. BASAVARAJ MURAGEPPA KHADABADI, AGE: 57 YEARS, OCC. BUSINESS, R/O. 4013/2B2, GANACHARI GALLI, BELAGAVI-590001. 2. SMT. LALITA W/O. VILAS DESAI, AGE: 56 YEARS, OCC. HOUSEHOLD, R/O. 4013/2B4, GANACHARI GALLI, BELAGAVI-590001. …RESPONDENTS (BY SRI. RAJENDRA R. PATIL, ADVOCATE FOR R1 AND R2) THIS RSA IS FILED UNDER SECTION 100 R/W. ORDER 41 RULE 1 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 16.12.2010 PASSED BY THE FIRST ADDITIONAL SENIOR CIVIL JUDGE, BELAGAVI IN R.A.NO.198/2008 AND RESTORE THE JUDGMENT AND DECREE DATED 21.08.2008 IN O.S.NO.792/2002 PASSED BY THE III ADDITIONAL CIVIL JUDGE JR.DN. BELAGAVI AND ALLOW THIS APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN O.S.NO.792/2002 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE JR.DN. BELAGAVI FILED BY THE RESPONDENTS. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER. - 3 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI ) Heard the learned counsel appearing for the appellant. 2. Being aggrieved by the judgment of Trial Court and the First Appellate Court in O.S.No.792/2002 and R.A.No.198/2008, the defendant Nos.1 and 2 are before this Court in this appeal. 3. The factual matrix relevant for the purpose of this appeal are that: (a) The property bearing CTS Nos.4013/2B1 and 4013/2B3, which are in the form of strips are owned by the defendant Nos.1 and 2, respectively. (b) Similarly, the CTS No.4013/2B2 and 4013/2B4 are owned by the plaintiff Nos.1 and 2, respectively. 3.1. On the northern side of all these four strips, there is a passage measuring 45 ft X 5 ft in the form of a strip running east-west. The subject matter of the dispute between the parties is this strip, where a latrine and a well are situated. All these four properties originally belonged to one Kurane family. Subsequently, the properties were partitioned between the - 4 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 members of the family and these 4 strips belonging to the plaintiffs and defendants were allotted to the respective sharers. The plaintiff No.1 purchased CTS No.4013/2B2 on 27.12.1988 and plaintiff No.2 purchased CTS No.4013/2B4 under sale deed dated 02.08.1993. Prior to such purchase, the plaintiffs were in possession and enjoyment of the property as tenants under the Kurane family. 3.2. It is contended that the plaintiffs have a right of easement to use the northern strip measuring 45 ft X 5 ft, where the latrine and well are situated. Since more than 50 years, the said passage is used as a common property by owners and occupants i.e., the plaintiffs and defendants and there was no hindrance for the same. It is contended that the defendant No.2 purchased CTS No.4013/2B3 and the defendant No.1 purchased CTS No.4013/2B1. It is contended that in the sale deeds of the plaintiff Nos.1, 2 and defendant No.2, there is a mention that the suit passage is to be used commonly by all the occupants, whereas in the sale deed executed in favour of defendant No.1, there is no mention about the said common usage of the passage, but the said passage is shown to be part and parcel of - 5 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 the property sold to the defendant No.1. When the plaintiffs tried to use the suit passage, the defendants objected and therefore, there was a cause of action for the suit. The plaintiffs sought for the prayer that the sale deed executed by the vendors in favour of the defendant No.1 so far as inclusion of this suit passage is null and void and for declaration that there is common ownership right in respect of the suit passage for all the purchasers. 4. On service of notice, the defendants appeared through their counsel and filed written statement contending that the sale deeds executed by the vendors in favour of the plaintiff Nos.1, 2 and defendant No.2 categorically mention that they have the right of usage of the common passage and therefore, the suit filed by the plaintiffs is unsustainable and defective one. They also contended that the two prayers are defective since the Court fee was paid on only one of the prayers. However, the defendants admitted that the plaintiffs and the defendants had purchased these properties from the members of Kurane family, which inter se they had partitioned long back wherein the common usage of the passage was also incorporated in the partition document. - 6 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 5. The defendants denied that the plaintiffs had any exclusive rights in respect of the passage, but it was the defendant No.1, who had the title over the suit passage and as such, the suit is liable to be dismissed. On the basis of the above pleadings, the following issues were framed by the Trial Court: “ISSUES 1. Whether the plaintiffs prove that, they have common ownership rights over the suit property? 2. Whether the plaintiffs prove that, the sale deed dated 12-1-1994 executed in favour of defendant no.1 in respect of CTS NO.4013/2B1 is null and void to the extent of suit property? 3. Whether the plaintiffs prove the alleged obstruction by the defendant to the common enjoyment of the suit property? 4. Whether defendant proves that, the plaintiff has not paid the court fee properly? 5. Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed? 6. What order or decree?” - 7 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 7. After letting in evidence, the Trial Court heard the arguments and the Issue Nos.1 to 3 and 5 were answered in the affirmative and Issue No.4 was answered in the negative and the suit came to be decreed. Aggrieved by the said judgment and decree, the defendants preferred R.A.No.198/2008 and after hearing, the First Appellate Court dismissed the appeal. Being aggrieved, the defendants are before this Court in second appeal. 8. The learned counsel appearing for the appellant would submit that the sale deed of the defendant No.1 is for an area measuring 640 sq. ft., which is inclusive of the suit passage. It is submitted that the properties purchased by the plaintiff Nos.1 and 2 and the defendant No.2 measure lesser than 630 sq. ft., and therefore, it does not include the title in respect of the suit passage. She further submits that when the sale deed executed in favour of defendant No.1 by the vendors does not mention that the passage is subject to an easementary right of usage by the purchasers of the remaining strips, it was not proper on the part of Trial Court and the First Appellate Court to decree the suit. It is contented that the nature of the rights - 8 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 sought by the plaintiffs was of the character of easementary right, but not the title. Therefore, the declaration that the sale deed executed by the vendors in favour of defendant No.1 could not have been nullified so far as it relates to the suit passage. She further submits that when the sale deed of the defendant No.1 does not mention about any such easementary right that existed in the property purchased by the defendant No.1, it was not right on the part of the Trial Court and the First Appellate Court to decree the suit. 9. Per contra, learned counsel appearing for the respondents would submit that though the declaration that the sale deed is null and void in respect of the suit passage may be found fault with, the other declaration that the plaintiffs have common ownership rights over the suit property could not be objected by the defendants. It is submitted that when the property was in the hands of Kurane family, the passage was used by all the shareholders and accordingly they had partitioned the same in the year 1938, as per Ex.P.3. When it is mentioned in Ex.P3 that the suit passage is to be used commonly by all the shareholders, the sale deeds should have reflected the same, but - 9 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 on the contrary the defendant No.1 got the sale deed, which is inclusive of the said passage, which cannot be sustained. 10. He further submits that there is no specific mention about this passage being part of the property, which is sold to the defendant No.1. He also submits that the measurements of the property of the defendant No.1 is also not found in the sale deed and therefore, the claim of the defendant over the suit passage cannot be sustained. In fact, it was defendant No.1, who had to seek a declaration that the passage is also owned by him. The description of the property purchased by the defendant No.1 not being specific and showing it relates to the suit passage, the claim of the defendant No.1 would not be entertained. It is pertinent to note that the only substantial question of law that arises in this second appeal is: “Whether the Courts below are justified in holding or in decreeing the suit as prayed by nullifying the right of the defendant No.1 over the suit passage?” 11. On perusal of the sale deeds of the plaintiffs and defendants, which are in Ex.P.1 to Ex.P.4, they show that the - 10 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 property sold to the defendant No.1 (CTS No.4013/2B1) does not specifically mention that it includes the passage. However, the total area is mentioned to be 630 sq.ft., of built up area and the total area is mentioned as 116.22 sq.mtrs., which comes to 1250.98 sq.ft. Therefore, it is evident that when the vendor of the defendant No.1 sold the property, it included the area which covers the suit passage. When we examine the sale deeds of the plaintiffs and the defendant No.2, the area mentioned in them is lesser than the area which is sold to the defendant No.1. Thus, it is evident that even though the title over the passage passed to the defendant No.1 under the sale deed, the right of easement to use the suit passage for the purpose of the latrine and the well was given to the plaintiffs and defendant No.2 i.e., the holders of CTS Nos.4013/2B2, 4013/2B3 and 4013/2B4. This right given to the plaintiffs and the defendant No.2 under the sale deeds flows from the partition in the family of their vendors in the year 1938 as per Ex.P.3. Therefore, the defendants could not have obstructed the usage of the said passage by the plaintiffs. 12. It is to be noted that the plaintiffs and the defendant No.2 had no title over the suit passage and they could not - 11 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 substantiate their claim to hold the title. Therefore, when the sale deed of the defendant No.1 mentions the total area inclusive of the suit passage, the title rests with defendant No.1. However, his rights over the suit passage would be subservient to the easmentary right, which were granted to the plaintiffs and defendant No.2. The defendant No.1 cannot restrain the plaintiffs or the defendant No.2 to use the passage in whatsoever manner. It is needless to observe that the rights which are granted to the plaintiffs and the defendant No.2 under their sale deeds cannot in any way be abrogated by any of the transactions of the defendant No.1. It needs to be observed that if any of the rights of such easement which is available to the plaintiffs and the defendant No.2 is to be modified, it can only happen with the consent of all the title holders of the properties involved in Ex.P.1 to Ex.P.4. 13. When we examine the decree passed by the Trial Court and confirmed by the Appellate Court in the background of the above evidence, which is available on record, it appears that the grant of the decree in nullifying the sale deed of the defendant No.1 to the extent of the suit passage cannot be - 12 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 sustained. In case such decree remains by nullifying the title in respect of the suit passage, obviously the title would revert back to the four vendors of the plaintiffs and defendants, which evidently was not the intention of those vendors. Under these circumstances, the nullifying or declaring null and void the sale deed in respect of the suit passage in favour of defendant No.1 cannot be sustained. 14. It is pertinent to note that by way of the sale deed, the right to use the passage is also given to the plaintiffs and defendant No.2. Such ownership right over the suit passage by the plaintiffs and defendant No.2 would be subservient to the right, which is given to the defendant No.1, as observed above. Therefore, there need not be any modification in respect of the decree concerning the rights of the plaintiffs over their suit passage. In the result, the substantial question of law is answered accordingly. The appeal deserves to be allowed in part. Hence, the following: ORDER (i) The appeal is allowed in part. - 13 - HC-KAR NC: 2025:KHC-D:15373 RSA No. 5403 of 2011 (ii) The decree insofar as declaring the sale deed of the defendant No.1 null and void concerning the suit passage measuring 45 ft X 5 ft is hereby set aside. Rest of the decree passed by the Trial Court and confirmed by the Appellate Court remains unaltered. (iii) In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. SD/- (C M JOSHI) JUDGE YAN CT:PA LIST NO.: 1 SL NO.:15