SMT. K. KALAVATHI v. SRI. KUBER SINGH & Ors.

(BY SRI. H.V. DEVARAJU, ADVOCATE FOR C/R1; V/O DATED 29.11.2012 APPEAL AGAINST R3 IS ABATED AND R2 IS DISMISSED) …RESPONDENTS THIS RFA IS FILED U/O-XLI, RULE-1, R/W, SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED

30.10.2010 PASSED IN O.S.1829/1998 ON THE FILE OF THE VII-ADDL. CITY CIVIL JUDGE, DECREEING THE SUIT FOR THE DECLARATION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT The captioned appeal is by unsuccessful defendant assailing the judgment and decree rendered in OS.No. 1829/ 1998.

#2. For the sake of convenience, parties are referred to as per their rank before the trial Court - 3 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR

#3. The facts leading to the case are as under: The plaintiff instituted a suit for injunction simpliciter in O.S. No.1829/1998. During the pendency of the suit, the plaintiff sought amendment of the plaint to incorporate the relief of declaration, specifically seeking a declaration of his easementary right over the suit schedule ‘C’ property.

#4. In the plaint, the plaintiff pleaded that his grandfather, Hanuman Singh, had purchased the schedule ‘A’ property under a registered sale deed dated

12.12.1948, and that the said property subsequently stood transferred in the name of Anjani Ram Singh, the plaintiff’s father. It was further pleaded defendants are the owners of schedule ‘B’ property situated on the northern side of the plaintiff’s property and that a passage exists in between the properties belonging to the plaintiff and the defendants. - 4 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR

#5. The plaintiff specifically averred that disputes had earlier arisen in respect of the said passage, pursuant to which the defendants had instituted a suit in O.S. No.1241/1976. Though the said suit was initially decreed, the plaintiff’s father, aggrieved by the injunction granted therein, preferred an appeal in R.A. No.182/1976, wherein the appellate Court allowed the appeal and categorically held that the plaintiff’s father had an easementary right over the suit passage and that the said passage constituted access available to him. Notwithstanding the finality attained by the judgment in R.A. No.182/1976, the plaintiff alleged that the defendants once again deliberately raised the height of the wall on the northern side of the plaintiff’s property, thereby obstructing free flow of light and air, and also attempted to encroach upon the common passage by extending the common wall, which necessitated the filing of the present suit. - 5 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR

#6. Upon service of summons, defendants 1 and 2 entered appearance and filed their written statement contesting the suit. During the pendency of proceedings, defendants 1 and 2 brought to the notice of the Court that they had alienated the suit property in favour of defendant No.3. In the written statement, the defendants disputed the plaintiff’s claim of easementary right over the suit passage and sought dismissal of the suit.

#7. Based on the rival pleadings, the Trial Court framed appropriate issues and directed the parties to adduce oral and documentary evidence. The plaintiff examined himself as PW-1 and produced 19 documents in support of his case. The defendants, however, did not choose to lead any rebuttal evidence.

#8. The Trial Court, upon appreciation of the oral and documentary evidence on record, and more particularly, upon adverting to the findings recorded in - 6 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR R.A. No.182/1976 arising out of O.S. No.1241/1976, and also placing reliance on the Commissioner’s report secured in the earlier round of litigation marked as Ex.P9, proceeded to decree the suit. The Trial Court held that the easementary right of the plaintiff’s ancestors to use the suit passage stood conclusively adjudicated in the earlier round of litigation and that the judgment in R.A. No.182/1976 having attained finality, was binding on the defendants and their successors-in-interest. Consequently, the suit was decreed, restraining the defendants from putting up any construction in schedule ‘B’ property by encroaching upon the suit passage and from raising the height of the common wall separating schedule ‘A’ and ‘B’ properties.

#9. Aggrieved by the said judgment and decree, defendant No.3, the subsequent purchaser, has preferred the present appeal. - 7 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR

#10. Heard the learned counsel appearing for the appellant/defendant No.3 and the learned counsel for the plaintiff/respondent No.1. Perused the records.

#11. The following points would consideration: "(i) Whether the judgment and decree passed by the Trial Court declaring the plaintiff’s right over the suit passage and granting consequential injunction restraining defendant No.3 encroaching upon the suit passage and from raising the height of the common wall suffers from perversity? (ii) What order?" Finding on Point No. (i):

#12. On a careful and closer scrutiny of the entire material on record, this Court is of the considered view that the defendants, despite having suffered an adverse adjudication in R.A. No.182/1976, have once again attempted to re-litigate issues which stood conclusively - 8 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR settled in the earlier round of proceedings. Such re- litigation is not only contrary to the binding findings recorded therein, but also directly runs counter to the categorical admissions elicited the defendants themselves in O.S. No.1241/1976.

#13. This Court, having adverted to the records of the earlier suit, more particularly the depositions recorded in O.S. No.1241/1976, finds that the present defendants Nos.1 and 2, who were the plaintiffs in the said suit, have unequivocally admitted in their cross-examination the existence of the suit passage. They have further admitted that the plaintiff’s grandfather was using the said passage as a means of access to his property. These admissions strike at the very root of the defence now sought to be set up and clearly belie the present attempt to dispute the plaintiff’s easementary right.

#14. Further, on examination of Ex.P-14, which is the deposition of PW-4, L. Munireddy, examined on behalf - 9 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR of the defendants in O.S. No.1241/1976, it is evident that even the said witness has acknowledged and admitted that the ancestors of the present plaintiff were using the passage situated on the eastern side of the defendants’ house for about seven to eight years prior to the institution of the earlier suit. These admissions lend strong corroboration to the plaintiff’s case and establish long, open and continuous use of the suit passage.

#15. Added to this, the Commissioner’s report secured in the earlier proceedings, which is now marked as Ex.P-9, unequivocally reveals that the plaintiff’s property is landlocked and that there is no access to the said property except through the suit passage. The said report, which formed part of the evidentiary record in the earlier round of litigation, fortifies the factual finding that the suit passage is the only means of ingress and egress available to the plaintiff and his predecessors-in-interest. - 10 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR

#16. In the backdrop of the dismissal of the suit instituted by the defendants’ predecessors in O.S. No.1241/1976, in view of reversal thereof by the appellate Court in R.A. No.182/1976, the right of the plaintiff and his ancestors to use the suit passage stood conclusively adjudicated on merits. The appellate Court, in the earlier round of litigation, has recorded a clear and categorical finding of fact that the plaintiff’s property is situated at the hind side of the defendants’ property and that the plaintiff has an easementary right to use the suit passage as there exists no other access. The said finding, having attained finality, binds not only the original parties but also their successors-in-interest.

#17. In the present proceedings, the plaintiff has once again placed before the Court credible, cogent and clinching evidence demonstrating the existence and exercise of easementary right over the suit passage much prior to the year 1970. Significantly, neither defendants 1 and 2 nor defendant No.3, the subsequent purchaser, - 11 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR have chosen to lead any rebuttal evidence to dislodge the overwhelming material produced by the plaintiff. In the absence of any contra evidence, the findings recorded by the Trial Court cannot be faulted.

#18. This Court is, therefore, of the firm view that the plaintiff’s easementary right over the suit passage stands conclusively determined in the earlier round of litigation and cannot be permitted to be reopened. Defendants 1 and 2, having suffered a binding adjudication, and defendant No.3, being a subsequent transferee, are clearly precluded from re-agitating or re- litigating the very same issue. The Trial Court has meticulously examined these crucial aspects and, on proper appreciation of the material on record, has rightly concluded that the plaintiff’s easementary right over the suit passage stands duly established. The said finding does not suffer from perversity or illegality warranting interference in appeal. - 12 - NC: 2026:KHC:2423 RFA No. 231 of 2011 HC-KAR For the foregoing reasons, point No. 1 is answered in the negative.

#19. In view of the findings recorded on point No.1, this Court proceeds to pass the following: ORDER The appeal is dismissed. SD/- (SACHIN SHANKAR MAGADUM) JUDGE ALB List No.: 1 Sl No.: 26