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Judgment
V. Jagannathan, J.—This second appeal is by the defendants in the trial court aggrieved by the lower appellate court reversing the judgment of the trial court. The trial court had dismissed the suit filed by the respondents-plaintiffs for declaration that 10 feet space towards the southern side of the plaintiffs'' land is a road.
The case of the plaintiffs before the trial court was that the suit schedule property bearing khatha No. 1603-1748 and A.R. No. 7218 measuring 40'' east-west and 45'' north-south was purchased by them under registered sale deeds dated 23.1.1982 and 17.2.1986 and to the southern side of the plaintiffs'' house, there is a house which belongs to one Laxminarayana and the site of the defendants. It was the plaintiffs'' case that 10 feet road exists between the property of Laxminarayana and the plaintiffs and the defendants encroached upon the said 10 feet road to an extent of 9 feet and put up a fence and the defendants have no right to encroach the said road and, therefore, the prayer for a declaration was made and also permanent injunction restraining the defendants from putting up any further construction in the said portion was sought.
The defendants denied plaintiffs'' case in toto and it was their stand that no such road exists as contended in the plaint and the defendants purchased the land measuring 50'' x 25'' from one H.N. Vijayakumar under registered sale deed dated 22.10.1981 and there was no road to the north of their property on the date of purchase and the vendor of the plaintiffs as well as the defendants were not made parties. The suit, therefore, be dismissed.
The learned trial judge framed five issues as could be seen in paragraph-4 of his judgment and, after taking the evidence let in by the parties into account, negative issues-1 to 4 and the suit of the plaintiffs was dismissed. The plaintiffs appealed and were successful in getting the trial court''s judgment reversed at the hands of the lower appellate court. Aggrieved by the said decision of the lower appellate court, the defendants are in appeal.
I have heard learned senior counsel Shri Yoganarasimha for the appellants-defendants and learned Counsel Shri Narendra for the respondents-plaintiffs and perused the records of this case.
The learned senior counsel for the appellants, at the outset, submitted that the plaintiffs do not claim any right of easement over the property of the defendants and no such right as claimed by the plaintiffs was in existence at any point of time and it is not the case of the plaintiffs that they were claiming right of way of easement of necessity but, on the other hand, the vacant space that was lying to the north of the defendants'' property belonged to the defendants'' vendor and, therefore, the plaintiffs ought to have aired grievance against the owner of the vacant space i.e., the vendor of the defendants, and not against the defendants. Apart from this, merely because in the southern boundary to the plaintiffs'' property it is mentioned that there is a road, that does not actually mean a road really exists. In order to establish existence of a road, there was no pleading nor any evidence let in by the plaintiffs to show that the road was in existence for a long time and that the plaintiffs were using the said road. Mere existence of some vacant space does not give rise to take the view that that vacant space is a road. Apart from this, it is also contended that, if the plaintiffs want certain vacant space to be declared as a road, it is for the appropriate authority under the Karnataka Municipalities Act, 1964 to consider declaring any street as public road and this is provided u/s 177 of the Karnataka Municipalities Act, 1964. Therefore, the trial court could not take upon itself the task of declaring any vacant space as road.
Nextly it is contended by the learned senior counsel that the lower appellate court committed an error in taking into account the Commissioner''s report. A close examination of the Commissioner''s report would go to show that the Commissioner has not properly identified the measurement and the Commissioner erred in drawing up the measurement from the wall of the house of one Narasimhamurthy and not from the boundary where the defendants'' property is situated. Therefore, there is error in the report of the Commissioner and the vacant space in between the defendants'' property and that of the plaintiffs actually does not measure 10 feet and even the lower appellate court has observed that there is encroachment by the plaintiffs as well and what is left as vacant space is hardly about 4 feet. This itself goes to show that no vacant space measuring 10 feet as mentioned in the plaint is in existence and, as such, the lower appellate court could not have granted the relief sought for by the plaintiffs. The evidence of the parties was also referred to in this connection and also to the reasoning given by the learned trial judge. If the Commissioner''s report is discarded, there remains nothing on record to show that 10 feet road exists in between the property of the plaintiffs and that of the defendants.
On the other hand, the learned Counsel for the respondents-plaintiffs supported the view taken by the lower appellate court and, referring to the evidence on record, it is argued that the defendants have also admitted that there is a pathway towards the north of the defendants'' property and the lower appellate court has rightly taken note of the Commissioner''s report and has found that the width of the road comes to 10 feet, which is also in accordance with the sale deed of the plaintiffs. Under these circumstances, the evidence appreciation by the trial court was not proper and the said defect was rectified by the lower appellate court by taking note of the admission made by D.W.I in particular. The learned Counsel referred to the evidence of D.W.I, which is incorporated at paragraph-44 of the judgment of the lower appellate court. It was also contended that the plaintiffs do not have any other access to go to Adlimane road and to this effect, there is an admission made by D.W.I. Under these circumstances, the existence of the road towards the north of the defendants'' property is established and, as such, the view taken by the lower appellate court does not call for any interference. In support of the said submission, the learned Counsel for the respondents also placed reliance on two decisions of the Apex Court reported in Joy Auto Works and Others Vs. Sumer Builders (P) Ltd. and Another, .
The learned Counsel for the respondents also submitted in the alternative that even if the space between the plaintiffs'' property and that of the defendants is less than 10 feet and if it is 2 feet, the plaintiffs are ready to compensate the defendants for permitting the plaintiffs to make use of that vacant space.
Having thus heard both sides, the substantial questions of law raised for consideration are, therefore, to be looked into at this juncture. This Court had raised the following substantial questions of law while admitting this appeal:
i) Whether the lower appellate court is justified in reversing the findings of the trial court based on the report of the Commissioner, when such a report was rejected by the trial court?
ii) Whether the reappreciation of evidence by the lower appellate court is perverse and has resulted in miscarriage of justice?
As far as the first substantial question of law is concerned, the trial court rejected the report of the Commissioner in toto because, the Commissioner''s report does not reflect the actual reality in the sense, the Commissioner, instead of measuring the vacant space that lies between the property of the plaintiffs and that of the defendants, took up the measurement from the wall of the house of Narasimhamurthy and, therefore, the trial court was of the view that the measurement of 6 feet and 4.4 feet indicated in the Commissioner''s report was in respect of the space lying between the properties of plaintiff-1 and the house of Laxminarayana. But, according to the defendants and their witnesses, there is only 4 to 6 feet open space in between the plaintiffs'' property and that of the defendants. The trial court also found that the Commissioner was not able to support the report as the Commissioner failed to disclose the basis for drawing the line between the house of Narasimhamurthy and the site of the defendants and, therefore, the trial court was of the view that the report of the Commissioner in respect of the measurement of defendants'' property suffers from the said defect and, as such, the measurement of the defendants'' property cannot be accepted.
Another reason for rejecting the report, of the Commissioner by the trial court was that, though the plaintiffs had taken up the stand that the defendants had encroached 9 feet of the road, the court Commissioner has not said anything about the encroachment by the defendants to the extent of 9 feet. Apart from this, the Commissioner, according to the trial court, was required to measure the disputed property viz., the vacant space between the properties of the plaintiffs and the defendants, and in the light of the admissions made by D.W.I and D.W.2, the trial court found that the width of the open space was also not uniform to deem the open space as road because, there is variation in the width of that space which ranges from 4 feet at one point to 4.4 feet at another point and 6 feet at yet another point. Ultimately, the trial court drew the conclusion that without measuring the property of Narasimhamurthy, the measurement of the defendants'' property is, therefore, incorrect.
It is on the basis of such a close examination, the trial court rejected the report of the Commissioner. But, on the other hand, the lower appellate court tried to make out a case for the plaintiffs by taking into account the vacant space whose width was not uniform and despite observing that, both the plaintiffs and the defendants have been responsible for reducing the width of the road, the lower appellate court goes on to hold that the width comes to around 9 feet, which is very close to the width of the road mentioned in the sale deed of the plaintiffs. The lower appellate court could not have embarked upon such an exercise but what was expected by the Commissioner was to find out the actual width of the vacant space, and the trial court has given valid reasons for not accepting the Commissioner''s report and the lower appellate court also, while observing that the plaintiffs have also encroached certain portion of the vacant space, therefore, could not have given any importance to the Commissioner''s report as the said report does not reflect the actual position as regards the extent of vacant space. Under these circumstances, the lower appellate court erred in accepting the Commissioner''s report.
As far as the second question of law raised is concerned, the lower appellate court failed to take note of the fact that there was no pleading on the part of the plaintiffs with regard to the existence of a road having the width of 10 feet and in view of the evidence of P.W.1 that except in the sale deed there is no other document to show that there exists a road to the south of the plaintiffs'' property and there is also no material placed to show that a load exists in the layout plan, the evidence, on the whole, is not convincing enough to take the view that 10 feet width road exists between the properties of the plaintiffs and the defendants.
The trial court has properly appreciated the evidence on record. But, the lower appellate court did not take into account the admission made by P.W. 1 in the course of his cross-examination which is to the effect that it was only at the instance of the plaintiffs that in the sale deed, the plaintiffs'' vendor indicated a road to the south of the plaintiffs'' property. The lower appellate court, therefore, erred in not appreciating the evidence in the proper perspective as there was no foundation laid by the plaintiffs in their pleadings about the existence of 10 feet road. The lower appellate court could not have given importance to the evidence of P.W.1 and apart from that, the entire evidence was analysed by the trial court carefully in the light of the Commissioner''s report and the trial court recorded a finding that no road having a width of 10 feet width existed in between the properties of the plaintiffs and the defendants and the lower appellate court also having observed in the course of its judgment at paragraphs-63 to 65 that there has been encroachment by both the parties and the width of the vacant space is not 10 feet, it could not have accepted the plaintiffs'' case that 10 feet road existed to the north of the defendants'' property.
The evidence has not been properly appreciated and to confirm this, it is also pertinent to observe at this juncture that the lower appellate court also has recorded a finding that the defendants are possessing 2.6 feet more than what they have under Ex.D-3. This itself shows that the lower appellate court also accepts that beyond the boundary of the defendants, there is only vacant space of 2.6 feet As such, the question of there being 10 feet width road beyond the boundary of the defendants'' property does not arise.
Thus, the lower appellate court, on its own observation, could not have accepted the case of the plaintiffs and could not have set aside the well-reasoned judgment, of the trial court. The finding recorded by the lower appellate court, therefore, is perverse and contrary to the evidence on record. As far as the rulings referred to by the learned Counsel for the respondents are concerned, they have no application to the case on hand on facts. The lower appellate court also erred in not taking note of Section 177 of the Karnataka Municipalities Act, 1964 which provision empowers the municipal authorities alone to declare any street as a public road. For all these reasons, the substantial questions of law raised are answered by holding that the lower appellate court could not have reversed the finding of the trial court when the report of the Commissioner was totally rejected by the trial court and the evidence appreciation by the lower appellate court is perverse,
In the result, the appeal is allowed and the judgment of the tower appellate court is set aside and that of the trial court stands restored.