Easements require clear evidence of necessity; failure to establish alternative routes validates the easement claim.

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: 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.

 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.

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 themse