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2025 Supreme(Online)(KAR) 2978
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
R.NATARAJ, J
VIJAYAKUMAR MALLIKARJUN DONI – Appellant
Versus
RAGHUNANDAN KENCHANAGOUDA SIRDESAI – Respondent
WRIT PETITION NO. 201643 OF 2021 (GM-CPC)
For the Appellants/Petitioners: D. P. AMBEKAR
For the Respondents: SHIVAKUMAR KALLOOR
An easement granted by compromise decree cannot be extinguished by subsequent sale of property; it remains valid unless specifically revoked according to provisions of the Indian Easements Act.
Headnote:(A) Indian Easements Act, 1882 - Sections 59 and 61 - Suit for declaration regarding property rights and interim injunction - Appellate Court's finding that the right granted by defendant No.1 to defendant No.2 was an easement by way of grant and not merely a license, was upheld. The interim injunction order from the Trial Court was restored. (Paras 5, 6, 9)
(B) Appeal - The scope of review in appellate jurisdiction does not extend to reconsidering the factual position afresh unless the findings are perverse or illegal. (Paras 8, 9)
Facts of the case:
The plaintiffs sought to challenge an appellate order allowing an appeal that set aside an interim injunction granted to them regarding property claimed by defendant No.2 under an earlier compromise decree. Key issues included whether the right of way created was an easement or merely a license.
Findings of Court:
The right created was determined to be an easement rather than a license, and the interim injunction in favor of the plaintiffs was restored.
Issues: The primary question was the nature of the right granted to the defendant No.2 and whether it was extinguished by the sale of the property.
Ratio Decidendi: The court held that the earlier compromise granted an easement by way of grant, which could not be withdrawn simply by the sale of the property by the grantor.
Result: Writ petition allowed; order of the Appellate Court set aside and the Trial Court’s injunction restored.
| Table of Content |
|---|
| 1. jurisdiction and nature of parties involved. (Para 1 , 2) |
| 2. overview of past litigations and claims. (Para 3) |
| 3. steps taken by parties regarding rights. (Para 4) |
| 4. arguments about easement vs. license. (Para 5 , 6) |
| 5. court's analysis of legal issues. (Para 7 , 8) |
| 6. final order restoring trial court's decision. (Para 9 , 10) |
ORAL ORDER
(PER: HON'BLE MR. JUSTICE R.NATARAJ)
The petitioners who are the plaintiffs in O.S.No.362/2015 on the file of the I Additional Civil Judge and JMFC - I, Vijayapura (henceforth referred to as 'Trial Court' for short) have filed this writ petition challenging the correctness of an order dated 22.07.2021 passed by the IV Additional Senior Civil Judge, Vijayapura (henceforth referred to as 'Appellate Court' for short) in M.A.No.44/2016 by which, the appeal was allowed and order of interim injunction granted by the Trial Court on 21.10.2016 was set aside.
2. The suit in O.S.No.362/2015 was filed for declaration that the decree passed in O.S.No.297/2002 on the file of the I Additional Civil Judge (Jr.Dn.), Vijayapura dated 24.09.2022 in respect of the property bearing No.CTS NO.193/A1/G1 of Ward No.VI Vijayapura is inexecutable and also sought for a decree of declaration that the right accrued to the defendant No.2 under the document dated 14.08.2022 stood extinguished. Consequently, a decree of perpetual injunction was also sought to restrain the defendants from claiming any right of way in the suit property.
3. (i) The plaintiffs contended that the defendant No.1 was the owner of CTS No.193/A-1/G-1 measuring 30 ft x 150 ft which fell to his share under a partition decree in O.S.No.25/1990 on the file of Civil Judge Senior Division, Bagalkot. The defendant No.2 had filed O.S.No.297/2002 for perpetual injunction against the defendant No.1 to restrain him from obstructing the peaceful use of the aforesaid land as an easement to reach the main road and for mandatory injunction to remove the construction wall at point 'C' and 'D'. The said suit was compromised and a decree was passed on 24.09.2002. As per the decree, the defendant No.2 was given right to pass over the land to reach his property bearing No.193/A-2 and CTS No.193/A-3 and 194/A-4. A registered instrument was also executed on 14.08.2002 by the defendant No.1 in favour of the defendant No.2 permitting the defendant No.2 to walkover the land bearing No.193/A-1/G-1.
(ii) The defendant No.1 challenged the said document dated 14.08.2022 in a suit filed in O.S.No.430/2002.
(iii) During the pendency of the suit, the defendant No.1 sold the property bearing No.CTS No.193/A-1/G-1 in favour of the plaintiffs on 20.11.2004 in terms of two sale deeds. Therefore, the defendant No.1 filed a memo in O.S.No.430/2002 that he did not press the suit and accordingly, the suit was dismissed as not pressed. The defendant No.2 then filed O.S.No.364/2004 for declaration that he has a right of easement by prescription over the suit property and sought for perpetual injunction to restrain the plaintiffs from putting up any construction. The defendant No.2 also filed O.S.No.103/2002 against the plaintiff No.2 for declaration that the property bearing CTS No.193/A/A-1/G-1 was reserved for the common use as a way to approach CTS No.193/A-1, 193/A-2 and 193/A-3 and CTS No.194A. The said suit was dismissed as not pressed on 19.11.2013. The plaintiffs therefore contend that the defendant No.2 gave up his right of way by withdrawing O.S.No.103/2002.
(iv) Later the defendant No.2 filed execution petition 5/2023 pending on the file of I Additional Civil Judge, Jr.Dn. Vijayapura against the defendant No.1 to execute the compromise decree in O.S.No.297/2002 and for an order directing the defendant No.1 to dismantle CD wall as shown in the sketch attached to the plaint. The defendant No.1 who had purportedly sold western half portion in favour of plaintiff No.1 and eastern half portion in favour of plaintiff Nos.2 to 6, had no subsisting right and the permission grante
