Easement rights can be established by necessity when no alternative access exists, and failure to consider material evidence can lead to reversal of a lower court's decision.

ORAL JUDGMENT

This appeal by the plaintiffs in O.S.No.6605/2014 is directed against the impugned judgment and decree dated 27.06.2019 passed by the XXIV Additional City Civil and Sessions Judge, Bengaluru City (CCH-6) (for short “the Trial Court”), whereby the said suit filed by the appellants-plaintiffs against the respondents- defendants for declaration, perpetual injunction and other reliefs, in relation to the suit schedule immovable property was dismissed by the Trial Court.

2. The brief facts giving raise to the present appeal are as under:

The appellants-plaintiffs instituted the aforesaid suit for declaration of their easementary rights in respect of the suit ‘B’ schedule property for the purpose of ingress and egress to and from schedule ‘A’ property from 80 feet vide RCDP BDA road abutting to the eastern boundary and for perpetual injunction restraining the defendants from interfering with easementary rights of plaintiff and other reliefs. The suit ‘A’ schedule property was claimed to be land bearing Sy.No.69/6 measuring 29 guntas situated at Sadaramangala village, Krishnarajapuram Hobli, Bengaluru East Taluk (converted land) having specific boundary with the eastern boundary, land bearing Sy.No.69/7. It was contended that the only means of ingress and egress was through ‘B’ schedule property which was a portion of the adjacent eastern property bearing Sy.No.69/7 measuring East to West 115 feet and North to South 40 feet, which was used for the purpose of access as well as ingress and egress to the ‘A’ schedule property and other adjoining property, which has been in existence right from the beginning and as such, since the respondents-defendants prevented from owning, possessing and enjoyment of ‘A’ schedule property and right of ingress and egress of right of way to the ‘A’ schedule property through ‘B’ schedule property, the appellants instituted the aforesaid suit against the respondents-defendants seeking the aforesaid reliefs.

3. The respondents-defendants entered appearance in the suit and filed their written statement disputing and denying the claim of the plaintiff over the ‘A’ schedule property. However, the respondents-defendants admitted that the appellants-plaintiffs were owners of Sy.No.69/6 and that the defendants-respondents were owners of the adjacent/abutting property bearing Sy.No.69/7. It was however contended that the appellants-plaintiffs did not have any Right of Easement over the ‘B’ schedule property and as such, the suit was liable to be dismissed.

4. On the basis of the aforesaid pleadings of the parties, the Trial Court framed the following issues:

“1. Whether the plaintiffs prove that they have got easementary right by way of necessity on Schedule ‘B’ property as contended by them?

2. Whether defendants prove that plaintiffs’ schedule A property has an alternative approach road?

3. Whether plaintiffs are entitled for reliefs of declaration as prayed?

4. Whether plaintiffs are entitled for relief of injunction as prayed?

5. What order or decree?

5. During the course of trial, the power of attorney hold of plaintiff No.1 was examined as PW.1 and one witness as PW.2 and got marked documentary evidence as Exs.P-1 to 47. On behalf of the defendants, the authorised representative of defendant No.1 was examined as DW.1 and got marked documentary evidence as Exs.D-1 and 2.

6. The Trial Court proceeded to hear the parties and dismissed the suit of the plaintiff by passing the impugned judgment and decree, which is assailed in the present appeal.

7. Heard learned counsel for the appellants and perused the material on record.

8. The respondents-defendants having been served with notice of the appeal, they have chosen to remain unrepresented and have not contested the appeal.

9. The following points arise for my consideration in this appeal:

"(i) Whether the Trial Court was justified in coming the conclusion that the appellants-plaintiffs were owners of ‘A’ schedule property, who were not entitled to easement right