A Court Can Grant Relief Of Perpetual Injunction For Exercising Of Easementary Right Over Property In Absence Of Declaratory Relief: Karnataka HC

The Karnataka High Court held that a court can grant the relief of perpetual injunction regarding exercising of easementary right over the property in the absence of even declaratory relief as well.

The Court held thus in a second appeal filed against the judgment and decree passed by the Principal Senior Civil Judge in a property dispute.

A Single Bench of Justice H.P. Sandesh observed, “The Court has to take note of the pleading found in the plaint and pleading is also with regarding to the exercising of easementary right. Even in the absence of declaratory relief, when the suit is filed for the relief of perpetual injunction that too restraining the defendant from causing obstruction, exercise of easementary right conferred upon the appellant in terms of the partition deed as well as by the usage by the family members. In the absence of even declaratory relief also, the Court can grant the relief of perpetual injunction with regard to the exercising of easmentary right over the suit schedule property.”

The Bench said that the court may grant injunction as substantial relief even without prayer for relief of declaration and that the declaration is implicit in grant of perpetual injunction, party seeking injunction to plead and prove his right, title and interest.

Advocate O. Shivaram Bhat represented the appellant while Advocate A Keshava Bhat represented the respondent.

Factual Background -

The plaintiff had filed the suit for the relief of permanent prohibitory injunction restraining the defendant, his men, servants, legal representatives or anybody claiming through or under him from in any way encroaching upon the plaint ‘C’ schedule roadway or from reducing its width or from blocking the plaint ‘C’ schedule property measuring 12 to 15 feet wide motorable roadway branching from the panchayat road namely Alankar to Kakve at place called Karthutelu and passing across the Sy.No.118/1 of Alankar village, Puttur taluk, D.K. and connecting the house of the plaintiff.

It was contended in the plaint by the plaintiff that he was the absolute owner of agricultural kadim warga land to the extent of 0.47 acres situated at Alankar village, Puttur taluk, D.K. amongst other lands which was acquired by virtue of a partition deed in 1988. It was further contended that both ‘A’ and ‘B’ schedule properties were in a compact block, enclosed by common physical boundaries like fencing and agalu. The plaintiff had raised vast agricultural improvements in both the plaint ‘A’ and ‘B’ schedule properties and he had also constructed a new residential house after the partition. The Trial Court allowed the parties to lead their evidence and then dismissed the suit of the plaintiff. Being aggrieved by this, the plaintiff preferred an appeal before the First Appellate Court but it also dismissed the same. Hence, he approached the High Court.

The High Court in view of the facts and circumstances of the case noted, “Declaration is implicit in grant of perpetual injunction, party seeking injunction to plead and prove his right, title and interest. This Court has observed that difference of language used in the Chapter VI and Chapter VII of the Specific Relief Act clearly reveals the intention of legislature. Had the legislature so intended that no suit for decree for injunction or possession should be entertainable unless plaintiff claims a formal decree for declaration of title the legislature would have so provided.”

The Court further observed that the suit for permanent injunction cannot be dismissed simply on the ground that relief for decree for declaration of title has not specifically been claimed or mentioned in plaint if the plaint shows that plaintiff’s claim for injunction is based on his title or right asserted in the body of the plaint in other words plaint makes it clear that the suit has been filed for establishing title of plaintiff and on that basis is seeking the decree for permanent injunction against defendant/appellant.

“It is emerged in the evidence that the appellant and respondent are direct brothers and before the partition of the year 1988, all of them were residing together and even after partition also, all of them have resided together till they constructed their house. The fact that the property also purchased in the year 1982 and all of them were using the said property by easement and easement of necessity and of prescription since there is no any alternative road. Hence, this Court comes to the conclusion that there is no alternative road. It is also clear that on perusal of Section 13 of the Easements Act, per se reveals that right of easement of necessity has been confined to cases of transfer and bequest of immovable property by one person to another or to cases where property is jointly owned and there is a partition made thereafter”, it said.

The Court added that the property was purchased in the year 1982 by the family and jointly owned and enjoyed and same was partitioned in the year 1988 and subsequently all of them were using the very same road and when such being the case, no doubt, the house was constructed in the year 1996 and in 2006, the suit was filed and though not completed 20 years and the usage of the road and the property for the enjoyment is from 1982 onwards by the family jointly when they were all together in joint family.

“When such being the case, the very contention of the respondent counsel that 20 years of prescription period is not over and said contention cannot be accepted. Apart from that when partition was taken place in the year 1988, there is a recital with regard to mamool exercising of easementary right, share of water, hence, the very document itself is very clear with regard to enjoyment of the property by all the joint family members. Hence, the contention of the respondent counsel cannot be accepted”, it also noted.

Accordingly, the High Court allowed the second appeal and set aside the impugned judgment.

Cause Title- T Venkatramana Bhat v. Subramanya Bhat

Appearance:

Appellant: Advocate Shivaram Bhat

Respondent: Advocates A Keshava Bhat and K. Shrikrishna

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