Full Judgment Text
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30 th DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.569 OF 2013 (DEC/INJ) BETWEEN: 1. SMT. TUNGAMMA, W/O PATEL HANUMATHAPPA, AGED ABOUT 71 YEARS, APPELLANT NO.1 DEAD, APPELLANT NO.2 TO 6 ARE TREATED AS LR'S OF THE - DECEASED APPELLANT NO.1. 2. G H VERANA GOUDA, S/O PATEL HANUMATHAPPA, AGED ABOUT 44 YEARS, 3. G RUDRA GOUDA, S/O PATEL HANUMATHAPPA, AGED ABOUT 42 YEARS PROFESSION: ADVOCATE R/O NO.249, 8 TH CROSS, "B" BLOCK, DEVRAJ URS LAYOUT, DAVANAGERE - 577006. APPELLANTS NO.1 TO 3 ARE THE R/O GUDDADA BEVINAHALLI VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT, PIN - 577530. 4. SMT SAVITRA W/O RUDRAPPA, AGED ABOUT 50 YEARS. 5. SMT SARALA, W/O JAYARAJ, AGED ABOUT 46 YEARS R OCC: HOUSEWIFE APPELLANTS NO.4 AND R5 ARE THE R/O KODI CAMP TARIKERE, CHICKMAGALORE DISTRICT -577228. 6. H ANAND, S/O HALAPPA, AGED ABOUT 36 YEARS, OCC: AGICULTURIST R/O GUDDADA BEVINAHALLI VILLAGE, HARIHARA TALUK DAVANAGERE DISTRICT, AND PERMANENT R/O HALLIKERE VILLAGE, BHADRAVATHI TALUK - 577301, SHIMOGA DISTRICT. ...APPELLANTS (BY SRI V B SIDDARAMAIAH, ADVOCATE FOR APPELLANTS 2 TO 6, A2 TO A6 ARE TREATED AS LRS OF DECEASED A1) AND: 1. SMT SEETHAMMA, W/O LATE SHEKARAPPA, AGED ABOUT 66 YEARS, 2. SRI MANJUNATHA, S/O LATE SHEKARAPPA, AGED ABOUT 41 YEARS, 3. SRI BASAVARAJ, S/O LATE SHEKARAPPA, AGED ABOUT 40 YEARS, 4. SRI MURIGESH, S/O LATE SHEKARAPPA, AGED ABOUT 38 YEARS DEAD BY LR'S R4(1) SMT ASHA, W/O LATE MURIGESH, AGED ABOUT 45 YEARS, R4(2) SRI SANTHOSH, S/O LATE MURIGESH, AGED ABOUT 23 YEARS, R4(3) SRI SRUJAN, S/O LATE MURIGESH, AGED ABOUT 20 YEARS, ALL ARE R/AT GUDDADA BEVINAHALLI VILLAGE - 577530, HARIHARA TALUK, DAVANAGERE DISTRICT. 5. SMT GEETHA, D/O LATE SHEKARAPPA, AGED ABOUT 36 YEARS R/O #204/02, 2 ND MAIN 7 TH CROSS, VINOBANAGAR DAVANAGERE - 577003. 6. SRI MUNIYAPPA, S/O LATE SHEKARAPA, AGED ABOUT 34 YEARS, AGRICULTURIST, DEAD BY HIS LRS 6(a) SMT GOWRAMMA, W/O LATE MUNIYAPPA, AGED ABOUT 35 YEARS, 6(b) MASTER BHARATH, S/O LATE MUNIYAPPA, AGED ABOUT 8 YEARS, 6(c) KUMARI BINDU, D/O LATE MUNIYAPPA, AGED ABOUT 6 YEARS, RESPONDENTS NO.6(b) & (c) ARE MINORS, REP. BY THEIR NATURAL GUARDIAN MOTHER RESPONDENT NO.6(a). RESPONDENTS 1,2,3,4 AND 6(a) to (c) ARE R/O GUDDADA BEVINAHALLI VILLAGE - 577530, 4 HARIHARA TALUK, DAVANAGERE DISTRICT. ...RESPONDENTS (BY SRI D P MAHESH, ADV. FOR C/R1 TO R3, R4(1-3), R5, R6(a) - SERVED, R6 (b & c ARE MINORS REP. BY R6(a)) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 6.12.2012 PASSED IN R.A.NO.57/2007 ON THE FILE OF SENIOR CIVIL JUDGE, HARIHAR, DISPOSING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 23.7.2007 PASSED IN OS.NO.161/1999 ON THE FILE OF CIVIL JUDGE (JR.DN.) & JMFC, HARIHAR. THIS RSA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 31 ST JULY, 2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE CAV ORDER This appeal is filed challenging the concurrent judgments and decrees for injunction, and the divergent judgment and decree of First Appellate Court, granting a declaration which was declined by the Trial Court. Thus, the defendants have filed second appeal. 2. The suit is for declaration, permanent injunction, and a mandatory injunction. The plaintiff sought a declaration of right of way described in the 'B' schedule 5 property. The plaintiff described the 'B' schedule property as the road measuring 12 feet in width. It is shown as "AICDB" in the sketch appended to the plaint. 3. The plaintiff claims that the said road passes through the land of the defendants and is necessary for the plaintiff to reach the Panchayat road from his residential house located in the suit 'A' schedule property. The claim is based on the registered sale deed dated 04.08.1980 (Ex.P1) executed in favour of the plaintiff, by the predecessor in title of the defendants. 4. The execution of the sale deed is not denied by the defendants. However, the defendants pleaded ignorance of the sale deed dated 04.08.1980. The claim relating to the right of way is denied. 5. Defendants contend that, adjacent to the property bearing Sy.No.42, i.e., suit 'A' schedule property, there is a passage on the eastern side, in Sy.No.43, part of which is owned and possessed by the plaintiff, leading to the Panchayat road. 6. Defendants contend that the entire suit 'B' schedule property is in their possession, and the claim relating to the easement is disputed. Defendants also did not admit the correctness of the sketch appended to the plaint. In substance, defendants have denied the existence of the suit road in toto. The Trial Court has framed 6 issues. 7. Issue No.1 relates to the ownership of 'A' schedule property, which in fact is not in dispute. Issue No.2 relates to the use of the 'B' schedule property. Issue No.3 relates to the easement to use the 'B' schedule property. 8. The Trial Court has concluded that the suit road is in existence and granted an injunction holding that the plaintiff has the right to use the 'B' schedule property for the beneficial enjoyment of the property sold under the sale deed. 9. The Trial Court has held that the plaintiff has acquired an easement of necessity under Ex.P1, but did not specifically grant the relief of declaration.. 10. Defendants filed an appeal against the aforementioned judgment and decree. The plaintiff did not 7 question the decree declining the relief of declaration sought in respect of the suit 'B' schedule property. 11. First Appellate Court dismissed the appeal and granted relief of declaration in addition to confirming the decree for injunction. 12. The Court vide order dated 19.06.2013 has framed the following substantial questions of law: (i) Whether the Courts below are justified in granting the relief of right of way over the "B" schedule property, without making a finding that whether the plaintiff has acquired/got the right of easement of necessity or prescription as contemplated under Easement Act? (ii) Whether Lower Appellate Court is justified in granting decree of declaration in a appeal filed by the defendants, in the absence of the appeal/cross appeal by the plaintiff, by exercising power under Order 41 Rule 33 of C.P.C., which is complete inconsistent and when the plaintiff has chosen to raise a arguments at the time of hearing the appeal and he has not given sufficient explanation that why he had not preferred the appeal or cross objection, further when court fee is not paid 8 for the granted relief of declaration in the appeal?" 13. After hearing the learned counsel appearing for the defendants/appellants who also raised a contention relating to extinction of easement under Sections 13, 41 and 43 of the Indian Easements Act, 1882 (for short 'Act, 1882), the Court also felt one more substantial question of law is required to be framed regarding alleged extinction of easement. Hence, the parties were permitted to address the arguments on the question; "Whether the appellants establish extinction of easement under Sections 41 and 43 r/w Section 13 of the Act, 1882?". 14. Learned counsel for the appellants raised the following contentions: (a) Easement which is alleged to have been created/granted under the sale deed dated 04.08.1980 gets extinguished because of change of use of the property. (b) The property sold by the predecessor of the defendants was an agricultural land, and the purchaser/plaintiff converted it for non-agricultural use. As 9 per the illustration in Section 13 of the Act, 1882, the right to use the easement is available only when the property is used for agricultural purposes and such right ceases when the nature of use changes. Since the property is converted for non-agricultural use, the easement, if any, created under the sale deed gets extinguished. 15. Learned counsel would refer to Section 41 of the Act, 1882, which reads as under: "41. Extinction on termination of necessity.- An easement of necessity is extinguished when the necessity comes to an end". 16. Learned counsel would also refer to Section 43 of the Act, 1882, to contend that easement if any, in favour of the plaintiff is extinguished. 17. Learned Counsel for the plaintiff would also submit, pointing to the Court Commissioners report, where it is stated that the property of the plaintiff and defendants is separated by a fence. In the plaint, the plaintiff has not specified when the access is closed, and relief of mandatory injunction without specific particulars relating to the closure of the road is not tenable. 18. Learned counsel would urge that First Appellate Court could not have granted relief of declaration, which was declined by the Trial Court, in the absence of any appeal or objection. 19. Learned counsel for the respondents would submit that the execution of the sale deed dated 04.08.1980 is established. The vendor did not question the sale deed, and the plaintiffs right to use the road mentioned in the sale deed. Thus, the defendants, being the descendants of the vendor, cannot question the sale deed. The sale deed makes a specific reference to 12 feet road to reach the property purchased by the plaintiff, and said road is necessary to reach the Panchayat road. The alleged road, which is suggested by the defendants, allegedly passing through Sy.No.43 is not in existence. Even if it is found to be in existence, is passing through the land of others and is not convenient to the plaintiff to reach the Panchayat road. 20. Learned counsel would also urge that no case is made out for the extinction of the easement granted under the sale deed dated 04.08.1980 in favour of plaintiff by taking necessary plea in the written statement. 21. Learned counsel for the respondents submits that First Appellate Court is justified in granting the relief of declaration as the finding on Issue No.3 by the Trial Court in favour of the plaintiff is virtually the relief of declaration, though it is not specifically reflected in the operative portion of the decree passed by the Trial Court. Since the Trial Court has concluded that the suit road is in existence and the plaintiff has a right to use the suit road as per the covenant made in the sale deed dated 04.08.1980, the relief of declaration is deemed to have been granted and First Appellate Court by granting a relief of declaration has only clarified the effect of the decree passed by the Trial Court and same is not inconsistent with the decree passed by the Trial Court. 22. The Court considered the contentions raised and perused the records. 23. The plaintiff claims the right over the 'B' schedule-12 feet road under the registered sale deed dated 04.08.1980. Execution of the sale deed dated 04.08.1980 in favour of the plaintiff is established, and the same is not 12 disputed in this appeal. The Court has to refer to the sale deed dated 04.08.1980 in first instance. 24. The last sentence in the sale deed after describing 12 guntas in Sy.No.42 sold by the vendor Karadevarappa Hanumantappa reads as under: "F dAAUE A2NaAA QIAegAAaA AA dAAAzA gAA aAiAaAAA oAEgAqAA Cr zAj aArPE EzE." 25. There is no difficulty in concluding that a road measuring 12 feet in width was in existence when the A schedule property was sold by the predecessor of the defendants in favour of the plaintiff. 26. The question is whether this road is meant for the use of the plaintiff-purchaser. 27. If the road was not meant for the use of the purchaser, then there was no need to recite about 12 feet road to reach the property sold by the predecessor of the defendants. 28. Prima facie , the logical inference coming from the said recital in the said sale deed is that the vendor has conferred and recognised the plaintiffs right to use 12 feet 13 road to reach the property sold to the purchaser-plaintiff. If it is otherwise, or in other words, if the defendants were to take a contention that the said recital did not confer any right to use 12 feet road, then the defendants must come out with a proper explanation as to why the said recital in the sale is incorporated and what it actually conveyed. There is no such explanation in the written statement. In the written statement, the defendants pleaded ignorance about the sale deed. 29. Learned counsel for the appellants would attempt to distinguish the expression, "dari vadike" found in the sale deed from the expression "vadike dari" the expression which is not in the sale deed. 30. According to the learned counsel, the expression "dari Vadike" means a way/passage for occasional use and not for regular use, and the expression "vadike dari" would mean a road/passage for regular use . By attempting to find out a distinction between these two expressions, the learned Counsel would urge that the expression dari vadike in the sale deed does not confer easement. 31. The word "vadike" in Kannada would mean 'usage'. Thus, the expression "dari Vadike" found in the sale deed would only mean the 'road/passage in use'. The expression "vadike dari", which is not found in the sale deed, does not convey any different meaning than what is conveyed through the expression "dari vadike". The Court is of the view that both expressions convey the same meaning. All that can be said about the recital in the sale deed is that the vendor acknowledged the existence of the road to reach the property conveyed. 32. There is one more reason to arrive at such a conclusion. The boundaries mentioned in the sale deed wherein 12 guntas of the 'A' schedule property is conveyed to the plaintiff are as under: East: Property of Rudrappa Gowda West: The Remaining portion of the vendor North: Property of Siddappa South: Property of Kotrappa Gowda 33. The boundaries do not refer to the road in any of four directions. The only sentence in the sale deed which 15 refers to the right of way or access to the property sold is the last sentence in the sale deed which is already referred to and discussed above. 34. From the said recital, it is evident that the property of the vendor is on the western side of the property sold to the plaintiff-purchaser. And there existed 12 feet road to reach the property sold, from the property retained by the vendor-which is on the western side of the property sold. Thus, there is no difficulty in holding that 12 feet road in the property bearing Sy.No.42 was in existence when the property was sold to the plaintiff and the said sale deed recognizes the said 12 feet road to reach to the property, which is conveyed under the sale deed dated 04.08.1980. 35. The plaintiff has not claimed an easement of prescription. There is no pleading relating to the easement of prescription. In the impugned judgments, it is not held that the plaintiff has acquired an easement of prescription. Thus, the contention that the pleading does not specify as to whether it is an easement of necessity or prescription does not assume much importance, as the right which is claimed is based on the deed executed by the defendants 16 predecessor in title and the plaintiff has averred that the suit road is essential to reach the suit 'A' schedule property. 36. Learned counsel for the appellants would urge that before the Trial Court, the Court Commissioner was appointed, and he has submitted a report which revealed that the suit road as claimed by the plaintiff in the plaint, hand sketch was not in existence when the Commissioner visited the suit property. 37. It is also his further submission that the Commissioner has recorded a finding that the plaintiff has access to the public road through a road passing through Sy. No.43, in which the plaintiff also has a share. 38. In addition, learned counsel would also submit that this Court has appointed the Court Commissioner to submit the report after making a spot inspection. The advocate Commissioner who inspected the suit property has given a finding that the road as claimed by the plaintiff is not in existence; as such, the decree granting the relief of declaration of easement over the suit 'B' schedule property is erroneous. 39. Learned counsel for the respondents would submit that the plaintiff has also sought a mandatory injunction, and even if the report says that the road is closed or the road is not in existence, the defendants are under an obligation to remove the obstruction and to provide access to the plaintiff under the road mentioned in the sale deed. 40. Whether the plaintiff is entitled to access to the road is dependent on the proof of the existence of the road and the right conferred under the sale deed. 41. As already noticed, the right to use 12 feet road in the property belonging to the vendor is established. The question is, "Whether the road was in existence as on the date of the suit?" 42. In the plaint, it is averred that the road is in existence and the defendants are making a hurried attempt to close the road; consequently, the defendants also sought a mandatory injunction to remove the obstruction. 43. It is not the defence that the road was in existence when the property was sold, and it was closed three years before the filing of the suit. The defence is that 18 of total denial . The existence of road and extinction of easement is also not pleaded in the alternative. The contention relating to total denial of the existence of the road is not proved, as the Court has concluded that the road is very much recognised in the sale deed dated 04.08.1980 executed by the predecessor in title of defendants. 44. This being the position, the defendants cannot take a contention that the road was closed three years before the filing of the suit, and as such, the suit is not maintainable as it was not in existence three years before the suit. Had they taken a defense that the road was in existence and it was not used for any of the reasons and it was closed by the defendants and the suit is filed many years after or three years after the closure of the said road, on account of availability of alternative road, the Court could have considered whether decree can be granted when the road was not in existence three years before filing of the suit. Such a question does not arise as the defendants have not raised a contention relating to the closure of the road three years before filing the suit. Hence, for this reason, the Court is of the view that whether the road existed on the 19 date of the suit is of little consequence, as the plaintiff has sought a mandatory injunction by making an averment that the road is in existence and the defendants are attempting to close the road. 45. Though the defendants also argued that the way in which 12 feet road is projected in the hand sketch is not established, the Court cannot attach much importance to the said technical contention as the defendants have not come out with a plea as to pattern or contours of the said road recognized in the sale deed executed by the predecessor of the defendants. Since, sale deed establishes the existence of the road, the Court is of the view that the existence of the road to reach the house of the plaintiff in the property conveyed under the sale deed dated 04.08.1980 is established. 46. The next question is "whether the easement is extinguished as urged?" 47. Reference is made to an illustration under Section 13 of the Act, 1882. The illustration would indicate that when the owner sells the property used only for agricultural 20 purposes and if the said property is inaccessible except by passing over the adjoining land of the vendor, then the purchaser is entitled to use the access for agricultural purposes only. It is not the case of the defendants that the property was used only for agricultural purpose. The sale deed does not contain a recital to hold that the right of way is recognised only in case the property sold is used for agricultural purposes. Thus, the conversion of land measuring 12 guntas for non-agricultural use and thereafter, the construction of a residential house by the plaintiff does not take away the right to use the road recognised under the sale deed dated 04.08.1980. This is more so in the present set of facts of the case, as there is no such plea in the written statement that because of change in the use of the property by the plaintiff, the burden on the servient heritage has increased and easement is extinguished. 48. Learned counsel for the defendants/appellants has also referred to Section 41 of the Act, 1882 to contend that the easement of necessity comes to an end when the necessity comes to an end. The illustrati on to the said provision reads as under: 21 " A grants B a field inaccessible except by passing over A 's adjoining land. B afterwards purchases a part of that land, which he can pass to his field. The right of way over A 's land, which B had acquired, is extinguished" 49. From the said illustration, it is apparent that when a person transfers by way of grant a piece of immovable property to another and the access to the said property is only through the land of the grantor , the purchaser has the right to use such access. Such a right gets extinguished when the grantee purchases that land through which he has access to the property granted. To put it differently , Section 41 of the Act, 1882 recognises the need based and necessity centric easement getting extinguished once absoluteness of necessity wanes out. 50. In the instant case, the easement in favour of the plaintiff is not extinguished as the plaintiff has not acquired any new access, after he acquiring the suit property under the sale deed dated 04.08.1980. The property bearing Sy.No.43 in which the defendants are pointing a road to the plaintiff was already with the plaintiff even before he purchased the dominant heritage. Despite plaintiff 22 possessing Sy.No.43 or any part of it, when the plaintiff purchased portion of Sy.No.42, the vendor (defendants predecessor) conveyed or recognised the right to use 12 feet passage/road in Sy.No.42. Thus, the Court is of the view that defendants have failed to make out a case to attract Section 41 of the Act, 1882. Section 41 of the Act, 1882 can be invoked if the owner of the dominant heritage acquires the servient heritage over which he exercised easement. 51. Reference is also made to Section 43 of the Act, 1882 to contend that right over 12 feet road is extinguished. Section 43 of the Act, 1882 reads as under: " 43.Extinction by permanent change in dominant heritage.- Where, by any permanent change in the dominant heritage, the burden on the servient heritage is materially increased: easement, the easement is extinguished, unless (a) it was intended for the beneficial enjoyment of the dominant heritage, to whatever extent the easement should be used; or (b) the injury caused to the servient owner by the change is so slight that no reasonable person would complain of it; or (c) the easement is an easement of necessity. 23 Nothing in this section shall be deemed to apply to an easement entitling the dominant owner to support of the dominant heritage." 52. Section 43 serves two purposes: (i) It provides as to when the easement extinguishes. (ii) And in terms of clauses (a) to (c), it also provides as to when the easement does not extinguish. 53. In other words, clauses (a) to (c) of Section 43 of the Act, 1882, are like exceptions to first part of the provision which deals with a situation when the easement extinguishes. 54. To hold that easement is extinguished by applying Section 43 of the Act, 1882, - (i) The servient owner must establish that, the nature of permanent change in the dominant heritage is of such a nature that it has materially increased the burden on the servient heritage and (ii) such burden cannot be reduced without servient owner interfering with the lawful 24 enjoyment of the easement by the owner of dominant heritage 55. If the holder of dominant heritage brings home the aspects enunciated in Section 43 of Act, 1882, he can protect his easement. 56. To protect the easement, the owner of dominant heritage must establish that, (a) the easement conferred is of any extent, or (b) that the injury caused to the servient owner is so little that any reasonable man would not complain of such injury, or (c) The easement is of easement of necessity. 57. In the instant case, the defendants have not pleaded that because of subsequent change in the use of property by the dominant owner, the use of road referred to in the sale deed changed drastically and burden on the servient owner has increased to such an extent that it cannot be reduced without interfering with the lawful use of easement. 58. The defence available under Section 43 of the Act, 1882 is a defence based on fact. The facts attracting Section 43 must be pleaded and proved. The increased burden on the servient heritage cannot be presumed. In the absence of pleading attracting Section 43 of the Act, 1882, one cannot conclude that the conversion of agricultural land into non-agricultural land itself, by the plaintiff, has affected the right to use the road under the sale deed dated 04.08.1980. Hence, the contentions based on Sections 41 and 43 of the Act, 1882, do not come to the aid of the defendants/appellants. 59. Since, the contentions relating to extinction of easements are mixed questions of law and fact, the person raising such contentions must admit the existence of easement at one point of time and must plead necessary ingredients to attract Sections 41 and 43 of the Act, 1882. If the easement is not admitted, then atleast in the alternative must aver facts attracting Sections 41 and 43 of the Act, 1882. In the instant case, the defendants have failed to plead and prove the contentions relating to Sections 41 and 43 of the Act, 1882. 60. Assuming that Section 43 is attracted, then from the recital in the sale deed dated 04.08.1980, it appears that Clause (a) and Clause (c) of Section 43 of the Act, 1882 are attracted. In such an event, the easement or the right to use the road is not extinguished. 61. Now the question is, "Whether the appellants have made out a case that there could not have been a declaration granted by First Appellate Court without there being a cross appeal by the plaintiff?" 62. Learned counsel for the appellants has relied on the judgment of the co-ordinate Bench of this Court in Sri V. Dhayaian vs Sri Muniswamy and Another 1 to substantiate his contention. 63. The Court has considered the said judgment. It is noticed from the said judgment that in exercise of power under Order XLI Rule 33 of the Code of Civil Procedure, the Court cannot grant the relief in the absence of an appeal or cross-objection in every suit. However, when the relief granted in the absence of any appeal or cross objection is 1 ILR 2009 Kar 4527 27 not inconsistent with the relief already granted, then, such exercise of power under Order XLI Rule 33 of the Code of Civil Procedure, is permissible. 64. In the instant case, the Trial Court has granted an injunction after recording a finding on issue No.3. 65. Issue No.3 reads as under: "3.whether the plaintiff proves that his vendor has sold "A" schedule property to him along with right of way over the "B" schedule property and he has perfected his right of way over "B" schedule property as easementary right?" 66. Finding on Issue No.3 reads as under: "3. I hold that the plaintiff proved that his vendor has sold "A" schedule property and made provision to make use and enjoy suit schedule "B" property by making recital in the sale deed, for beneficial enjoyment of property sold under Ex.P1, and he has perfected right of way over suit schedule "B" property by way of easement of necessity." (Emphasis supplied) 67. Thus, the Court has held that the plaintiff has easement over the 'B' schedule property. The plaintiff has also sought relief of a declaration that he has the right to use the 'B' schedule property as a road. The formal declaration, which is sought in the plaint, is not granted. 68. First Appellate Court has granted a relief of declaration that the plaintiff has the right to use the road without there being a separate appeal or cross objection by the plaintiff. Such a declaration granted by First Appellate Court cannot be said to be inconsistent with the relief already granted, i.e. relief of injunction, which is based on the right to use the road proved in terms of finding on Issue No.3 which issue is on proof of easement of necessity . In fact such declaration granted by First Appellate Court, is in aid of the decree for injunction, is implicit in the decree for injunction, if the nature of relief sought and facts of the case are borne in mind. 69. Assuming that such a declaration could not have been granted by First Appellate Court in the absence of a formal cross appeal or formal appeal or cross objection, still the relief of declaration granted in favour of the plaintiff 29 recognizing his right to use the road under the sale deed takes care of the plaintiff's interest and imposes an obligation on the defendants to allow the plaintiff to use the suit road. 70. That being the position, the Court is of the view that the declaration granted by First Appellate Court cannot be said to be one without jurisdiction under Order XLI Rule 33 of the Code of Civil Procedure but is in sync with object and underlying principle of Order XLI Rule 33 of the Code of Civil Procedure. 71. For the reasons recorded above, the Court does not find any reason to interfere with the decree passed by First Appellate Court granting the declaration which is more in the nature of clarification or in aid of the relief of injunction granted making the decree for injunction more explicit than what it appears from a cursory perusal. 72. As far as the contention that the road which is claimed is not in existence, it is to be noticed that the plaintiff has also sought a mandatory injunction. Once the right to use the road is established and the obstruction is 30 established, in the absence of a specific plea that road is closed three years before the filing of the suit, suit for mandatory injunction cannot be dismissed on the premise that the existence of the road as on the date of suit or as on the date of the Commissioner's spot inspection is not established. 73. As already discussed, the Court has noted that the defendants have not contested the case on the premise that the road was closed three years before filing the suit. 74. Though learned counsel for the appellants has tried to make out a case that one more road is available to the plaintiff to reach the Panchayat road from his property bearing Sy.No.43, the Court is of the view that the sale deed dated 04.08.1980 did not confer the right to use the road on a condition that such right is available till the alternative road is found. The extinguishment of easement under Sections 41 or 43 of the Act, 1882, can be recognised only in the situation contemplated under Sections 41 and 43. Since no such situation is brought out in the pleading and evidence, the Court cannot interfere in the impugned judgment and decree passed by the Trial Court. 75. However, learned counsel for the defendants/ appellants has brought to the notice of the Court that the suit road is shown up to the northern edge of the property sold to the plaintiff. It is his contention that the recital in the sale deed does not indicate that the plaintiff has right of way throughout the western boundary of the plaintiff's property and up to the northern edge of the property purchased by the plaintiff. 76. At this juncture, it is necessary to refer to Section 22 of the Act, 1882 and illustrations to it. Same reads as under: " 22.Exercise of easement. Confinement of exercise of easement.- The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined. Illustrations (a) A has a right of way over B's field. A must enter the way at either end and not at any intermediate point. 32 (b) A has a right annexed to his house to cut thatching grass in B's swamp. A, when exercising his easement, must cut the grass so that the plants may not be destroyed." 77. On a reading of Section 22 of the Act, 1882, it is evident that the dominant owner has to exercise his easement in a least onerous way or that it imposes minimum inconvenience to the servient owner. 78. It is also noticed from the sketch appended to the plaint that the entrance to the plaintiffs property is located at midway on the western boundary of plaintiffs property. 79. This being the position, the Court is of the view that the plaintiff is entitled to easement up to the entrance to the property of the plaintiff as shown in the sketch appended to the plaint, and the plaintiff is not entitled to any easement in respect of the area adjacent to the 'A' schedule property, to the north of the entrance shown in the sketch appended to the plaint. 80. 12 feet width road is recognised from the Panchayat road through the land of the defendants only up 33 to the entrance of the plaintiff's property and not beyond the said entrance on the northern side. 81. For the aforementioned reasons, substantial questions of law are answered accordingly. 82. Since the plaintiff has also sought mandatory injunction before the Trial Court claiming that the defendants have put a fence over the 'B' schedule property, the defendants are directed to remove the obstructions if any in the suit road recognised in paragraphs No.73 and 74. 83. Hence, the following: ORDER (i) The Second Appeal is allowed-in-part . (ii) Judgment and decree dated 06.12.2012 in R.A.No.57/2007 on the file of Senior Civil Judge, Harihara are modified. (iii) The Judgment and decree dated 23.07.2007 in O.S.No.161/1999 on the file of Civil Judge (Junior Division) Harihara are modified. (iv) The suit of the plaintiff is decreed in part. (v) It is declared that the plaintiff has right of 12 feet way in the suit 'B' schedule property 34 upto the entrance of the plaintiffs property as shown in the sketch appended to the plaint. (vi) The defendants are restrained from interfering the legal representatives of deceased plaintiff in the use of suit way in the 'B' schedule property up to the entrance of the plaintiffs property as shown in the sketch appended to the plaint. The sketch appended to the plaint shall be part of the decree. (vii) The defendants shall remove obstructions in the suit property mentioned within 30 days from today. Sd/- (ANANT RAMANATH HEGDE) JUDGE brn List No.: 1 Sl No.: 28