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DOCTRINE OF LIS PENDENSE 2010 SC

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Supreme Court Of India Bench Consiting Of Justice R.V. Raveendran And Justice A K Patnaik In T.G. Ashok Kumar VS Govindammal & Anr., Decided on 08-12-2010, The principle underlying Section 52 of the Transfer of Property Act, 1882 is clear. During the pendency in a court of competent jurisdiction of any suit which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirety to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee's right and title are saved fully or partially.

SUGGESTION TO THE LAW MAKERS

Absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment cause lot of hardship, loss, anxiety and unnecessary litigation. At present, a prospective purchaser can find out about any existing encumbrance over a property either by inspection of the Registration Registers or by securing a certificate relating to encumbrances (that is copies of entries in the Registration Registers) from the jurisdictional Sub-Registrar under Section 57 of the Registration Act, 1908. But a prospective purchaser has no way to ascertain whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does not disclose it or deliberately suppresses the information. The inconveniences, risks, hardships and misery as a result of such transfers could be avoided and the property litigations could be reduced to a considerable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending (or whether the property is subject to any decree or attachment) before he decides to purchase the property. A solution has been found to this problem in the States of Maharashtra by an appropriate local amendment to section 52 of the Act, by Bombay Act 4 of 1939. The Law Commission and the Parliament must consider such amendment or other suitable amendment to cover the existing void in title verification or due diligence procedures. Provision can also be made for compulsory registration of such notices in respect of decrees and in regard to attachments of immoveable properties.

At present in most of the States, agreements to sell are not compulsorily registrable as they do not involve transfer of any right, title or interest in an immoveable property. Registration of agreements of sale will reduce property litigation. It will go a long way to discourage generation and circulation of black money in real estate matters, as also undervaluation of documents for purposes of stamp duty. It will also discourage the growth of land mafia and muscleman who dominate the real estate scene in various parts of the country.

ATTORNEY HOLDER CANNOT GIVE EVIDENCE FOR PERSONAL TRANSACTIONS OF PRINCIPAL 2010 SC

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Supreme Court Of India Bench Consiting Of Justice R.V. Raveendran And Justice Aftab Alam In Man Kaur Vs Hartar Singh Sangha Decided on 05-10-2010 “The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney- holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or person residing abroad managing their affairs through their attorney-holders.” - Evidence Act, 1872 - Ss. 101,106,145 and 114 111. (g) - Adverse presumption - Reiterated, where a party to the suit does not appear in witness box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that case set up by him is not correct-Specific Relief Act, 1963, Ss. 15 and 16(c).

IN A CASE WHERE PRAYER IS NOT MADE AGAINST A PARTICULAR DEFENDANT, NO RELIEF CAN BE GRANTED AGAINST HIM.

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Supreme Court of India in DR. SHEHLA BURNEY & ORS Vs. SYED ALI MOSSA RAZA (DEAD) BY LRS.& ORS. Coram of Justice : G.S. SINGHVI, Justice : ASOK KUMAR GANGULY held that the relief of possession could not be granted against the 2nd defendant as it was neither pleaded nor prayed for – Granting relief that was not prayed for goes to the root of the matter and could be raised for the first time before the Supreme Court – Appeal was allowed, decree passed by the High Court was set aside and that of the trial Court was confirmed.

JURISDICTION ISSUE DEFENDANT HAS TO PROVE IT STRICTLY 2008 SC

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Justice P.P. Naolekar & Justice Aftab Alam bench in a case of Mahant Dooj Das (Dead) through L.Rs. v. Udasin Panchayati Bara Akhara & Anr.; Reported in 2008(5) Supreme 425, & 2008 (7) SCR 470
The Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956 received the assent of the President on 7.3.1957 and was published in the U.P. Gazette Extraordinary dated 12.3.1957. The Act was brought into force to provide for the abolition of Zamindari system in agricultural areas situated in urban areas of U.P. and for acquisition of the rights, title and interest of the intermediaries between the tiller of the soil and the State in such areas and for introduction of the land reforms therein. By virtue of s.8 of 1956 Act, after the agricultural area has been demarcated under s.5, the State Government would issue a notification in the official gazette declaring that from specified date all demarcated area situated in the urban area shall vest with the State Government and from the date so specified all such agricultural area shall be transferred to and vest except otherwise provided, in the State free from all encumbrances. There is no evidence led by the defendants that the suit land had been declared as a demarcated area and as such as vested with the State government under s.8 of the 1956 Act. In the absence of proof, it cannot be said that the suit area is a demarcated area and thus vested in the State by issuance of the notification under s.8 of the Act.

No evidence has been led by the defendants on whom heavy burden lies to prove the fact that the suit lands were declared demarcated. The defendants have claimed ouster of the civil court's jurisdiction only on the basis of s.331 of the 1950 Act incorporated in the 1956 Act. The defendants having failed to prove the applicability of that provision to the area in the suit, civil court's jurisdiction cannot be said to have been ousted and vested in the revenue court.

Under section 9 of the Code of Civil Procedure, the courts shall have jurisdiction to try all suits of civil nature excepting suits of which there is a bar expressly or impliedly provided. It is well settled principle that a party seeking to oust jurisdiction of an ordinary civil court shall establish the right to do so. It is also settled law that exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. The provisions of law which seek to oust the jurisdiction of civil court need to be strictly construed.

In Dwarka Prasad Agarwal (D) by LRs. v. Ramesh Chander Agarwal and Others, (2003) 6 SCC 220, a 3-Judge Bench has held that Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil court’s jurisdiction is ousted.


DELEGATED LEGISLATION AND ITS LIMITS – STATE POWERS – RIGHT OF PRIVATE PLACES TO ERECT ADS 2008 SC

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Justice A Pasayat, and Justice S Kapadia in a case of Novva ads v. Secretary, Department of Municipal Administration & Water Supply & Another; Reported in AIR 2008 SC 2941, (2008) 8 SCC 42 “It is well settled that a delegated legislation would have to be read in the context of the primary statute under which it is made and, in case of any conflict, it is primary legislation that will prevail.” The State has a full right to regulate the public places, as they vest in the State as trustees for the public. The State can impose such limitations on the user of public places as may be necessary to protect the public generally. Hoardings erected on private places require to be licensed and regulated as they generally abut on and are visible on public roads and public places. Hoarding erected on a private building may obstruct public roads when put up on private buildings; they may be dangerous to the building and to the public; they may be hazardous and dangerous to the smooth flow of traffic by distracting traffic, and their content may be obscene or objectionable. It is, therefore, not correct that hoardings on private places do not require to be regulated by licensing provisions.

QUOTED CITATIONS

A delegated legislation can be declared invalid by the Court mainly on two grounds: firstly, that it violates any provision of the Constitution and secondly, it is violative of the enabling Act. If the delegate which has been given a rule-making authority exceeds its authority and makes any provision inconsistent with the Act and thus overrides it, it can be held to be a case of violating the provisions of the enabling Act but where the enabling Act itself permits ancillary and subsidiary functions of the legislature to be performed by the executive as its delegate, the delegated legislation cannot be held to be in violation of the enabling Act. [See vide State of M.P. v. Bhola (2003) 3 SCC 1]

In St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education and Another (2003) 3 SCC 321, this Court has held that: "Delegated legislation permits utilization of experience and consultation with interests affected by the practical operation of statutes. Rules and Regulations made by reason of the specific power conferred by the Statutes to make Rules and Regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs".


DOCUMENTARY AND FACTUAL VERIFICATION IN WRIT JURISDICTION OF HIGH COURT 2008 SC

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Justice S.H. Kapadia and Justice B. Sudershan Reddy in a case of City and Industrial Development Corporation vs Dosu Aardeshir Bhiwandiwala & Ors. Reported in AIR 2009 SC 571,
FACT:- The High Court mostly relied upon the oral statement made through the A.G.P. and also some vague averments made by the appellant in its reply affidavit to the effect that the land in question is a private land and accordingly disposed of the Writ Petition directing the acquisition of the land. There is no whisper in the impugned order of the High Court that the Bhiwandiwala Trust continued to be the true and absolute owner of the land possessing valid and subsisting title as on the date of the filing of the writ petition. Nor there is any finding by the High Court as regards the nature of the land which is one of the most important factor that may have a vital bearing on the issue as to the entitlement of the respondent to get any relief in the writ petition. There is also no finding that Respondent No.1 who filed the writ petition as an individual is the trustee of the said trust and thus entitled to prosecute the litigation on behalf of the trust. The High Court did not consider as to what is the effect of filing of the Writ Petition by someone claiming to be a trustee without impleading the trust as the petitioner. The High Court ignored the statement made by the respondent in his Writ Petition about his representation to Tehsildar requiring to record his name as an "heir". The High Court never considered the effect of such a statement made by the writ petitioner in the writ petition itself. The High Court also did not consider whether the reliefs claimed could at all be granted in a public law remedy under Article 226 of the Constitution.
FINDINGS OF SUPREME COURT
Such a statement by itself cannot confer title in respect of immovable properties on any individual. The courts are not relieved of their burden to weigh and evaluate the relevancy and effect of such statements in adjudicating the lis between the parties.
The High Court ought to have considered whether there was any suppression of material facts from the Court. Having regard to the magnitude and complexity of the case the High Court in all fairness ought to have directed the official respondents to file their detailed counter affidavits and produce the entire material and the records in their possession for its consideration.
The stance adopted by the State of Maharashtra and the District Collector is stranger than fiction. It is difficult to discern as to why they remained silent spectators without effectively participating in the proceedings before the Court. No explanation is forthcoming as to why they have chosen not to file their replies to the Writ Petition in the High Court.
Under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.
The High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record.
There is nothing like issuing an ex-parte writ of Mandamus, order or direction in a public law remedy. Further, while considering validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extra ordinary jurisdiction under Article 226 of the Constitution.
The court while exercising its jurisdiction under Article 226 is duty bound to consider whether :
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can
be satisfactorily resolved;
(b) petition reveals all material facts;
(c)the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of Limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.

The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the court and particularly in cases where public revenue and public interest are involved. Such directions always are required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public remedy to which he is not otherwise entitled to in law.
It will not be appropriate to dispose of the matter without one word about the conduct of the State Government reflecting highly unsatisfactory state of affairs. This Court expresses its grave concern as to the manner in which State has conducted in this case. It is the constitutional obligation and duty of the State to place true and relevant facts by filing proper affidavits enabling the court to discharge its constitutional duties. The State and other authorities are bound to produce the complete records relating to the case once Rule is issued by the court. It is needless to remind the Governments that they do not enjoy the same amount of discretion as that of a private party even in the matter of conduct of litigation. The Governments do not enjoy any unlimited discretion in this regard. No one needs to remind the State that they represent the collective will of the society.

The State in the present case instead of filing its affidavit through higher officers of the Government utilised the lower ones to make oral statements and that too through its A.G.P. in the High Court. This malady requires immediate remedy. It is hoped that the Government shall conduct itself in a responsible manner and assist the High Court by placing the true and relevant facts by filing a proper affidavit and documents that may be available with it.

GUIDELINES BY SUPREME COURT IN THE MATTER OF RE-OPENING THE COMPLETED STAGE OF THE CIVIL CASE 2011 SC

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JUSTICE R. V. Raveendran AND JUSTICE A. K. Patnaik in K.K. VELUSAMY VS N.PALANISAMY Reported in 2011 (4) SCALE 61
1. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided.

2. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application.

3. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application.

4. If the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

5. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence.

6. Where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence.

7. The court should take up and complete the case within a fixed time schedule so that the delay is avoided.

8. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code.


Settled Possesssion - Title Goes With Possession 2003 SC

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JUSTICE R.C. Lahoti, JUSTICE B.N. Srikrishna & JUSTICE G.P. Mathur in RAME GOWDA (D) BY LRS. .Vs. M. VARADAPPA NAIDU (D) BY LRS. & ANR. Reported in 2004(1) SCC 769 “It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.”

JOINT FAMILY PROPERTY SALE BY KARTA –POWERS- PROCEDURE TO BE FOLLOWED BY OPPOSING CO-PARCENER 2007 SC

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Justice Dr. Arijit Pasayat & Justice S. H. Kapadia in case of SUBHODKUMAR & ORS. .Vs. BHAGWANT NAMDEORAO MEHETRE & ORS. Reported in AIR 2007 SC 1324, A Karta of Hindu Undivided Family had five sons. The Karta and four sons entered into an agreement of sale with respondents for selling part of their ancestral lands and thereafter executed a sale deed. The fifth son opposed the transaction and entered into a separate agreement of sale for selling part of the sold lands with appellants. The respondents-plaintiff filed a suit for possession of lands before trial court contending that the agreement entered into by the opposing son with the appellants-defendants was a fabricated antedated document. The appellants contested the suit contending that their agreement of sale was genuine and first in point of time: that they were not aware of the agreement executed by the Karta in favour of the respondents: and that the transaction was not for legal necessity. The trial court decreed the suit holding that the transaction was for legal necessity. The appellate court also dismissed the appeal but held that the legal necessity for possession was not a `fact in issue' The High Court dismissed the second Appeal of the appellants holding that the transaction was on account of legal necessity. In appeal to this court, the appellants contended that there was no legal necessity for the Karta and his four sons to execute the conveyance in favour of the respondents; that the conveyance was executed without the consent of one of the coparceners; that the opposing son entered into a conveyance with them in respect of his undivided share and was it earlier in point of time. Dismissing the appeal, the Court. HELD: A karta has power to alienate for value the joint family property either for necessity or all the coparceners of the family. When he alienates for legal necessity interest. When the Karta, however, conveys by way of imprudent transaction, the alienation is voidable to the extent of the undivided share of the non-consenting coparcener. Neither the opposing son nor his successors-in-title instituted a suit for partition and for demarcation of their share by metes and bounds. In the suit for possession filed by the respondents, the issue of legal necessity becomes irrelevant. A mere declaration that transaction was imprudent or was not for legal necessity in such a suit cannot give any right to the appellants to get their share without taking appropriate proceedings in accordance with law. The legal necessity in the present suit for possession was not a "fact in issue".

RELIEF OF CLAIMING RECTIFICATION OF INSTRUMENT IN A SUIT CAN BE CLAIMED BY WAY OF AMENDMENT 2010 SC

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JUSTICE DR. B.S. CHAUHAN and JUSTICE SWATANTER KUMAR in SUBHADRA & ORS. .Vs. THANKAM Reported in AIR 2010 SC 3031, “The relief of rectification can be claimed where it is through fraud or a mutual mistake of the parties that real intention of the parties is not expressed in relation to an instrument. Even then the party claiming will have to make specific pleadings and claim an issue in that behalf…………… The plea of the appellant that since no relief for rectification has been prayed, the decree for specific performance ought not to be granted is not tenable. Section 26(4) of the Act only says that no relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed. However, proviso to Section 26(4) of the Act makes it clear that when such a relief has not been claimed by the concerned parties, the Court shall, at any stage of the proceedings allow him to amend the pleadings on such terms, as may be just, for including such a claim and it would be necessary for the party to file a separate suit. The legislative intent in incorporating this provision, therefore, is unambiguous and clear. The purpose is not to generate multiplicity of litigation but to decide all issues in relation thereto in the same suit provided the provisions of Section 26 of the Act are attracted in the facts of a given case.”

EASEMENTARY RIGHT BY WAY OF IMPLIED GRANT 2010 SC

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Justice Tarun Chatterjee and Justice V.S.Sirpurkar in a case of SREE SWAYAM PRAKASH ASHRAMAM & ANR. .Vs. G. ANANDAVALLY AMMA & ORS. Reported in AIR 2010 SC 622, The case of the defendants-appellants that since there was no mention in the deed of settlement enabling the use of `B' schedule pathway for access to `A' schedule property and the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well. The facts and circumstances of the case amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to `B' schedule property of the plaint for its use as pathway to `A' schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for access to the `A' schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an implied grant in respect of the `B' Schedule property of the plaint. The High Court was perfectly justified in holding that when it was the desire of `Y' to grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have `B' schedule property of the plaint as a pathway could not have been taken away. The High Court was fully justified in holding that there was implied grant of `B' schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to `A' schedule property of the plaint and there was no objection also to the use of `B' schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.

The Trial Court on consideration of the plaintiff's evidence and when the defendant had failed to produce any evidence, had come to the conclusion that the plaintiff was given right of easement by `Y' as an easement of grant. Considering this aspect of the matter, although there is no specific issue on the question of implied grant, but as the parties have understood their case and for the purpose of proving and contesting implied grant had adduced evidence, the Trial Court and the High Court had come to the conclusion that the plaintiff had acquired a right of easement in respect of `B' schedule pathway by way of implied grant. Such being the position, this Court cannot upset the findings of fact arrived at by the Courts below, in exercise of its powers under Article 136 of the Constitution. It is true that the defendant-appellants alleged that no implied grant was pleaded in the plaint. However, the Trial Court was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant.

KARNATAKA LAND LAWS