1 IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH DATED THIS THE 17TH DAY OF SEPTEMBER 2014 BEFORE THE HON’BLE MR.JUSTICE N.ANANDA REGULAR SECOND APPEAL No.7279/2010 BETWEEN: 1. Mohammed Hussain S/o Ismail Saheb Age: 45 years Occ: Agriculture 2. Abdul Saheb S/o Ismail Saheb Age: 40 years Occ: Agriculture 3. Khader Saheb S/o Ismail Saheb Age: 35 years Occ: Agriculture All are R/o village Mandewal Tq. Jevargi Dist. Gulbarga – 585 101 …Appellants (By Sri J. Augustin & Sri Sanjay A. Patil, Advocates) 2 AND: 1. Siddappa S/o Gundappa Age: 60 years Occ: Agriculture 2. Mallappa S/o Gundappa Age: 50 years Occ: Agriculture Both are R/o village Mandewal Tq. Jevargi Dist. Gulbarga – 585 101 ... Respondents (By Sri B.D. Hangarki, Advocate for R1 & R2) This Regular Second Appeal is filed under Section 100 of CPC against the judgment and decree dated 21.11.2009 passed in R.A.No.07/2007 on the file of IV-Addl. District Judge at Gulbarga, allowing the appeal and setting aside the judgment and decree dated 18.12.2006 passed in O.S.No.265/2000 on the file of Prl. Civil Judge (Sr.Dn.) at Gulbarga. This appeal coming on for Hearing this day, the Court delivered the following: 3 JUDGMENT The appellants were the plaintiffs in O.S.No.265/2000. They had filed suit for declaration of easementary rights in Sy.No.434/A and for permanent injunction to restrain the defendants from preventing the plaintiffs for making use of western edge of land bearing Sy.No.434/A to reach their Sy.No.393/2 situate at Mandewal land village. bearing The defendants contested the suit on several grounds. The defendants have contended that dominant heritage viz., land bearing Sy.No.393/2 belonged to the father of plaintiffs namely, Ismail Saheb. During his lifetime, plaintiffs had no right to file the suit. They had also contended that case of the plaintiffs that their father had effected family settlement in relation to the land bearing Sy.No.393/2 cannot be accepted. The learned trial Judge answered these issues against defendants and granted decree. Therefore, the defendants were before the I-appellate court in R.A.No.7/2007. 4 2. The learned Judge of I-appellate court has not dealt with all the findings recorded by the learned trial Judge. The learned Judge of I-appellate court relying on the judgment of the Supreme Court in AIR 1953 Madras 161 (in the case of Syed Sulaiman Sahib Vs. Kader Ibrahim Meeral Bivi and others) has held that father of plaintiffs could not have made family settlement amongst his sons as the parties are governed by Mohammedan Law. The learned Judge of I-appellate court has held that plaintiffs not being the owners of dominant heritage i.e., land bearing Sy.No.393/2 cannot maintain a suit for easement acquired either by prescription or easementary right as of necessity. 3. I have herd the learned counsel for parties. 4. The learned counsel for appellants has raised following substantial questions of law: 5 i. Whether in a suit for easementary right between plaintiff and a stranger to the family, the family partition of the plaintiffs interse is a relevant question to decide easementary right? ii. Whether the lower appellate judge correctly held that, any partition during the life time of a Mohammedan easementary right father of the renders non the Muslim defendant renders the suit for easement by the Muslim Plaintiff non maintainable? 5. The learned Judge of I-appellate court, while recording a finding that plaintiffs cannot maintain a suit for declaration of easementary rights as they are not owners of dominant heritage i.e., land bearing Sy.No.393/2, has not considered the provisions of Section 12 of the Indian Easements Act, 1882, reading as hereunder: “12. Who may acquire easements.- An easement may be acquired by the owner 6 of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same. One of two or more co-owners of immovable property, may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property. No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.” (underlining supplied) 6. The learned Judge of I-appellate court has not considered the findings recorded by the learned trial Judge on issue Nos.2 to 8. It is the duty of I-appellate court to consider pleadings, re-appreciate evidence and record findings on all the issues framed and answered by the trial court. Therefore, judgment of I-appellate 7 court cannot be sustained. The matter needs reconsideration by the I-appellate court. 7. As the matter in under remand, there is no need to answer the substantial questions of law framed in the appeal. 8. In the result, I pass the following: ORDER The appeal is accepted. The impugned judgment is set aside and the matter is remitted to I-appellate court for reconsideration in the light of observations made in this order and in accordance with law. Sd/JUDGE NB*