Karnataka High Court
B Sathish Kumar vs Smt. Prema S Kulal on 18 November, 2025
-1-
NC: 2025:KHC:47323
RSA No. 1716 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR SECOND APPEAL NO. 1716 OF 2019
BETWEEN:
B SATHISH KUMAR
S/O ANGARA SHRIYAN
HINDU, AGED ABOUT 66 YEARS
R/AT D.NO.23-100/2
'ANUGRAHA', CHOKKABETTU
SURATHKAL, MANGALURU-575 014
...APPELLANT
(BY SRI. VISHWAJITH RAI M AND
SRI. K.N. JAYAPRAKASH, ADVOCATES)
AND:
1. SMT. PREMA S KULAL
W/O SHANKAR KULAL
Digitally signed by HINDU, AGED ABOUT 46 YEARS
PANKAJA S
Location: HIGH R/AT 4TH BLOCK, SITE NO.129
COURT OF KRISHNAPURA
KARNATAKA MANGALURU-575 014
2. SRI. THAJUDDIN
S/O LATE HAMMABBA
MUSLIM, AGED ABOUT 40 YEARS
R/A JUMMA MASJID
ULLAL, MANCHILA
MANGALURU-575 020
...RESPONDENTS
(R1, R2-SERVED-UNREPRESENTED)
-2-
NC: 2025:KHC:47323
RSA No. 1716 of 2019
HC-KAR
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.08.2019 PASSED IN
RA NO.172/2017 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM., MANGALURU D.K DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 05.09.2017 PASSED IN OS NO.116/2012 ON THE FILE
OF THE II ADDL. CIVIL JUDGE AND JMFC., MANGALURU.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 13.11.2025 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
1. This is plaintiff's second appeal.
2. The plaintiff has filed a suit for permanent prohibitory injunction against defendants, their men and servants from blocking the reserved '12 feet RRR road' towards the southern side of the A schedule property.
3. It is the case of the plaintiff that he is absolute owner in possession and enjoyment of land measuring 5 cents in Sy.No.216/3 situated at Surathkal Village, Mangaluru, (for brevity, "the suit 'A' schedule property") and the same was purchased by plaintiff vide Sale Deed dated 01.08.2005 from Prema S Kullal - defendant No.1. Since -3- NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR there was no approach road to ingress and egress to the 'A' schedule property, defendant No.1, the vendor of plaintiff has specifically reserved 12 feet road towards the southern side of the 'A' schedule property which runs east to west which is clearly mentioned in clause No.8 of the said Sale Deed. However, on the eastern and southern side of the 'A' schedule property, the property of defendant No.1 is situated. Therefore, the aforesaid 12 feet width reserved RRR road is not only grant of way but also an easement of necessity and the plaintiff and his family members are using the 12 feet road without any hindrance from anybody including the defendants.
4. It is further case of the plaintiff that, after the sale of 'A' schedule property, defendant No.1 has sold some portion of remaining land in Sy.No.216/3 to defendant No.2 and at present, defendant No.2 appears to have acquired the portion of the property situated towards the southern side of the aforesaid reserved 12 feet RRR road. On 31.01.2012, defendant No.2 and his men in collusion -4- NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR started to dig trenches by the side of the southern compound wall of the 'A' schedule property to put up compound wall and the same was objected by the plaintiff. Due to his resistance, the defendants stopped their further work. Immediately after that the plaintiff lodged a complaint and the police issued an endorsement and advised to approach the civil court since the same was a civil dispute. Thus, the plaintiff filed a suit before the Trial Court seeking permanent prohibitory injunction restraining defendants from the plaintiff's peaceful use of the said road.
5. Though defendant Nos.1 and 2 appeared before the court through their counsel, defendant No.1 has not filed written statement and only defendant No.2 contested the suit by filing the written statement and denying that the 'A' schedule property was converted and sold to the plaintiff and also denied that there is a way reserved 12 feet road from the beginning as alleged in the plaint. Further it is contended that the property of defendant No.1 -5- NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR was closed by a compound wall. Inspite of knowing this very fact, the plaintiff has filed the suit only with a malafide intention to coerce the defendants and the Sale Deed executed in favour of plaintiff was executed by the GPA holder and he has no authority to grant the said 12 feet road as easement of necessity and thus, there is no cause of action to file the suit and the suit for bare injunction is therefore not maintainable. As such, defendant No.1 prayed to dismiss the suit.
6. The Trial Court, after considering the rival pleadings, framed relevant issues and after examining the evidence in detail, dismissed the suit of the plaintiff on the ground that the plaintiff has failed to establish the existence of 12 feet road and his right by way of grant and easement of necessity over the disputed road.
7. On appeal by the plaintiff, the First Appellate Court, upon re-appreciation of evidence, has observed that the plaintiff has filed the suit on the ground that the road runs -6- NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR in the property of the defendants. But the plaintiff has miserably failed to prove that the alleged road is running in the lands of the defendants, as such the right of easement cannot be extinguished. Accordingly, the First Appellate Court dismissed the appeal by confirming the judgment and decree dated 05.09.2017 passed in O.S. No.116/2012.
8. Aggrieved by the same, the plaintiff is before this Court.
9. I have heard Sri Vishwajith Rai. M and Sri. K.N. Jayaprakash, learned counsel for the appellant/plaintiff. Respondents/defendants though served, remained unrepresented.
10. The primary contention of the plaintiff/appellant is that the Trial Court and First Appellate Court have erred in appreciating the recitals in Ex.P7 - Sale Deed executed in favour of the plaintiff, wherein in clause No.8 of the said Sale Deed clearly discloses that the purchaser i.e, the -7- NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR plaintiff is permitted to use 12 feet wide approach road set apart in the same survey sub-division and in the vendors property "running from west to east and touching southern boundary of the 'A' schedule property for ingress and egress of men and vehicles and also to lay all cables and connections over and across the 'A' schedule property. The said aspect is further fortified in Ex.P6A- the survey sketch which also depicts the road in the southern boundary of 'A' schedule property running from east to west. Defendant No.2 after purchase of the portion of remaining property in Sy.No.216/3 started to obstruct the plaintiff from using the said road. As a matter of fact, the Sale Deed executed in favour of defendant No.2 also depicts that there is a road to the western side of his property. Further, defendant No.2 in his cross-examination categorically admitted the existence of road on the southern side of the plaintiff's property and also that his property is situated in the south eastern side and there is a road marked to the southern side of his property as per Ex.D3. In such -8- NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR circumstance, the Trial Court without considering those aspects, rejected the suit of the plaintiff for the reason that except Ex.P7, no other documents produced by the plaintiff to prove the existence of road and the plaintiff failed to produce the GPA of the original owner Prema S. Kullal since the plaintiff purchased the 'A' schedule property through the GPA holder.
11. He also contended that though he produced Ex.P6 - survey sketch, the Trial Court disbelieved the same for the reason that the same was prepared without giving notice to the neighbouring land owners. As such, the First Appellate Court and Trial Court totally misread the evidence, despite the plaintiff producing sufficient evidence to prove his possession, title of the 'A' schedule property and interference of the defendants. Accordingly, he prays to allow the appeal.
12. Though notice served to the respondent, they remained unrepresented.
-9-
NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR
13. I have given my anxious consideration to the contentions of learned counsel for the appellant/plaintiff, so also to the impugned judgments and decrees passed by both the Courts.
14. On careful perusal of the evidence and documents available on record, the following substantial questions of law arise for my consideration:
i) Whether the finding recorded by the Trial Court and the First Appellate Court that the plaintiff has failed to produce any string of evidence to prove the existence of road way towards the southern side of suit schedule 'A' property is justified?
ii) Whether the Trial Court and First Appellate Court erred by not relying Ex.P6(a)-sketch and not appreciating the admission of DW.1 in his evidence about the existence of road approach meant to ingress and egress to the suit 'A' schedule property?
- 10 -
NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR
15. As could be gathered from records, it is an undisputed fact that the plaintiff is the absolute owner in possession of suit 'A' schedule property by virtue of the absolute Sale Deed dated 01.08.2005 as per Ex.P7. Clause No.8 of said Sale Deed reads as under:
"That the VENDOR has permitted the PURCHASER to use the 12 Feet wide approach road set apart in the same Survey Sub Division and situated in his VENDORS property, running from West to East and touching the Southern boundary of the Schedule Property for ingress and egress of men and vehicles and also to lay all cables and connections in, over and across, to the Schedule Property."
16. It is also not in dispute that the vendor of the plaintiff - Prema S.Kulal sold the remaining extent of 26.50 cents in Sy.No.216/3 to one Zainaba vide sale Deed dated 29.08.2008. Later, the said Zainaba sold the said property to one Shaista Begum vide Sale Deed dated 20.03.2010. The said Shaista Begum in turn sold the said property to defendant No.2 vide Sale Deed dated 28.11.2011. Thus, it
- 11 -
NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR is clear, the property of defendant No.2 is the remaining extent of Sy.No.216/3 situated in the south eastern side of the suit 'A' schedule property. As per recital of Ex.P7 stated supra, the 12 feet wide approach road set in Sy.No.216/3 running from east to west touching southern boundary for ingress and egress of suit schedule 'A' property. The said aspect is even admitted by the defendant No.2 in his cross examination as under :
"£À£ßÀ D¹ÛAiÀÄÄ ªÁ¢ D¹ÛAiÀÄ zÀQëtPÀÆÌ ªÀÄvÀÄÛ ¥ÀƪÀðPÀÆÌ §gÀÄvÀÛzÉ JAzÀgÉ ¸Àj. £À£Àß D¹ÛAiÀÄ ªÀÄvÀÄÛ ªÁ¢AiÀÄ D¹ÛAiÀÄ ªÀÄzsÉå zÀPÀët ¢QÌUÉ ªÀÄvÀÄÛ ¥ÀƪÀð ¢QÌUÉ MAzÉà PÁA¥ËAqï UÉÆÃqÉ EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. £Á£ÀÄ £À£Àß D¹ÛAiÀÄ zÀQëtPÉÌ, ¥ÀƪÀðPÉÌ, ¥À²ÑªÀÄPÉÌ PÁA¥ËAqï UÉÆÃqÉ PÀnÖgÀÄvÉÛãÉ. ¤r-2 gÀ £ÀPÉëAiÀÄ°è £À£ßÀ D¹ÛAiÀÄ zÀQët ¢QÌUÉ gÀ¸ÉÛ UÀÄgÀÄw¹gÀÄvÁÛgÉ. ¸ÁQëAiÀÄÄ ¸ÀzÀj gÀ¸ÉÛAiÀÄÄ £À£Àß D¹ÛUÉ ªÀiÁvÀæ G¥ÀAiÉÆÃV¸À®Ä EgÀÄvÀÛzÉ. £À£Àß D¹ÛAiÀÄ £Á£ÀÄ Rjâ ¥ÀqÉzÀ ¸ÀªÉð £ÀA. UÀrAiÀĪÀgÉUÉ PÁA¥ËAqï UÉÆÃqÉAiÀÄ£ÀÄß PÀnÖgÀÄvÉÛãÉ. £Á£ÀÄ PÀnÖzÀ PÁA¥ËAqï UÉÆÃqÉAiÀÄ ¥À²ÑªÀÄPÉÌ ªÀÄ¼É ¤ÃgÀÄ ºÉÆÃUÀĪÀ vÉÆÃqÀÄ EgÀÄvÀÛzÉ. ªÀÄ¼É ¤ÃgÀÄ ºÉÆÃUÀĪÀ vÉÆÃr£À ¥À²ÑªÀÄPÉÌ zÀÆgÀzÀ°è gÉʯÉé ºÀ½ EgÀÄvÀÛzÉ. ªÉÆzÀ®Ä ºÉýzÀ ªÀÄ¼É ¤Ãj£À vÉÆÃqÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ MlÄÖ D¹ÛAiÀÄ ¥À²ÑªÀÄPÉÌ EgÀĪÀ ªÀÄ¼É ¤ÃgÀÄ ºÉÆÃUÀĪÀ vÉÆÃqÀÄ ªÀÄvÀÄÛ FUÀ £À£Àß D¹ÛAiÀÄ ¥À²ÑªÀÄPÉÌ ªÀÄ¼É ¤ÃgÀÄ ºÉÆÃUÀĪÀ vÉÆÃqÀÄ MAzÉà DVgÀÄvÀÛzÉ. ªÁ¢UÉ CªÀgÀ D¹ÛUÉ ºÉÆÃUÀ®Ä CªÀgÀ D¹ÛAiÀÄ zÀQëtPÉÌ gÀ¸ÉÛ EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj".
17. The above aspect of the matter further clarified in Ex.P6(a)-sketch produced along with Ex.P6 in respect of existence of the approach road. Nevertheless, the survey
- 12 -
NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR sketch produced by defendant No.2 as per Ex.D3 also depicts the existence of approach road adjacent to property of defendant No.2.
18. The Trial Court and the First Appellate Court rejected the suit of the plaintiff for the reason that Ex.P6(a)-survey sketch cannot be relied as the same was prepared without issuing notice to the adjacent land owners, though the same was not disputed/challenged by anybody. Further, the Trial Court and the First Appellate Court strangely came to the conclusion that the recital in Ex.P7 about the approach road cannot be relied since the GPA Holder of the original land owner who executed the Sale Deed in favour of the plaintiff was not examined. The Sale Deed of the plaintiff was not challenged either by defendant No.1 who was the original owner or defendant No.2. In such circumstance, both the Courts have grossly erred in rejecting the suit of the plaintiff on that count.
19. On perusal of the evidence of PW.1 and DW.1, the possession of the plaintiff on the suit schedule 'A' property
- 13 -
NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR and the interference of the defendants in the approach road by blocking the same is clearly established. The easement acquired by the plaintiff through Ex.P7-Sale Deed is absolute necessary for the enjoyment of the suit schedule property by the plaintiff. In such circumstance, the Trial Court and the First Appellate Court ought to have granted the relief in favour of the plaintiff as claimed in the plaint. In that view of the matter, I answer the first substantial question of law in the "negative" and the second substantial question of law in the "affirmative". Accordingly, I proceed to pass the following:
ORDER
i) The appeal is allowed.
(ii) The impugned judgment and decree
dated 27.08.2019 passed by the First
Appellate Court in R.A.No.172/2017 is set aside.
(iii) The judgment and decree dated 05.09.2017 passed by the Trial Court in
- 14 -
NC: 2025:KHC:47323 RSA No. 1716 of 2019 HC-KAR O.S.No.116/2012 is set aside and the suit of the plaintiff is decreed.
(iv) The defendants, their legal
representatives, men and servants are
restrained from blocking the RRR road
approach meant to ingress and egress to the suit schedule 'A' property, thereby interfering with the plaintiff's use of the said road.
(v) Office to draw the decree accordingly.
SD/-
(RAJESH RAI K) JUDGE PKS List No.: 1 Sl No.: 2