P Radhakrishna Rai vs Padmanabha A
2022 Latest Caselaw 7795 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 31ST DAY OF MAY, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        WRIT PETITION NO.9743 OF 2022 (GM-CPC)

BETWEEN:

1.     P. RADHAKRISHNA RAI
       S/O P. VITTAL RAI
       AGED ABOUT 69 YEARS

2.     SMT. AMARAVATHI R. RAI
       W/O P. RADHAKRISHNA RAI
       AGED ABOUT 68 YEARS

     BOTH ARE R/AT "LAXMI PRASAD''
     NEAR VAIDYANATHADWARA
     JEPPINAMOGARU POST
     MANGALURU, D.K. DISTRICT - 575 001.
                                     ... PETITIONERS
(BY SMT. NEERAJA KARANTH., ADV.,)


AND:

1.     PADMANABHA A
       S/O NARNAPPA MOOLYA
       AGED ABOUT 56 YEARS

2.     SMT. VISHALAXI K
       W/O PADMANABHA A
       AGED ABOUT 68 YEARS

       BOTH ARE R/AT
       CHAMUNDESHWARI BUILDING
       NEAR GUDDEGUTHU
       KANKANADY POST
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        MANGALURU
        D.K. DISTRICT - 575 001.

                                             ... RESPONDENTS

(BY SRI. S. RAJASHEKAR, ADVOCATE FOR RESPONDENT)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
JUDGMENT AND ORDER DATED:31.01.2022 PASSED IN
M.A.NO.38/2015 PASSED BY THE I ADDL SR. CIVIL JUDGE
AND CJM, MANGALURU AND ORDER DATED:08.06.2015
PASSED ON IA NO.II IN O.S. NO.1291/2014 PASSED BY
THE III CIVIL JUDGE AND JMFC, MANGALURU, D.K.
DISTRICT PRODUCED AND MARKED HEREIN AS ANNEXURE
-A AND B IN THIS W.P. AND ETC.,

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

The captioned writ petition is filed by the unsuccessful

defendants questioning the concurrent orders of the courts

below wherein the application filed by the

respondents/plaintiffs seeking interim injunction is allowed

by the trial court and the same is confirmed by the

appellate court.

2. The respondents/plaintiffs have instituted a suit

for injunction by contending that they are the absolute

owners of 'A' schedule property - the corner site having

road on two sides. The road situated on the Eastern side is

also being utilized by the plaintiffs. The grievance of the

plaintiffs is that the present defendants who are the owners

of the immovable property situated on the Northern side of

schedule 'A' property are attempting to encroach the

portion of schedule 'A' property by blocking the Eastern side

road. The plaintiffs also allege that the defendants are

intending to erect a gate on the Eastern road, thereby

blocking all access towards Southern road.

3. The present suit is filed as the

petitioners/defendants started digging and an attempt is

made to block the entrance of the said road. On these set

of pleadings, the present suit is filed and accordingly,

plaintiffs filed application under Order 39 Rules 1 and 2 of

Civil Procedure Code seeking interim injunction.

4. The trial court having examined the prima facie

material, has exercised discretion in favour of

respondents/plaintiffs and granted interim injunction. The

said order has been confirmed by the Appellate Court in

M.A.No.38/2015.

5. Heard the learned counsel for the petitioners

and the learned counsel for the respondents. Perused the

orders under challenge.

6. On an examination of sketch at Annexure 'G',

this court would find that the plaintiffs' property is bounded

by roads, one on the Southern side and another on the

Eastern side. The defendants claim that the road situated

on the Eastern side of the plaintiffs' property is a private

road and therefore contends that the plaintiffs have no right

to utilize the said private road. While plaintiffs contend that

they are using the road to have access to the Southern

road, the existence of road on the eastern side is not in

dispute. However, the defendants claim that they are

exclusively using suit road and therefore, denied plaintiffs'

right to have access over the road situated on the Eastern

side. Whether eastern side road is a private road and is

being exclusively utilized by the defendants is a matter of

trial. By exercising judicial discretion, both the courts below

have granted temporary injunction. I do not find any error

in the order passed by the Courts below. Hence, I pass the

following:

ORDER

Writ petition is devoid of merits and the same is

dismissed.

All the contentions are kept open.

Sd/-

JUDGE

snc