Karnataka High Court
Sri. K.T. Anandakumar vs Sri. Muniraju K.C on 11 August, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.7804 OF 2015 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.7803 OF 2015 (CPC)
IN M.F.A.No.7804/2015
BETWEEN:
SRI. K.T. ANANDAKUMAR
S/O LATE K.R. THIMMAIAH,
AGED 52 YEARS,
R/AT NO.426, 5TH MAIN ROAD,
5TH CROSS, KENGERI SATELLITE TOWN
BENGALURU-560 060.
...APPELLANT
Digitally signed
by SHARANYA T (BY SRI M B CHANDRA CHOODA, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
SRI. MUNIRAJU K.C.
S/O K B DODDACHANNAPPA,
AGED 47 YEARS
R/AT NO.172, R.S.ROAD, KENGERI,
BENGALURU-560060
...RESPONDENT
(BY SMT. N SHARADHA, ADVOCATE)
-2-
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
THIS MFA IS FILED U/O 43, RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 26.09.2015 PASSED ON IA
NO.1 IN O.S.NO.7510/2014 ON THE FILE OF THE 43RD
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU
AND ETC.
IN M.F.A.No.7803/2015
BETWEEN:
SRI. K.T. ANANDAKUMAR
S/O LATE K.R. THIMMAIAH,
AGED 52 YEARS,
R/AT NO.426, 5TH MAIN ROAD,
5TH CROSS, KENGERI SATELLITE TOWN
BENGALURU-560 060.
...APPELLANT
(BY SRI M B CHANDRA CHOODA, ADVOCATE)
AND:
SRI. MUNIRAJU K.C.
S/O K B DODDACHANNAPPA,
AGED 47 YEARS
R/AT NO.172, R.S.ROAD, KENGERI,
BENGALURU-560060
...RESPONDENT
(BY SMT. N SHARADHA, ADVOCATE)
THIS MFA IS FILED U/O 43, RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 26.09.2015 PASSED ON IA
NO.3 IN O.S.NO.7510/2014 ON THE FILE OF THE 43RD
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU
AND ETC.
-3-
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
THESE APPEALS COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals are filed challenging the order
dated 26.09.2015 passed on I.A.Nos.1 and 3 filed under
Order XXXIX Rules 1 and 2 of CPC and under Order XXXIX
Rule 4 of CPC in O.S.No.7510/2014 on the file of XLIII
Additional City Civil and Sessions Judge, Bengaluru.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the plaintiff
before the Trial Court is that the plaintiff has filed a suit
for the relief of declaration to declare that the plaintiff is
the uninterrupted user of the easementary right of way in
respect of three feet passage running east to west in
between the properties of plaintiff and defendant and also
for the relief of mandatory injunction against the
defendant directing him to remove forthwith the
unauthorized construction with steel gate put up in the
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
three feet passage by him and also for the relief of
permanent injunction against the defendant and his people
claiming through him from obstructing the easementary
right of three feet passage lying between the properties of
the plaintiff and the defendant. It is the claim of the
plaintiff that he has purchased the property under the
registered sale deed dated 15.05.2004 from Smt.Rabiya
Bee represented by Mehaboob Bee as GAP holder and the
plaintiff is in peaceful possession and enjoyment of the
said property without any hindrance from anybody and he
is in lawful possession of the same. It is also the
contention of the plaintiff that under the partition deed
dated 23.05.1965, the father of the defendant K R
Thimmaiah was allotted schedule 'A' property and the
defendant is in possession and enjoyment of item No.4 of
schedule 'A' property after the death of his father. The
plaintiff also got transferred the katha from BBMP in
respect of his properties and he is paying tax of the said
properties. It is further contended that the vendors of the
plaintiff were using un-interruptedly three feet passage
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
running towards east to west on the northern side of the
plaintiff's properties and the same is only ingress and
egress as an easementary right for a long period and the
same continued after purchase of the properties from the
plaintiff. The plaintiff is openly using the three feet
passage for his ingress and egress to the rare portion of
plaintiff's property bearing gramattana katha
No.2510/1023 and property No.204.
4. It is submitted by the counsel for the plaintiff
that the defendant, on 12.08.2013, by fixing an iron gate
to the entrance that is at the entrance to the three feet
passage on the eastern side road, blocked the said three
feet passage at the end of the plaintiff's property by
constructing about five feet wall and also constructed
about three feet wall starting from the plaintiff's
gramattana property by converting three feet passage
from the five feet wall till the end of it as drainage by
putting up chamber and fixing sanitary pipe and hence,
with the unlawful acts of the defendant with impunity to
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
obstruct the plaintiff from his lawful exercise of using
exclusive easementary right of three feet passage.
Photographs are also taken on 12.08.2013 to show that
the defendant has raised a wall about three feet blocking
the free passage and the materials used are lying in the
floor of the passage. Hence, prayed the Court to grant the
relief as sought.
5. In response to the suit summons, the defendant
appeared and filed the written statement contending that
the very suit itself is not maintainable. It is contended
that the mother of the plaintiff purchased the property
under the registered sale deed dated 30.01.2002 from
Mohammed Khasim. The said Mohammed Khasim has
purchased the said property under the registered sale
deed dated 30.01.2002 i.e., on the same day. There is a
reference to the sale deed dated 11.01.1954. In the said
sale deed, there is no reference available of three feet
passage on the northern side. The plaint description of
the property is incorrect. In the sale deed of
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
Smt.Channamma dated 30.01.2002, it is mentioned that
towards northern boundary, Sampalu is existing. There is
no such description in the sale deed dated 11.01.1954.
Further, Smt.Channamma is still alive and therefore, the
plaintiff has no right over the property. It is also
contended that in the sale deed dated 15.05.2004, it is
wrongly described for western boundary as remaining
property and the northern boundary as three feet passage
and the property of the defendant. Hence, the property
has been wrongly described by the plaintiff. The vendor of
the plaintiff cannot transfer any right which they do not
have and the same is reiterated in the objection
statement.
6. The Trial Court after considering the pleadings
of the parties, formulated the points that whether the
plaintiff has made out a case for grant of temporary
injunction and balance of convenience lies in his favour
and whether defendant has made out a case for vacating
the exparte temporary injunction. The Trial Court after
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
considering both oral and documentary evidence placed on
record taken note of the fact that the defendant contend
that the boundary have been illegally created in the recent
sale deed of the plaintiff to obtain the temporary
injunction order. The Trial Court also considered the
document of the defendant i.e., the sale deed of the year
1951 which clearly shows that the plaintiff's property do
not have passage in the northern side. But it is the
contention of the plaintiff that there is a reference of three
feet passage in his sale deed and the defendant has
illegally put up the wall to prevent using that passage. The
Trial Court also taken note of the sale deed of the plaintiff
dated 15.05.2004. In schedule of the said property,
towards north, three feet passage and thereafter the
property of Anand is shown. It is not in dispute that
Channamma's property is situated towards southern side
of the property belongs to the defendant. The defendant
has questioned the title of the plaintiff but there is a sale
deed in the name of the plaintiff as well as in the name of
Channamma which can be dealt at the time of trial.
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
7. The Trial Court also taken note of the fact that
the partition of the year 1965 was held between the father
of the defendant and his family members and item No.4
has been allotted to the defendant's father. In the said
property, boundaries are mentioned as towards east - by
public road, west - by Mysore Channamma and Ahmed
Saheb's house, north - by house of Thimmaiah and
Venkatappa's Selver Floor Mill and towards south - by
vacant site of Ahmed Sheriff. The said property does not
give any measurement to the property. According to the
defendant, municipal authority has measured the property
and on that basis he has given measurement to his
property. Hence, this fact also has to be decided only at
the time of main trial. Having considered the document
on record, the Trial Court comes to the conclusion that
prima facie there is a material to show that there is a
three feet passage towards the northern side of the
plaintiff's property and defendant has not made out a case
for vacating temporary injunction order.
- 10 -
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
8. The main contention of the counsel for the
appellant in his arguments that in the document of
plaintiff's vendor, no such mentioning of three feet
passage said to have been situated towards northern side
of his property and the Trial Court fails to consider the
same. But only relying upon the sale deed dated
15.05.2004 comes to the conclusion that the plaintiff has
made out the case. But in the sale deed dated
15.05.2004, there is no mention of the alleged passage
towards northern side of the suit schedule property as
alleged by the respondent and there is no recital in the
sale deed regarding existence of said passage. When such
being the case, the Trial Court ought not to have granted
the relief.
9. Per contra, the counsel for the respondent
would vehemently contend that in respect of the
properties of the defendant also dimension is not
mentioned in the title deed but the defendant claims that
the same belongs to him and there is no passage. The
- 11 -
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
counsel would vehemently contend that the Trial Court
taken note of the averments made in the sale deed which
he has purchased and there is no dispute that there is a
passage between the property of the both the parties.
The plaintiff is having right to access his property through
the three feet passage running east to west in between
the plaintiff's property Nos.204 and 287 and the property
of the defendant and hence, the Trial Court has not
committed any error.
10. This Court having heard the arguments of both
the parties and also with the consent of the parties and in
view of the application filed by the respondent herein, the
commissioner is also appointed and the commissioner
inspected the spot and filed the report drawing the sketch
and produced the photograph. In terms of the sketch, A,
B, C, D property belongs to the respondent/plaintiff and K,
J, L, E, G, H property belongs to the appellant/defendant.
The sketch clearly discloses that there is a passage to the
extent of three feet which is claimed by the plaintiff that
- 12 -
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
the appellant herein is causing obstruction to go to the
property of the plaintiff by using the said three feet
passage and except this passage, no other access to the
land of the plaintiff and also a gate was put in between O
and N which is shown in the sketch and also in between O,
K, L, E there is a shop and the same is also not belongs to
the appellant/defendant.
11. The claim of the appellant the building is in
existence to the extent of 25 feet but the plaintiff claims
only 24 feet. Admittedly, in terms of the document, no
measurement in the original document of the appellant
also. When three feet passage is there and the same is
identified and the commissioner report is also clear that
the said three feet passage is blocked by putting a gate,
the Trial Court also taking note of the said fact into
consideration and also the fact that the appellant is not
claiming right to the extent of three feet but only claims
that out of three feet passage one feet belongs to the
appellant. I have already pointed that in terms of the
- 13 -
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
original document, no description with regard to the
measurement is concerned and when the plaintiff is using
the same, except that three feet passage, there is no
access to the land of the plaintiff and also the plaintiff's
document clearly discloses mentioning of three feet
passage in the sale deed, the Court has to take note of the
prima facie material available before the Court while
granting the relief of temporary injunction and the same
was considered by the Trial Court. Hence, I do not find any
error committed by the Trial Court in granting the relief of
temporary injunction restraining the appellant herein not
to cause any obstruction to free access of the plaintiff.
Whether the property of the appellant measures 25 feet or
only 24 feet and also whether the plaintiff has got right in
respect of three feet passage since, the defendant
contends that only in subsequent document, three feet
passage is mentioned and earlier no such mentioning is
made, all these aspects have to be considered only during
the trial. Hence, I do not find any merit in both the
- 14 -
NC: 2023:KHC:28684
MFA No. 7804 of 2015
C/W MFA No. 7803 of 2015
appeals to reverse the finding of the Trial Court and
hence, the appeals are liable to be dismissed.
12. In view of the observations made above, I pass
the following:
ORDER
The appeals are dismissed.
The observation made in these appeals shall not
influence the Trial Court while considering the matter on
merits.
Sd/-
JUDGE
SN
