Karnataka High Court
Sri Jayantha vs St Peter Higher Primary School on 9 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1300 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1300 OF 2018 (INJ)
BETWEEN:
SRI JAYANTHA
SINCE DEAD HIS LEGAL HEIRS
ARE REPRESENTATIVES
1. SEETHA
W/O LATE JAYANTHA
AGED ABOUT 68 YEARS
2. NAGASHREE
AGED ABOUT 39 YEARS
D/O LATE JAYANTHA
3. NAGAMANI
Digitally AGED ABOUT 37 YEARS
signed by
SUMA B N D/O LATE JAYANTHA
Location:
High Court ALL ARE R/AT NEAR ST. PETER HIGHER PRIMARY
of Karnataka
SCHOOL, KOTTARA
MANGALURU TQ, D.K - 575 006.
...APPELLANTS
(BY SRI. Y RAJENDRA PRASAD SHETTY, ADVOCATE)
AND:
1. ST. PETER HIGHER PRIMARY SCHOOL
KOTTARA, MANGALURU TQ, D.K.
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RSA No. 1300 of 2018
REPRESENTED BY ITS CORRESPONDENT
REV. FR. GODFREY SALDANHA
AGED ABOUT 84 YEARS
R/O MOST HOLLY REDEEMER CHURCH
DEREBAIL VILLAGE
MANGALURU TQ, D.K - 575 006, D.K.
2. SMT. RAMESHWARI SHETTY
AGED MAJOR
HUSBAND'S NAME NOT KNOWN
EX.CORPORATOR
DEREBAIL VILLAGE
MANGALURU TQ D.K. - 575 006.
...RESPONDENTS
(BY SMT. SUSHMITHA SURESH A/W CYRIL PRASAD PAIS
ADVOCATE FOR R1, NOTICE TO R2 DISPENSED WITH VIDE
ORDER DATED 28.06.2018)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.04.2018
PASSED IN R.A.NO.30/2010 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
MANGALURU, D.K., DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
12.01.2010 PASSED IN O.S.NO.136/1999 ON THE FILE OF
THE I ADDITIONAL CIVIL JUDGE (JR.DN), MANGALORE,
D.K.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1300 of 2018
JUDGMENT
This appeal is by the defendants 3 to 5 who are
the legal representatives of deceased defendant No.1,
aggrieved by the Judgment and decree dated 12.01.2010
passed in O.S.No.136/1999 on the file of I Additional Civil
Judge (Jr.Dn), Mangalore, Dakshina Kannada (trial Court)
by which the trial court had granted relief of permanent
injunction in favour of respondent No.1/plaintiff restraining
the appellants/defendants from trespassing into the
schedule property or forming any roadway in the suit
schedule property or in any way interfering with the
peaceful possession and enjoyment of the same by the
plaintiff. It further directed the plaintiff to remove the mud
dumped in item No.1 of the suit schedule property at the
cost of the defendants. The said Judgment and decree has
been confirmed by Judgment and order dated 23.04.2018
passed in R.A.No.30/2010 on the file of II Additional
Senior Civil Judge and CJM, Mangalore (first appellate
Court).
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2. The above suit in O.S.No.136/1999 was filed by
respondent/plaintiff against appellants herein for the relief
of bare injunction contending interalia that the plaintiff is
an Educational Institution managed by Catholic Board of
Education, Mangalore and plaintiff has been in possession
and enjoyment of the suit property since more than 60
years. That the house of the defendant No.1 is situated
on the northern side of the suit property and that the
house of the defendant No.1 has got approach road from
the northern side of the property. That defendant No.1
with an intention to have approach to his property through
the southern side of his property illegally attempted to
encroach upon suit property. That it is further contended
that the attempt of the defendant to encroach upon the
suit property of the plaintiff is illegal. It is also contended
that the Government authorities have not acquired the suit
property for the purpose of forming any road. That the
illegal act of the defendant to encroach upon the suit
property by way of dumping mud etc., near the school
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building constrained the plaintiff to approach the Court for
the relief of permanent injunction.
3. In the written statement filed by defendant No.1
it is contended that suit was bad for non-joinder of
necessary parties. It is contended that defendants are
unnecessary parties as they have nothing to do with
alleged road repairs. It is also contended that it is the
duty of Mangalore City Corporation to maintain road in a
good condition. That the Mangalore City Corporation is
carrying on the work of metalling the road to be used by
public and as such Mangalore City Corporation was a
necessary party to the suit. It is further contended that
defendant No.1 and his ancestors were using the road
from time immemorial and have perfected their right of
easement and that cannot be interfered with by the
plaintiff and said road is also used by other persons of the
locality to access to their respective properties and
defendant has been taking his car through this road since
several years and plaintiff is thus unnecessarily interfering
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with right of the defendant. The other allegation of
interference by the defendant No.2 is also denied.
4. During pendency of the suit defendant No.1
passed away as such legal representatives are brought on
record who file additional written statement contending
the suit against them was not maintainable as the suit was
one for prohibitory injunction filed against defendant No.1
and there was no cause of action to implead defendants 3
to 5 as party to the suit.
5. On consideration of pleadings, trial court framed
issues and recorded the evidence and by Judgment and
decree dated 12.01.2010 decreed the suit restraining the
defendants from trespassing and or forming any roadway
in the plaint schedule property or interfering with the
peaceful possession and enjoyment of the plaint schedule
properties by the plaintiff. It was further directed that the
plaintiff can remove mud at the cost of defendants.
6. Being aggrieved by the said Judgment and
decree the legal representatives of defendant No.1
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preferred regular appeal in R.A.No.30/2010 on the file of
II Additional Senior Civil Judge and CJM, Mangalore, D.K.
On consideration of grounds urged, the first appellate
Court framed the points for consideration and on re-
appreciation of the evidence dismissed the appeal on
23.04.2018 confirming the Judgment and decree passed
by the trial court dated 12.01.2010. Being aggrieved by
the same the appellants being legal representatives of
defendant No.1 are before this Court.
7. This Court by order dated 28.06.2018 admitted
the appeal for consideration of following substantial
questions of law:
"i) Whether the Trial Court erred in not
framing an issue regarding easementary rights
raised by the defendants and that the road
located in between the properties of plaintiff
and the defendants is used by the public
including the defendants?
ii) Whether the Courts below erred in not
appreciating the evidence on record which
prove that the road/pathway lying between the
properties of the plaintiff and the defendants is
a government land?".
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8. When the matter was taken up for final disposal
on 04.01.2024 counsel for appellants submitted that the
Mangalore City Corporation has now formed road on the
plaint schedule property in respect of which injunction
order has been granted. On such submission,
Ms.Sushmitha Suresh, learned counsel for respondent
No.1 sought a short accommodation to seek instructions in
the matter. Accordingly, matter was posted to
08.01.2024. On 08.01.2024 learned counsel for
respondent No.1 again sought accommodation till today to
confirm if the road was formed by Mangalore City
Corporation. Today she submits and confirms that the
Mangalore City Corporation has indeed formed road to be
utilised by the public at large on the portion of suit
schedule property.
9. Learned counsel for appellants furnishes
photographs of the existence of public road now stated to
have been formed by the Mangalore City Corporation. The
said road is now named as "Sankesha Main Road".
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10. Learned counsel for respondent No.1 does not
dispute the existence of road. Said photographs are taken
on record.
11. Thus, in view of the admitted position of the fact
that Mangalore City Corporation has now formed a road by
laying concrete inter locking blocks which commences
from Kottara Peri to Sankeshwara Main Road, decree of
injunction granted against the defendants thus becomes
redundant and infructuous.
12. At this juncture counsel for respondent No.1
submits that appellants are entitled for the compensation
as the said road has been formed on the property
belonging to the respondent No.1 without their consent.
Needless to state if the respondent No.1 is entitled for any
compensation in view of the Mangalore City Corporation
having formed road in the suit schedule property, they are
entitled to seek such compensation if permissible under
law. Said question cannot be gone into in this appeal.
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13. In view of the fact and circumstance of the case
namely the Mangalore City Corporation having formed a
road in the portion of suit schedule property in respect of
which decree of injunction was granted by the trial Court
and first appellate Court, the same becomes unenforceable
inasmuch as the very subject matter of injunction is no
more in existence as claimed. No benefit of any nature can
be claimed or drawn by the respondent No.1/plaintiff from
the impugned judgment and decree as against the
appellants. In that view of the matter, nothing survives for
consideration in this appeal.
Accordingly, appeal is disposed of.
Sd/-
JUDGE
SBN
