Karnataka High Court
N. Venugopal Reddy vs M/S. Ondot Corporate Services on 11 August, 2025
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MFA No. 7343 of 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2025
BEFORE
R
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 7343 OF 2019 (CPC)
BETWEEN:
N. VENUGOPAL REDDY
S/O P. NARAYANA REDDY
AGED ABOUT 72 YEARS
R/AT NO. 448, BEHIND GOVT. SCHOOL
DODDANEKUNDI
MARATHAHALLI HOBLI
BENGALURU-560 037
...APPELLANT
(BY SRI. Y.R. SADASHIVAREDDY, SENIOR COUNSEL FOR
SRI. RAHUL S. REDDY, ADVOCATE)
AND:
1. M/S. ONDOT CORPORATE SERVICES
PVT. LTD., S/201, SURAJ LAKSHMI APPTS.
56-2, 1ST MAIN, TATA SILK FARM
BASAVANAGUDI, BENGALURU-560 004
Digitally signed by
ANJALI M REP. BY ITS DIRECTOR
Location: High MR. GANESH KAMATH M
Court of Karnataka
2. M/S. KRISHIL CAPITAL HOLDINGS PVT. LTD
No.37, M.N. KRISHNA RAO ROAD
LALBAGH WEST GATE
BASAVANAGUDI
BENGALURU-560 004
REP. BY ITS DIRECTOR
MR. GANESH KAMATH M
...RESPONDENTS
(BY SRI. UDAY HOLLA, SENIOR COUNSEL FOR
SRI. K.J. KAMATH, ADVOCATE FOR C/R1 & R2)
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MFA No. 7343 of 2019
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THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.30.08.2019 PASSED ON IA NO.10 IN
O.S.NO.606/2018 ON THE FILE OF THE VIII ADDITIONAL CITY
CIVIL & SESSIONS JUDGE (CCH-15), BENGALURU, REJECTING
IA NO.10 FILED U/O.39 RULES 1&2 R/W SEC.151 OF THE CPC.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
This Miscellaneous First appeal is directed against the
order dated 13.8.2019 passed by the VIII Additional City,
Civil and Sessions Judge, Bengaluru (CCH No.15) in OS
No.606 of 2018, whereby, the application filed by the
appellant under Order 39 Rule 1 and 2 of CPC seeking
temporary injunction was rejected.
2. The present appeal arises under peculiar facts
and circumstances involving a claim for protection of an
easementary right of access over an existing road which,
according to the appellant, is a sole means of ingress and
egress to his land locked property. The matter raises
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questions pertaining not only to the interpretation of
easementary rights under the Indian Easement act, 1882
but also concerns the practical enforcement of those rights
in situations where such access is threatened due to
allotments made under acquisition schemes by the Public
Bodies such as Karnataka Industrial Area Development
Board(`KIADB' in short).
The factual matrix as asserted by the appellant are
that:
3. He is the absolute owner and possessor of land
measuring 1 acre 7 guntas situated in survey no.15, now
numbered as survey no.215, of Doddanekundi Village,
Marathahalli Hobli, Bengaluru East Taluk. It is averred
that, originally, the land in question was Government land
which came to be granted under a Saguvali Chit in favour
of the appellant's father by name Sri T.Narayana Reddy.
After his demise, the land was subjected to a partition
among his sons. In the said partition, the appellant was
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allotted 1 acre 10 guntas, though three guntas came
under dispute, and presently one acre 7 guntas stands in
the name of the appellant. Over the years, the appellant
constructed small residential units on the said land to
accommodate the economically weaker sections of society
primarily, daily wage labourers. These constructions are in
occupation and are used for residential purposes by
tenants who have been residing there for several years. It
is the case of the appellant that, himself and residents
have been utilizing a particular road for the purpose of
ingress and egress from the property to the main public
road. This road, which is centre to the present dispute
originates from ITPL main road situated on the western
side and passes through the North-western portion of
survey no.16 and sy.no.15 before reaching the scheduled
property in Sy.No.215.
4. It is the definite case of the appellant that, this
access road existed for decades and has been the only
mode of access to his land locked property. The road in
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question is not a newly constructed or informal pathway
but, one which has been used openly continuously and as
of right by the appellant and the occupants of the property
for all practical purposes. Digital evidence, including
google maps and sketches, have been placed on record by
the appellant along with plaint showing the topography
and layout of access route. It is his case that, road is
clearly demarcated and corresponds to well-worn path
used for pedestrian and vehicular movement.
5. As per the averments made in the plaint and in
the interim application so filed in the plaint, it is stated
that difficulty arose when pursuant to acquisition
proceedings undertaken by the KIADB, allotments were
made in favour of the respondents over adjacent lands
including sy.no.15, 16 and 76. It is alleged that, although
initial allotments had been cancelled, they were later
restored following intervention by this Court. Following
such restoration, the respondents began fencing and
constructing compound walls around their respective
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allotments. It is alleged that, in doing so, they obstructed
the existing access road which the appellant and the
residents were using thus, effectively blocking the only
approach road to survey no.215. It is alleged that the
appellant faced with this obstruction and therefore, filed
OS No.606 of 2018 for permanent injunction and
simultaneously moved an interim application under Order
39 Rule 1 and 2 of CPC for temporary injunction
restraining the respondents from interfering with the
usage of the road.
6. It is stated by the appellant that, initially the
trial Court rejected the appellant's application for
injunction on the ground that there was no prima facie
material to show the existence of the road. The said order
was challenged before this Court in MFA 5550/2019, which
was disposed of with a specific observation that, in a suit
for bare injunction a claim for easementary right cannot be
adjudicated unless, it is specifically pleaded and proved.
This Court, in its earlier judgment granted liberty to the
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appellant to suitably amend the plaint so as to incorporate
the claim for easement and thereafter, seek appropriate
interim relief. Acting upon this liberty, the appellant filed
an amendment application which was allowed by the trial
Court. Subsequently, a fresh application under Order 39
Rule 1 and 2 of CPC was filed seeking interim protection in
terms of the amended claim. However, the trial Court once
again rejected the said application by invoking the doctrine
of resjudicata, holding that the earlier order rejecting the
interim prayer had attained finality. It is this order dated
30.8.2019 which is impugned in the present appeal.
7. The learned Sr.Counsel for the appellant
Sri Sadashiva Reddy with all vehemence would submit that
as per the orders of this Court dated 23.9.2019 passed in
this appeal, a survey commissioner was appointed with a
direction to make a local inspection of the property
involved and submit a report to state that whether a road
can be provided to the residents of these houses without
affecting the industrial activity undertaken by the first and
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second respondents. He would further submit that, in view
of the said order, the Survey Commissioner visited the
property and submitted a detailed report showing the
availability of the road to reach the property of the plaintiff
i.e. Sy.No.215. He would further submit that, the because
of the obstruction caused by the respondents herein now,
in fact, the schedule property is land locked and there is
no access to the said property. He would further submit
that the learned trial Court has wrongly rejected the
interim application on the ground of resjudicata discarding
the liberty given by this Court in the earlier MFA by this
Court to seek necessary amendment to the plaint as well
as file fresh application seeking interim prayer. In view of
the said liberty, the appellant filed application seeking
amendment to the plaint and sought declaration The said
application came to be allowed by the trial Court.
Thereafter, the appellant filed the interim application
seeking protection to reach the property for ingress and
egress and make use of the said road so stated in the
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plaint. He submits that, the question of application of
doctrine of resjudicata is erroneous as observed by the
trial Court in view of the liberty granted by this Court in
the other MFA stated above. He would further submit that,
now respondent nos. 1 and 2 in fact closed access to reach
the schedule property and hence, the appellant filed the
interim application to make use of the said road claiming
easementary right over the same to reach his property.
His submission is that, the trial Court has committed
factual and legal error in rejecting the interim application.
8. On the other hand, learned Sri Uday Holla,
Sr.Counsel appearing for respondents would submit that,
he has produced certain documents to show that the
appellant cannot claim any easementary right over the
property in question and when the property is already
allotted after acquisition by the KIADB, the appellant
cannot seek any interim injunction much less, claimed in
the interim application. He would submit that, the
photographs and other necessary documents so produced
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by way of separate compilation do establish that appellant
has no right in the property. With regard to the
appointment of Survey Commissioner, he would submit
that, about the visit of the Commissioner, there was no
notice issued to the respondents. Therefore, the said
report is one sided prepared without the knowledge of the
respondents. To the said report of the commissioner i.e.
survey report, objections are filed and even application is
filed to reject the survey report. He would submit that, in
para.5 of the affidavit annexed to the application for
rejection of survey report, it is categorically stated by the
respondents that, without any notice from the survey
commissioner, the report is prepared. It is alleged that on
4.11.2019, several people barged in the premises of the
respondent including certain persons claiming to be from
the office of Tahsildar stating they want to see the
property without revealing the details or showing any
documents. Therefore, the respondents were kept in dark
about the survey proceedings and hence, it cannot be
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looked into. Further, he would submit that, as per the
memorandum of understanding and other documents, it is
respondents who are exercising their right over the
property and now the appellant cannot seek any relief as
he has not approached the Court with clean hands. He
relies upon the various documents, depositions in the
earlier proceedings. He much relies upon Page.118 of the
compilation submitted by the respondents. It is a sketch
showing temporary access passage no.1 and 2. Relying
upon this sketch, it is submitted that, the respondents
have provided temporary access passage to the appellant
but, even then, the appellant is claiming easementary
right over the property. So far as filing of earlier MFA
No.5550/2019 is concerned and liberty given therein,
there is no dispute as such. In view of the liberty given,
the appellant has amended the plaint.
9. Having heard the learned counsels on both the
side and having meticulously examined the entire records,
including the commissioner's map and digital survey
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documents so also the photographs produced by the
appellant during the course of argument, I am of the
opinion that, the learned trial Court committed a grave
error in holding that, the claim for temporary injunction
was barred by the doctrine of resjudicata to the present
facts of the case. The principle of resjudicata cannot be
applied mechanically to distinct stages of same litigation
where the factual foundation of the relief sought has
undergone material change. The earlier application for
injunction was in the context of a suit for bare injunction.
However, after amendment, the nature of the suit changed
materially and became a declaratory suit involving
assertion of an easementary right of way. This change in
the nature of suit resulted in a new cause of action for the
purposes of considering interim relief and therefore, the
trial Court ought to have considered the application afresh
without being influenced by its earlier findings.
10. More significantly, this Court takes judicial note
of the submissions made by the learned counsel for the
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respondents during the course of hearing of this appeal
relying upon, providing temporary access no.1 and 2 as
shown in sketch so found at page no.118 of the
compilation. Upon a pointed query by the Court and on the
examination of the Commissioner's map, the learned
counsel for the respondents submitted that, there does not
exist a road but, temporary access was provided as shown
in the sketch stated supra. It is further contended that,
without prejudice to the rights of the respondents, they
have provided these temporary access passage nos. 1 and
2 to be used by the appellant for the purposes of ingress
and egress to reach property. This submission of providing
temporary access no.1 and 2 as per the sketch stated
supra is of a vital importance as it not only affirms the
existence of the road but also, constitutes a clear
acknowledgement of the appellant's previous usage of the
road atleast for interim purposes.
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11. On scrupulous reading of the survey sketch,
though it is disputed, at Sl.No.7 it is stated that there
exists a mud road shown in pink colour having an access.
The surveyor has opined that, the said mud road was
being used by the plaintiff to reach survey no.215. No
doubt this survey report is challenged by the respondents
and interim application is filed for rejecting the same but,
now we are at interlocutory stage, therefore, the
objections of the respondents with regard to the validity of
the survey report is to be decided during the course of the
trial. Prima facie, the mud road as shown by the surveyor
in the sketch being used by the plaintiff and even he relied
upon the Google map. The respondents are at liberty to
question the validity of the report during the course of the
trial. Therefore, on the face of it, in view of the providing
temporary access passage nos. 1 and 2 and the survey
report, proves with regard to the usage of the mud road
by the appellant.
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12. The existence and exercise of easementary
right of way is well recognized under Indian law. Section 4
of Indian Easements Act, 1882 defines easement as a right
possessed by the owner or occupier of the land for the
beneficial enjoyment of that land to do or to continue to
do something in or upon the land of another. The essence
of an easement lies in continuity necessity and absence of
alternative access. When a property is land locked and
surrounded by the land of another, a right of way by
necessity arises. In the present case, it is evident from the
factual matrix and the digital survey sketches that the
appellant's property is indeed surrounded on all sides, and
there is no other established route for ingress or egress
apart from the one passing through survey no.15. The
photographs produced by the appellant corroborates the
same. Such a right even if not formally recorded, may
ripen into a recognized easement through long
uninterrupted, and peaceful use as of right. This requires
trial and burden is on the appellant to lead a cogent and
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acceptable evidence to prove such a right of which, he is
alleged to have been deprived of.
13. This Court also finds that, the obstruction of the
road by respondents, if permitted to continue, would result
in grave hardship not only to the appellant but, to the
numerous families residing in the property who rely on
that road for access to education, employment, medical
aid and all other basic civic necessities. Denial of such
access may will amount to deprivation of livelihood and
human dignity. The public interest involved in protecting
such route cannot be understated, particularly when the
respondents themselves have provided temporary access
no. 1 and 2 as stated supra and have not seriously
disputed the existence of the property of the plaintiff.
14. In view of the facts and the circumstances as
narrated above and more importantly, taking into account
the unequivocal submission of providing temporary access
passage no. 1 and 2 for the benefit of the appellant, this
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Court finds it appropriate with the specific observations to
ensure that the easementary access being used by the
appellant is not hindered pending final adjudication of the
suit.
15. Accordingly, this Miscellaneous First Appeal is
disposed of with an observation that, the respondents
shall not obstruct or interfere with the appellant's access
to his land in Sy.No.215 through the road situated in
Sy.No.15P as shown by the Surveyor in his sketch, and
that the said access shall remain open for the appellant's
use for ingress and egress, until disposal of OS
No.606/2018.
16. In view of the facts and circumstances brought
on record, the learned trial Court is requested to dispose
of the main suit as expeditiously as possible preferably
within 9 months from the date of receipt/production of this
order. The rights and contentions of the parties shall
remain open and subject to the outcome of the suit and no
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observations made herein shall influence the final
adjudication of the suit on merits.
Under the circumstances, costs made easy.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK
