Karnataka High Court
Sri Sathish B vs Sri Puttaraju T on 25 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.5996/2024 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.5655/2024 (CPC)
IN M.F.A.NO.5996/2024:
BETWEEN:
SRI SATHISH B,
S/O. LATE SRI BASAVEGOWDA,
AGED ABOUT 52 YEARS,
R/AT NO.3, R.R.LAYOUT,
KARISHMA HILLS ROAD,
GUBBALALA,
BENGALURU-560 061. ... APPELLANT
(BY SRI R.B.SADASIVAPPA, ADVOCATE)
AND:
1. SRI PUTTARAJU T.,
S/O. LATE SRI THOPAIAH,
AGED ABOUT 49 YEARS,
R/AT FLAT NO.24042, BUILDING 2,
TOWER 4, 4TH FLOOR,
PRESTIGE FALCON CITY.
KONANAKUNTE CROSS,
KANAKAPURA MAIN ROAD,
BENGALURU-560 062.
2. SRI. S.N.SHIVASHANKAR,
S/O. SRI. S.D. NANJUNDAPPA,
AGED ABOUT 47 YEARS,
2
R/AT NO.10, 4TH CROSS,
2ND MAIN, AKSHAY NAGAR,
YELENAHALLI MAIN ROAD,
BENGALURU -560 068. ... RESPONDENTS
(BY SRI RAKESH B. BHAT, ADVOCATE FOR C/R1 AND R2)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 29.05.2024 PASSED ON
I.A.NO.2 IN O.S.NO.6498/2023 ON THE FILE OF THE XII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
(CCH NO.27), ALLOWING I.A.NO.2 FILED UNDER ORDER 39
RULE 1 AND 2 OF CPC.
IN M.F.A. NO.5655/2024:
BETWEEN:
SRI SATHISH B.,
S/O. LATE SRI. BASAVEGOWDA,
AGED ABOUT 52 YEARS,
R/AT NO.3, R.R. LAYOUT,
KARISHMA HILLS ROAD,
GUBBALALA,
BENGALURU -560061. ... APPELLANT
(BY SRI R.B.SADASIVAPPA, ADVOCATE)
AND:
1. SRI PUTTARAJU T,
S/O. LATE SRI. THOPAIAH,
AGED ABOUT 49 YEARS,
R/AT FLAT NO.24042, BUILDING 2,
TOWER 4, 4TH FLOOR,
PRESTIGE FALCON CITY,
KONANAKUNTE CROSS,
KANAKAPURA MAIN ROAD,
BENGALURU - 560 062.
3
2. SRI. S.N. SHIVASHANKAR,
S/O. SRI. S.D.NANJUNDAPPA,
AGED ABOUT 47 YEARS,
R/AT NO.10, 4TH CROSS,
2ND MAIN, AKSHAY NAGAR,
YELENAHALLI MAIN ROAD,
BENGALURU - 560 068. ... RESPONDENTS
(BY SRI RAKESH B. BHAT, ADVOCATE FOR C/R1 AND R2)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED 29.05.2024
PASSED ON I.A.NO.1 IN OS.NO.6498/2023 ON THE FILE OF THE
XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CCH-27,
BENGALURU, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 OF CPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. These two appeals are filed challenging the common
order dated 29.05.2024 passed on I.A.Nos.1 and 2 in
O.S.No.6498/2023 allowing the applications and granting the
relief of temporary injunction.
3. The factual matrix of the case of the plaintiffs before
the Trial Court is that the plaintiffs filed the suit seeking the
relief of declaration to declare that the plaintiffs have
easementary right to access through the schedule 'E' property
and also sought for perpetual injunction restraining the
defendant from using the schedule 'E' road as an access to the
schedule 'B', 'C' and 'D' property. The plaintiffs contended that
the plaintiffs had purchased the agricultural land bearing
Sy.No.59/1 measuring 1 acre 24 guntas along with 31 guntas of
kharab land, totally measuring 2 acres 15 guntas which is
morefully described in the schedule. It is also the case of the
plaintiffs before the Trial Court that the defendant also
purchased the same extent of land with 9 guntas of kharab and
the defendant's land is re-numbered as Sy.No.59/24 and the
plaintiffs land is numbered as Sy.No.59/1. The plaintiffs also
sought the interim order while filing I.A.Nos.1 and 2 seeking the
relief of easementary right and restraining the defendant from
interfering with the plaintiffs accessing the suit 'E' schedule
property to enjoy his properties at schedule 'B', 'C' and 'D'
properties.
4. It is contended in the plaint that the property
bearing Sy.No.59/1 measuring 4 acres, Sy.No.59/2 measuring in
all 7 acres 7 guntas and Sy.No.58 measuring 3 acres 10 guntas
were the properties of one Sri M. Shamanna and his family
members, who have got partitioned the above said properties
under a registered partition deed dated 16.10.2003. It is also
the case of the plaintiffs that the land in Sy.No.59/2 measuring 4
acres 3 guntas was allotted in favour of one Sri S. Lakshman and
remaining 4 acres in favour of one Sri S.Sriram. The land in
Sy.No.59/1 measuring 4 acres was allotted in favour of one
S.Kantharaju and his wife Smt.Varamahalakshmi. The land in
Sy.No.58 were allotted in favour of daughters of said Shamanna
by allotting each 20 guntas of land. It is the case of the
plaintiffs that for enjoying the property bearing Sy.Nos.59/1,
59/2 and 58, the original landlords, i.e., Shamanna's family have
left 15 feet width road passing from the west to east, which is
connecting the road situated on the western side of land bearing
Sy.Nos.59/1 and 59/2. The said road is situated between the
land bearing Sy.Nos.59/1 and 59/2. It is contended that the
said S.Kantharaju and Varamalakshmi have sold the land
bearing Sy.No.59/1 measuring 4 acres in favour of one
Smt.Girija, who in turn sold portion of land measuring 1 acres 24
guntas with kharab of 9 guntas in favour of the defendant under
a registered sale deed dated 20.04.2018, which is morefully
described as 'A' schedule property. The said Smt.Girija also sold
the remaining land in Sy.No.59/2 measuring 2 acres 15 guntas
which includes the kharab of 34 guntas in favour of the plaintiffs
under registered sale deed dated 20.04.2018. The said property
is described as 'B' schedule property. The plaintiffs also
purchased other schedule properties belonging to the very same
family, which is shown as 'C' and 'D' schedule properties.
Hence, it is their claim that the suit schedule 'B', 'C' and 'D'
properties belongs to the plaintiffs.
5. It is also the case of plaintiff No.1 that he entered
into an agreement of sale with the defendant in respect of the
property which was purchased by the defendant. Subsequently,
the defendant wanted to retain 14 guntas of land and modified
the supplementary deed to sell 1 acre 10 guntas in favour of the
plaintiff. The defendant did not come forward to sell the
property and hence the plaintiff had filed a suit in
O.S.No.1001/2023 in respect of 'A' schedule property. It is the
contention of the plaintiffs that the defendant with an intention
to deprive the right of the plaintiffs to enjoy the road schedule
'E' property, which is to enjoy his schedule 'B' to 'D' properties,
started to interfere and caused obstruction and hence filed the
suit seeking easementary right as well as temporary injunction.
6. The defendant appeared and filed the objection
statement opposing the applications. It is specifically contended
that he has road over the southern side of the property, but
whereas in the sale deeds of the plaintiffs are considered, there
is no reference showing existence of road on any side of their
property bearing Sy.Nos.59/1 and 59/2. The plaintiffs have road
on their western side and even they have separate 15 feet wide
road on their northern side. When such being the case, the
question of granting easementary right does not arise. It is
contended that the plaintiffs have the alternative ways and
hence the question of claiming easementary right over the suit
'E' schedule property does not arise and prayed to dismiss the
applications.
7. The Trial Court having considered the pleadings of
the parties, framed the points for consideration and allowed the
applications in coming to the conclusion that if the registered
partition deed dated 16.10.2003 is perused, there is a
categorical reference stating that on the southern side of land in
Sy.No.59/1 and northern side of Sy.No.59/2, which means to
say between these two properties they have left 15 feet wide
road. Sy.No.59/1 is situated on the northern side of 15 feet
road, Sy.No.59/2 is situated on the southern side of 15 feet
road. In Sy.No.59/1, there is a larger extent of land measuring
4 acres which includes kharab. Both the plaintiffs and the
defendant got purchased the entire Sy.No.59/1 under two
separate sale deeds on the same day. The Trial Court also taken
note of the portion of land purchased by the defendant and also
taken note that the southern boundary of the defendant's
property is little confusing. In fact, it should be like south by
private road, thereafter land bearing Sy.No.59/2. As the road on
southern side of the defendant property was existed since quite
long time atleast from the year 2003, when original landlords
have partitioned under a partition deed dated 16.10.2003. It
means to say, the road existed on the southern side of the
defendant property was not carved by the defendant and it was
carved by the original owners. In fact, as per the sale deed
dated 20.04.2018 of the defendant, the road situated on the
southern side of the defendant is carved within his land for his
beneficial enjoyment, on which the plaintiffs have no right. If
the southern side of boundary of the land purchased by the
defendant is perused, on the southern side land bearing
Sy.No.59/2 is situated, thereafter there is a road, which is for
the benefit of the plaintiffs. Hence, the Trial Court not accepted
the contention of the defendant and allowed the applications.
8. Being aggrieved by the said order, the present
appeals are filed before this Court.
9. The learned counsel for the appellant/defendant in
his arguments not disputes the fact that the property was
allotted in favour of one Sri Kantharaju and his wife Smt.
Varamahalakshmi in view of the partition deed dated 16.10.2003
and the said property was sold in favour of Smt. Girija on
28.05.2011. The learned counsel contend that while selling the
property, there is no any reference of road in favour of
Smt.Girija. The learned counsel contend that the plaintiffs and
the defendant have purchased the said property from Smt.Girija
on 20.04.2018 and in the said sale deeds also there is no any
reference of existence of road on the southern side of the
property of the defendant. The learned counsel contend that the
suit is filed for the relief of specific performance. The learned
counsel contend that the property belonging to the plaintiffs and
the defendant is converted and no road is shown in the same
also. The learned counsel contend that on the three sides there
is a road to the plaintiffs. The learned counsel contend that the
road which is in existence on the southern side of the property of
the defendant exclusively belongs to the defendant. The learned
counsel contend that the road is shown in the sale deed
Sy.No.59/2 and private road. In Sy.No.59/2 also there is a road
and all can access the same and also explained the boundaries
mentioned in the sale deeds which came into existence and
there is no right of easement in respect of the defendant's
property. The learned counsel contend that the suit itself is not
maintainable as there is no land of the plaintiffs on the southern
side and even the surrounding land belong to him since he had
purchased the remaining property belonging to the family. The
suit is filed only to cause harassment to the defendant since
another suit is filed for the relief of specific performance. The
Trial Court failed to consider the material on record and hence, it
requires interference of this Court.
10. Per contra, the learned counsel for the
respondents/plaintiffs would vehemently contend that the
plaintiffs are claiming the easement on account of partition
between the family members in the year 2003. The partition
was taken place in 2003 among the family members and roads
are formed before the partition and in the said partition
document itself shown the formation of the road. It is not in
dispute that the defendant's property is re-numbered as
Sy.No.59/24. The learned counsel contend that even while
selling the property, the road is shown in the sale deed. The
learned counsel relies upon the photographs produced before the
Court which clearly shows the existence of road. The learned
counsel contend that the road was formed long back and even
trees which are in existence on the either side of the road clearly
shows that after formation of the road trees were planted and
now the trees have grown up. The learned counsel contend that
the mother deed i.e., the partition deed of the year 2003 clearly
discloses the existence of 15 feet road. It is not in dispute that
both the plaintiffs and the defendant purchased the property
from the same owner and other portion of the property
belonging to the other family members was also purchased by
the plaintiffs and easement is claimed as grant and not as
easement of necessity or prescription. The learned counsel
contend that the Trial Court in detail taken note of the material
on record, particularly the mother deed and it does not require
interference of this Court.
11. Having heard the learned counsel for the appellant
and the learned counsel for the respondents and also considering
the documents which have been placed before the Court, the
points that arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in
allowing I.A.Nos.1 and 2 and whether it
requires interference of this Court?
(ii) What order?
12. Having heard the learned counsel for the respective
parties and on perusal of the order impugned, the applications
filed before the Trial Court i.e., I.A.Nos.1 and 2 and also
considering the objections statement filed by the defendant and
also considering the averments of the plaint, wherein relief of
declaration of easementary right is sought, the Court has to take
note of the material available on record. It is not in dispute that
originally the property belonged to the family of one Shamanna.
It is also not in dispute that partition was taken place between
the family members in 2003 through a registered partition deed.
The crux of the issue is with regard to existence of the road on
the southern side of the property of the defendant. The
defendant not disputes the existence of road, but claims that the
same is a cart road. It is the contention of the defendant that
the same exclusively belongs to the defendant. The plaintiff has
no right and there is an alternative road to access the land of the
plaintiff. This Court has already pointed out that originally the
property belongs to the family of Shamanna and there was a
partition among the members of the family. It is important to
note that the plaintiffs are claiming the easement of grant based
on the document of partition deed of the year 2003. The Court
has to take note of the mother deed i.e., partition deed dated
16.10.2003 and in terms of the partition deed, the original
owner Shamanna and his wife are made as first parties to the
said partition. The children became other parties in the
compromise. The issue is with regard to Sy.No.59/1. Now the
same is phoded as Sy.No.59/24 in respect of the defendant's
property and remains as Sy.No.59/1 in respect of the plaintiffs'
property. It is important to note that 'D' schedule property is
shown as belonging to the vendors of the plaintiffs and item
No.2 to the extent of 4 acres i.e., subject matter in issue. In
respect of Sy.No.59/1 on the southern side it is shown as 15 feet
road and then 'C' schedule property which was allotted in favour
of Sriram. It is important to note that the said Sriram also sold
the property in favour of the plaintiffs. Hence, it is clear that on
the southern side of the property there is Sy.No.59/1, 15 feet
road is shown and it is clear that 15 feet road is in existence
even prior to 2003. The Trial Court also taken note of the said
fact into consideration and comes to the conclusion that 15 feet
road is in existence from longer period. Hence, it is clear that
for cultivation of the entire property belonging to the family of
Shamanna, the road has been formed prior to partition. When
such being the case, the contention of the defendant that it is
only a cart road and only for the exclusive usage of the
defendant cannot be accepted. The Trial Court also taken note
of the fact that this road was not formed by the present
defendant subsequent to the purchasing of the property from the
vendor and the same was in existence prior to that and the same
is for common usage of the family members and whatever right
accrued to the defendant is also subject to the usage of the
remaining property which belongs to the original family.
13. The very contention of the learned counsel for the
appellant is that in the subsequent sale deed of Smt. Girija and
also the sale deeds executed in favour of the plaintiffs and the
defendant, there was no any reference of road. But the fact is
that in respect of Sy.No.59 item No.2 of 'D' schedule property,
Sy.No.59/1 to the whole extent of 4 acres, the property is
bounded with on the southern side 15 feet existence of road and
then the 'C' schedule property, which is allotted in favour of
Sriram. The mother deed document discloses the existence of
15 feet road and photographs which have been produced by
both the plaintiffs and the defendant shows the existence of the
road and also gate is found in the entrance of the said road. The
apprehension of the plaintiffs before the Trial Court is that by
using that road, blocking accessing the road and also the main
claim of the plaintiffs is that in order to access the land at 'B', 'C'
and 'D' schedule property, the road which was formed by the
family itself long back prior to the partition have the access. It
is not in dispute that the plaintiffs also sold some portion of the
property subsequent to purchasing of the property and the
learned counsel for the appellant brought to the notice of this
Court that in the said sale deeds also no such roads are shown
by the plaintiffs. But the learned counsel for the
respondents/plaintiffs brought to the notice of this Court
mentioning of the road in existence. The fact is that when the
property originally belongs to the family of Shamanna and road
has been formed long back for usage of the said road for the
entire land of Sy.Nos.59/1, 59/2 and 58, which belongs to the
family of Shamnna, now the defendant cannot restrain the other
purchasers.
14. This Court already pointed out that both the plaintiffs
and the defendant have purchased the property from common
vendor Smt.Girija, who had purchased the property from the
family member of Shamanna in the year 2011 and in turn sold
the same in the year 2018 on the very same day in favour of the
plaintiffs and the defendant. Though no such reference is made
in the subsequent sale deed, but the fact is that the said road is
in existence prior to 2003 and mother deed discloses the very
existence of the road on the southern side of Sy.No.59/1 to the
entire extent of 4 acres including kharab. The fact is that both
the plaintiffs and the defendant purchased the same extent of
portion including kharab land to the extent of 9 guntas in favour
of the defendant and 24 guntas in favour of the plaintiffs. When
such being the material on record, I do not find any error
committed by the Trial Court in passing the order granting
temporary injunction. For exercising the appellate jurisdiction, if
the Court finds the non-consideration of material on record, then
only the Court can exercise its appellate jurisdiction or otherwise
cannot interfere with the findings of the Trial Court. The Trial
Court also taken note of particularly the mother deed of partition
deed of the year 2003 which came into existence 20 years back
and also existence of road formed prior to 2003 and hence
passed an order restraining the defendant from interfering with
and causing of obstruction for usage of schedule 'E' property in
order to take access to go to 'B', 'C' and 'D' schedule property
and hence it does not require any interference of this Court.
15. In view of the discussions made above, I pass the
following:
ORDER
Both the appeals are dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
MD
