Karnataka High Court
B Sathish Kumar vs Smt. Prema S Kulal on 18 November, 2025
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RSA No. 1716 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR SECOND APPEAL NO. 1716 OF 2019
BETWEEN:
B SATHISH KUMAR
S/O ANGARA SHRIYAN
HINDU, AGED ABOUT 66 YEARS
R/AT D.NO.23-100/2
'ANUGRAHA', CHOKKABETTU
SURATHKAL, MANGALURU-575 014
...APPELLANT
(BY SRI. VISHWAJITH RAI M AND
SRI. K.N. JAYAPRAKASH, ADVOCATES)
AND:
1. SMT. PREMA S KULAL
W/O SHANKAR KULAL
Digitally signed by HINDU, AGED ABOUT 46 YEARS
PANKAJA S
Location: HIGH R/AT 4TH BLOCK, SITE NO.129
COURT OF KRISHNAPURA
KARNATAKA MANGALURU-575 014
2. SRI. THAJUDDIN
S/O LATE HAMMABBA
MUSLIM, AGED ABOUT 40 YEARS
R/A JUMMA MASJID
ULLAL, MANCHILA
MANGALURU-575 020
...RESPONDENTS
(R1, R2-SERVED-UNREPRESENTED)
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RSA No. 1716 of 2019
HC-KAR
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.08.2019 PASSED IN
RA NO.172/2017 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM., MANGALURU D.K DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 05.09.2017 PASSED IN OS NO.116/2012 ON THE FILE
OF THE II ADDL. CIVIL JUDGE AND JMFC., MANGALURU.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 13.11.2025 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
1. This is plaintiff's second appeal.
2. The plaintiff has filed a suit for permanent prohibitory
injunction against defendants, their men and servants
from blocking the reserved '12 feet RRR road' towards the
southern side of the A schedule property.
3. It is the case of the plaintiff that he is absolute owner
in possession and enjoyment of land measuring 5 cents in
Sy.No.216/3 situated at Surathkal Village, Mangaluru, (for
brevity, "the suit 'A' schedule property") and the same
was purchased by plaintiff vide Sale Deed dated
01.08.2005 from Prema S Kullal - defendant No.1. Since
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there was no approach road to ingress and egress to the
'A' schedule property, defendant No.1, the vendor of
plaintiff has specifically reserved 12 feet road towards the
southern side of the 'A' schedule property which runs east
to west which is clearly mentioned in clause No.8 of the
said Sale Deed. However, on the eastern and southern
side of the 'A' schedule property, the property of
defendant No.1 is situated. Therefore, the aforesaid 12
feet width reserved RRR road is not only grant of way but
also an easement of necessity and the plaintiff and his
family members are using the 12 feet road without any
hindrance from anybody including the defendants.
4. It is further case of the plaintiff that, after the sale of
'A' schedule property, defendant No.1 has sold some
portion of remaining land in Sy.No.216/3 to defendant
No.2 and at present, defendant No.2 appears to have
acquired the portion of the property situated towards the
southern side of the aforesaid reserved 12 feet RRR road.
On 31.01.2012, defendant No.2 and his men in collusion
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started to dig trenches by the side of the southern
compound wall of the 'A' schedule property to put up
compound wall and the same was objected by the plaintiff.
Due to his resistance, the defendants stopped their further
work. Immediately after that the plaintiff lodged a
complaint and the police issued an endorsement and
advised to approach the civil court since the same was a
civil dispute. Thus, the plaintiff filed a suit before the Trial
Court seeking permanent prohibitory injunction restraining
defendants from the plaintiff's peaceful use of the said
road.
5. Though defendant Nos.1 and 2 appeared before the
court through their counsel, defendant No.1 has not filed
written statement and only defendant No.2 contested the
suit by filing the written statement and denying that the
'A' schedule property was converted and sold to the
plaintiff and also denied that there is a way reserved 12
feet road from the beginning as alleged in the plaint.
Further it is contended that the property of defendant No.1
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was closed by a compound wall. Inspite of knowing this
very fact, the plaintiff has filed the suit only with a
malafide intention to coerce the defendants and the Sale
Deed executed in favour of plaintiff was executed by the
GPA holder and he has no authority to grant the said 12
feet road as easement of necessity and thus, there is no
cause of action to file the suit and the suit for bare
injunction is therefore not maintainable. As such,
defendant No.1 prayed to dismiss the suit.
6. The Trial Court, after considering the rival pleadings,
framed relevant issues and after examining the evidence
in detail, dismissed the suit of the plaintiff on the ground
that the plaintiff has failed to establish the existence of 12
feet road and his right by way of grant and easement of
necessity over the disputed road.
7. On appeal by the plaintiff, the First Appellate Court,
upon re-appreciation of evidence, has observed that the
plaintiff has filed the suit on the ground that the road runs
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in the property of the defendants. But the plaintiff has
miserably failed to prove that the alleged road is running
in the lands of the defendants, as such the right of
easement cannot be extinguished. Accordingly, the First
Appellate Court dismissed the appeal by confirming the
judgment and decree dated 05.09.2017 passed in O.S.
No.116/2012.
8. Aggrieved by the same, the plaintiff is before this
Court.
9. I have heard Sri Vishwajith Rai. M and Sri. K.N.
Jayaprakash, learned counsel for the appellant/plaintiff.
Respondents/defendants though served, remained
unrepresented.
10. The primary contention of the plaintiff/appellant is
that the Trial Court and First Appellate Court have erred in
appreciating the recitals in Ex.P7 - Sale Deed executed in
favour of the plaintiff, wherein in clause No.8 of the said
Sale Deed clearly discloses that the purchaser i.e, the
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plaintiff is permitted to use 12 feet wide approach road set
apart in the same survey sub-division and in the vendors
property "running from west to east and touching southern
boundary of the 'A' schedule property for ingress and
egress of men and vehicles and also to lay all cables and
connections over and across the 'A' schedule property. The
said aspect is further fortified in Ex.P6A- the survey sketch
which also depicts the road in the southern boundary of 'A'
schedule property running from east to west. Defendant
No.2 after purchase of the portion of remaining property in
Sy.No.216/3 started to obstruct the plaintiff from using
the said road. As a matter of fact, the Sale Deed executed
in favour of defendant No.2 also depicts that there is a
road to the western side of his property. Further,
defendant No.2 in his cross-examination categorically
admitted the existence of road on the southern side of the
plaintiff's property and also that his property is situated in
the south eastern side and there is a road marked to the
southern side of his property as per Ex.D3. In such
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circumstance, the Trial Court without considering those
aspects, rejected the suit of the plaintiff for the reason
that except Ex.P7, no other documents produced by the
plaintiff to prove the existence of road and the plaintiff
failed to produce the GPA of the original owner Prema S.
Kullal since the plaintiff purchased the 'A' schedule
property through the GPA holder.
11. He also contended that though he produced Ex.P6 -
survey sketch, the Trial Court disbelieved the same for the
reason that the same was prepared without giving notice
to the neighbouring land owners. As such, the First
Appellate Court and Trial Court totally misread the
evidence, despite the plaintiff producing sufficient
evidence to prove his possession, title of the 'A' schedule
property and interference of the defendants. Accordingly,
he prays to allow the appeal.
12. Though notice served to the respondent, they
remained unrepresented.
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13. I have given my anxious consideration to the
contentions of learned counsel for the appellant/plaintiff,
so also to the impugned judgments and decrees passed by
both the Courts.
14. On careful perusal of the evidence and documents
available on record, the following substantial questions of
law arise for my consideration:
i) Whether the finding recorded by the Trial
Court and the First Appellate Court that the
plaintiff has failed to produce any string of
evidence to prove the existence of road way
towards the southern side of suit schedule
'A' property is justified?
ii) Whether the Trial Court and First Appellate
Court erred by not relying Ex.P6(a)-sketch
and not appreciating the admission of DW.1
in his evidence about the existence of road
approach meant to ingress and egress to
the suit 'A' schedule property?
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15. As could be gathered from records, it is an
undisputed fact that the plaintiff is the absolute owner in
possession of suit 'A' schedule property by virtue of the
absolute Sale Deed dated 01.08.2005 as per Ex.P7.
Clause No.8 of said Sale Deed reads as under:
"That the VENDOR has permitted the
PURCHASER to use the 12 Feet wide approach
road set apart in the same Survey Sub Division
and situated in his VENDORS property, running
from West to East and touching the Southern
boundary of the Schedule Property for ingress and
egress of men and vehicles and also to lay all
cables and connections in, over and across, to the
Schedule Property."
16. It is also not in dispute that the vendor of the
plaintiff - Prema S.Kulal sold the remaining extent of 26.50
cents in Sy.No.216/3 to one Zainaba vide sale Deed dated
29.08.2008. Later, the said Zainaba sold the said property
to one Shaista Begum vide Sale Deed dated 20.03.2010.
The said Shaista Begum in turn sold the said property to
defendant No.2 vide Sale Deed dated 28.11.2011. Thus, it
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is clear, the property of defendant No.2 is the remaining
extent of Sy.No.216/3 situated in the south eastern side of
the suit 'A' schedule property. As per recital of Ex.P7
stated supra, the 12 feet wide approach road set in
Sy.No.216/3 running from east to west touching southern
boundary for ingress and egress of suit schedule 'A'
property. The said aspect is even admitted by the
defendant No.2 in his cross examination as under :
"£À£ßÀ D¹ÛAiÀÄÄ ªÁ¢ D¹ÛAiÀÄ zÀQëtPÀÆÌ ªÀÄvÀÄÛ ¥ÀƪÀðPÀÆÌ
§gÀÄvÀÛzÉ JAzÀgÉ ¸Àj. £À£Àß D¹ÛAiÀÄ ªÀÄvÀÄÛ ªÁ¢AiÀÄ D¹ÛAiÀÄ ªÀÄzsÉå
zÀPÀët ¢QÌUÉ ªÀÄvÀÄÛ ¥ÀƪÀð ¢QÌUÉ MAzÉà PÁA¥ËAqï UÉÆÃqÉ
EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. £Á£ÀÄ £À£Àß D¹ÛAiÀÄ zÀQëtPÉÌ, ¥ÀƪÀðPÉÌ,
¥À²ÑªÀÄPÉÌ PÁA¥ËAqï UÉÆÃqÉ PÀnÖgÀÄvÉÛãÉ. ¤r-2 gÀ £ÀPÉëAiÀÄ°è £À£ßÀ
D¹ÛAiÀÄ zÀQët ¢QÌUÉ gÀ¸ÉÛ UÀÄgÀÄw¹gÀÄvÁÛgÉ. ¸ÁQëAiÀÄÄ ¸ÀzÀj gÀ¸ÉÛAiÀÄÄ
£À£Àß D¹ÛUÉ ªÀiÁvÀæ G¥ÀAiÉÆÃV¸À®Ä EgÀÄvÀÛzÉ. £À£Àß D¹ÛAiÀÄ £Á£ÀÄ
Rjâ ¥ÀqÉzÀ ¸ÀªÉð £ÀA. UÀrAiÀĪÀgÉUÉ PÁA¥ËAqï UÉÆÃqÉAiÀÄ£ÀÄß
PÀnÖgÀÄvÉÛãÉ. £Á£ÀÄ PÀnÖzÀ PÁA¥ËAqï UÉÆÃqÉAiÀÄ ¥À²ÑªÀÄPÉÌ ªÀÄ¼É ¤ÃgÀÄ
ºÉÆÃUÀĪÀ vÉÆÃqÀÄ EgÀÄvÀÛzÉ. ªÀÄ¼É ¤ÃgÀÄ ºÉÆÃUÀĪÀ vÉÆÃr£À
¥À²ÑªÀÄPÉÌ zÀÆgÀzÀ°è gÉʯÉé ºÀ½ EgÀÄvÀÛzÉ. ªÉÆzÀ®Ä ºÉýzÀ ªÀļÉ
¤Ãj£À vÉÆÃqÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ MlÄÖ D¹ÛAiÀÄ ¥À²ÑªÀÄPÉÌ EgÀĪÀ
ªÀÄ¼É ¤ÃgÀÄ ºÉÆÃUÀĪÀ vÉÆÃqÀÄ ªÀÄvÀÄÛ FUÀ £À£Àß D¹ÛAiÀÄ ¥À²ÑªÀÄPÉÌ
ªÀÄ¼É ¤ÃgÀÄ ºÉÆÃUÀĪÀ vÉÆÃqÀÄ MAzÉà DVgÀÄvÀÛzÉ. ªÁ¢UÉ CªÀgÀ
D¹ÛUÉ ºÉÆÃUÀ®Ä CªÀgÀ D¹ÛAiÀÄ zÀQëtPÉÌ gÀ¸ÉÛ EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj".
17. The above aspect of the matter further clarified in
Ex.P6(a)-sketch produced along with Ex.P6 in respect of
existence of the approach road. Nevertheless, the survey
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sketch produced by defendant No.2 as per Ex.D3 also
depicts the existence of approach road adjacent to
property of defendant No.2.
18. The Trial Court and the First Appellate Court rejected
the suit of the plaintiff for the reason that Ex.P6(a)-survey
sketch cannot be relied as the same was prepared without
issuing notice to the adjacent land owners, though the
same was not disputed/challenged by anybody. Further,
the Trial Court and the First Appellate Court strangely
came to the conclusion that the recital in Ex.P7 about the
approach road cannot be relied since the GPA Holder of
the original land owner who executed the Sale Deed in
favour of the plaintiff was not examined. The Sale Deed of
the plaintiff was not challenged either by defendant No.1
who was the original owner or defendant No.2. In such
circumstance, both the Courts have grossly erred in
rejecting the suit of the plaintiff on that count.
19. On perusal of the evidence of PW.1 and DW.1, the
possession of the plaintiff on the suit schedule 'A' property
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and the interference of the defendants in the approach
road by blocking the same is clearly established. The
easement acquired by the plaintiff through Ex.P7-Sale
Deed is absolute necessary for the enjoyment of the suit
schedule property by the plaintiff. In such circumstance,
the Trial Court and the First Appellate Court ought to have
granted the relief in favour of the plaintiff as claimed in
the plaint. In that view of the matter, I answer the first
substantial question of law in the "negative" and the
second substantial question of law in the "affirmative".
Accordingly, I proceed to pass the following:
ORDER
i) The appeal is allowed.
(ii) The impugned judgment and decree
dated 27.08.2019 passed by the First
Appellate Court in R.A.No.172/2017 is set
aside.
(iii) The judgment and decree dated
05.09.2017 passed by the Trial Court in
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O.S.No.116/2012 is set aside and the suit of
the plaintiff is decreed.
(iv) The defendants, their legal
representatives, men and servants are
restrained from blocking the RRR road
approach meant to ingress and egress to the
suit schedule 'A' property, thereby interfering
with the plaintiff's use of the said road.
(v) Office to draw the decree accordingly.
SD/-
(RAJESH RAI K)
JUDGE
PKS
