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 4 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 5 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 6 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, 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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. 15 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 16 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 17 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