- 1 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF AUGUST, 2025 BEFORE 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 REP. BY ITS DIRECTOR MR. GANESH KAMATH M 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) R Digitally signed by ANJALI M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 3 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 4 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 5 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 6 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 7 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 8 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 9 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 10 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 11 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 12 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 13 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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. - 14 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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. - 15 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 16 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 17 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 - 18 - HC-KAR NC: 2025:KHC:30851 MFA No. 7343 of 2019 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 List No.: 1 Sl No.: 1