Karnataka High Court
Guruling S/O Ramapa Chougala vs Shivalinga S/O Mallapa Pchapure on 24 February, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2025:KHC-D:3747
WP No. 101225 of 2025
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.101225 OF 2025 (GM-CPC)
BETWEEN:
1. GURULING S/O RAMAPA CHOUGALA
AGE. 66 YEARS,
OCC. AGRICULTURE,
2. SMT. INDRAVVA
W/O GURULING CHOUGALA
AGE: 63 YEARS,
OCC: AGRICULTURE,
3. KALLAPPA
S/O GURULING CHOUGALA
Digitally signed by
AGE: 44 YEARS,
ASHPAK
KASHIMSA OCC: AGRICULTURE
MALAGALADINNI
Location: HIGH
COURT OF
KARNATAKA 4. SMT. MAHADEVI
DHARWAD
BENCH W/O KALLAPPA CHOUGALA
AGE: 39 YEARS,
OCC: AGRICULTURE
5. BASAVARAJ
S/O GURULING CHOUGALA
AGE: 36 YEARS,
OCC: AGRICULTURE
6. SMT. SAVITRI
W/O BASAVARAJ CHOUGALA
AGE: 31 YEARS,
OCC: AGRICULTURE
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NC: 2025:KHC-D:3747
WP No. 101225 of 2025
ALL ARE R/O NAGARMUNNOLI-591222
TQ. CHIKODI,
DIST. BELAGAVI
...PETITIONERS
(BY SRI. SHRIHARSH A NEELOPANT,ADVOCATE)
AND:
1. SHIVALINGA
S/O MALLAPPA PACHAPURE
AGE. 52 YEARS,
OCC. AGRICULTURE,
2. PARAPPA
S/O MALLAPA PACHAPURE
AGE: 50 YEARS
OCC: AGRICULTURE
3. RAMESH@ RAMAPPA
S/O MALLAPPA PACHAPURE
AGE: 48 YEARS
OCC: AGRICULTURE
4. BASAPPA
S/O MALLAPPA PACHAPURE
AGE: 46 YEARS
OCC: AGRICULTURE
ALL ARE R/O BELKUD-591222
TQ. CHIKKODI
DIST. BELAGAVI
...RESPONDENTS
(BY SRI. RAMESH. I ZIRALI., ADVOCATE FOR R1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OR DIRECTION
OR ORDER IN THE NATURE OF WRIT OF CERTIORARI TO QUASH THE
IMPUGNED ORDER DATED. 06.02.2025 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE, CHIKODI IN M.A. NO. 19/2024 AS PER
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NC: 2025:KHC-D:3747
WP No. 101225 of 2025
ANNEXURE-A AND CONFIRM THE ORDER DATED. 16.11.2024 IN O.S.
NO. 435/2024 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC,
GOKAK ON IA.. NO. I FILED BY THE PLAINTIFFS/ RESPONDENTS
UNDER ORDER XXXIX RULE 1 AND 2 OF CPC AS PER ANNEXURE-B
AND ETC.
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioners are before this Court seeking for the following reliefs:
i. To issue a writ or direction or order in the nature of writ of certiorari to quash the impugned order dated 06.02.2025 passed by the Principal Senior Civil Judge, Chikodi in M.A.No.19/2024 as per Annexure-A and confirm the order dated 16.11.2024 in O.S.No.435/2024 passed by the Principal Civil Judge and JMFC, Gokak on I.A.No.1 filed by the plaintiff/respondents under Order XXXIX Rule 1 and 2 of CPC as per Annexure-B. ii. Grant any other relief as deems fit by this Hon'ble Court in the circumstances of case in the interest of justice and equity.
2. The respondents had filed a suit in O.S. No.435/2024 before the Principal Civil Judge and JMFC, Chikodi, seeking for injunction from causing obstruction to the plaintiff's enjoyment on the suit road. In the said -4- NC: 2025:KHC-D:3747 WP No. 101225 of 2025 suit, an interlocutory application for injunction has been filed. The trial court vide its order dated 16.11.2024 dismissed the said application. The plaintiffs having challenged the same in M.A. No.19/2024, the First Appellate Court vide its order dated 6.02.2025 allowed the same, set aside the order passed by trial court and thereafter allowed IA No.1 filed in OS No.435/2024, permitting the plaintiffs to make use of the cart road, shown in the sketch, for a period of one year from the date of the order and directed the plaintiffs to assist the court in the disposal of the suit. The First Appellate Court also fixed a composite cost of Rs. 1 lakh to be deposited if there is a failure of the plaintiff in the suit and a further direction was issued that the plaintiffs shall not use more than the width of the cart as shown in the sketch. It is challenging the same, the defendant is before this court. -5-
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3. Sri.Shriharsh Nelopant, learned counsel appearing for the defendants/petitioners, submits that there is no cart track going in the property of the defendant. The claim made is as regards the land in survey No. 5+6/A which does not belong to the defendant but belongs to the son of the defendant and as such, no injunction order could have been passed in respect thereof. His further submission is that there is no right of way which has been sold by the petitioner in favour of the respondents, let alone as claimed by the plaintiff. The plaintiff has access from other locations to other roads. The suit is not one for declaration of easementary right but is a bare injunction suit and as such is not maintainable.
4. Sri.Ramesh I.Zirali, learned counsel appearing for the plaintiff would submit that the sale deed has been executed way back on 9.04.2003. The plaintiffs have been making use of the said access road/cart road from survey No. 4A/1 going through survey No. -6- NC: 2025:KHC-D:3747 WP No. 101225 of 2025 5+6/A and reaching the property of the petitioner in R.S. No.50. It is only now that the defendants have sought to prevent the petitioner-plaintiff, from accessing the property requiring the suit to be filed.
5. In view of the submissions of the petitioner and the respondent, this court had appointed the ADLR as a Court Commissioner to inspect the properties and their surroundings and submit a report as regards the roads leading up to R.S. No.50. A report has been filed today indicating that there is a cart road in existence in 2+3/A/2, as also in 4A/1. The cart road at 2+3/A/2 leads up to land in R.S.No.50. However, it is stated that a portion of the property falling in survey No. 5+6/A which is claimed by the petitioner to be a cart road, is not so, recently somebody has created a road therein.
6. Accepting and relying upon the said submission of the report, learned counsel for the petitioner would submit that there has been no road in existence at -7- NC: 2025:KHC-D:3747 WP No. 101225 of 2025 any point of time and it is the plaintiff who has now formed the road during the pendency of this above writ petition to try and make out the existence of a road. As such, he submits that the claim made by the plaintiff is required to be rejected, the order passed by the First Appellate Court is set aside and the order passed by trial Court is confirmed.
7. Sri. Ramesh I.Zerali, learned counsel appearing for respondents would submit that the aspect of there being easementary right is not in dispute inasmuch as in the sale deed executed in favour of the plaintiff there is a clear and categorical recital that along with the property the right of access have been sold. The property sold by the father to the plaintiffs in R.S. No.50, the property in R.S. No.5+6/A is owned by the son. The properties being the properties of the same family, the plaintiff had been provided an access through No. 5+6/A and 2+3/A/2 to reach R.S. No.50 and as such, he submits that this fact -8- NC: 2025:KHC-D:3747 WP No. 101225 of 2025 has been taken into consideration by the First Appellate Court ought not to be disturbed.
8. Heard Sri.Shriharsha A.Neelopant, learned counsel for the petitioner and Sri.Ramesh I.Zirali, learned counsel for the respondents. Perused papers.
9. Though in the present matter there are divergent views of the trial Court and the First Appellate Court, on a commissioner being appointed, a report has been filed, which indicates that insofar as the land in R.S. No.50 is concerned, there is no other access to it than the road flowing through 2+3/A/2, 5+6/A and 4A/1. Though the claim of Sri.Shriharsh Nelopant, the counsel for the defendant is that there are other roads which provide access to R.S. No.50, there is nothing which has been placed on record to indicate that factor. The report of the ADLR indicates otherwise. In terms of said report there appears to be only one access to R.S. No.50 through 2+3/A/2, then on to No. 5+6/A and thereafter on to 4A/1. As -9- NC: 2025:KHC-D:3747 WP No. 101225 of 2025 per the survey report it is only a small portion which comes in No. 5+6/A which is stated to have been recently formed.
10. Having come to a conclusion that apart from this road there is no other road leading up to R.S. No.50 and R.S.No.50 was sold by the father of the defendant and the rest of the property in No. 5+6/A having been retained by the family has now fallen to the share of the son.
11. A perusal of the sale deed indicates that it is not only the property covered in the sale deed which has been sold but also the right to access thereof. The only right to access that it could refer to is the right to access from the property of the family members of the vendor and cannot be relatable to properties which do not belong to the family. It is in this background that the First Appellate Court was of the opinion that the right of way cannot be taken away. If at all the said right is impinged, then grave loss,
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NC: 2025:KHC-D:3747 WP No. 101225 of 2025 harm and injury would be caused to the plaintiff and as such, allowed the application for interlocutory injunction.
12. As afore indicated and a perusal of the survey sketch produced by ADLR there being clear directions issued to the ADLR to report the actual existence of the roads in the property, the ADLR has only shown a road to the south of survey No.50 going up to the western side of survey No.2+3/A/2 into the northern portion of survey No. No. 5+6/A and the northern portion of survey No.4/A/1. Apart from this road there is no other road which has been shown by the ADLR reaching up to R.S. No.50. The observation made by the First Appellate Court was also in terms of the sketch which had been produced. On that basis the First Appellate Court has taken into consideration that there is no clear dispute as regards the access of the plaintiffs to the said properties.
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13. In that view of the matter, I am of the considered opinion that if the relief of injunction sought for by the plaintiff is not granted, grave loss, hardship and prejudice would be caused to the plaintiff since the survey sketch does not indicate any other road providing access to R.S. No.50. If there are any other roads not shown in the survey map, it is for the petitioner to establish the same by cogent evidence. The plaintiff though having discharged the primary obligation of claiming that there is a road situate as aforesaid, the existence of other roads would have to be established by the defendants if the defendants were to seek for denial of the relief of injunction in favor of the plaintiff. There being no particular dispute as regards the road flowing through survey number 2+3/A/2, as also survey No. 4/A/1, the only dispute is regards a small portion between survey number 4/A/1 and 2+3/A/2 while the same is going through No.5+6/A which is the property of the son of the defendant.
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14. Whether the road in survey No.5+6/A has been newly formed or whether the same is only a repair work which has been committed, I am of the considered opinion would have to be established during the course of trial and cannot be decided now. Balance of convenience and irreparable injury would be caused to the plaintiff if the respondents are restrained by an order directing them not to interfere with the usage of the road since without such road being used by the petitioners, there would be no access by way of road to R.S. No.50. Of course, these are prima facie findings for the purpose of consideration of the application filed under Order 39 Rule 1 and 2. The aspect of whether there exists any other road or not and whether the plaintiff has been making use of the said road or not would have to be determined during the course of trial.
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15. In that view of the matter, being of the opinion that if the road claimed by the plaintiff were not available to the plaintiff and the plaintiff who is the landlocked will have no access to his property. It is in that background also that the trial Court has imposed certain conditions which would enure to the benefit of the defendant in the event of the plaintiff failing. In that view of the matter, I pass the following order:
ORDER i. The petition is dismissed.
ii. All questions are left open to be decided by the trial Court.
iii. The observations made herein are only for the purpose of consideration of a challenge made to an order passed by the Miscellaneous Appeal Court and for no other purpose.
Sd/-
(SURAJ GOVINDARAJ) JUDGE LN/-. List No.: 1 Sl No.: 118