Karnataka High Court
Sri N S Venkatesh Babu vs Sri T Ravi Kumar on 17 July, 2025
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NC: 2025:KHC:26679
MFA No. 3115 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 3115 OF 2025 (CPC)
BETWEEN:
1. SRI. N.S. VENKATESH BABU
S/O N. NARASIMHA MURTHY
AGED ABOUT 59 YEARS
NO.404, 8TH CROSS, SAMPIGE ROAD
MALLESWARAM, BENGALURU - 560003
2. SMT. N.V. ANURADHA
W/O SRI. N.S. VENKATESH BABU
AGED ABOUT 48 YEARS
NO.404, 8TH CROSS, SAMPIGE ROAD
MALLESWARAM, BENGALURU - 560003
...APPELLANTS
(BY SRI. KRISHNAMURTHY M.R, ADVOCATE)
AND:
Digitally signed by 1. SRI. T. RAVI KUMAR
ANJALI M S/O LATE B.T. THIMMAIAH
Location: High
Court of Karnataka AGED ABOUT 54 YEARS
NO.13/1, 7TH CROSS, 7TH MAIN
MALLESWARM, BENGALURU-560 003
2. SMT T.PADMAVATHI,
D/O LATE B.T. THIMMAIAH
AGED ABOUT 58 YEARS
NO.13/1, 7TH CROSS, 7TH MAIN
MALLESWARM, BENGALURU-560 003
...RESPONDENTS
(BY SRI. M.K. VENKATARAMANA, ADVOCATE FOR C/R1 & R2)
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NC: 2025:KHC:26679
MFA No. 3115 of 2025
HC-KAR
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 04.02.2025 PASSED ON I.A.NO.I IN OS.NO.
7803/2024 ON THE FILE OF THE VIII ADDITIIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU (CCH-15), ALLOWING THE
I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH
SECTION 151 OF 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 Misc. First appeal is filed by the appellant- defendant under Order 43 Rule 1(r) of CPC, 1908, challenging the order dated 04.02.2025 passed by the learned VIII Addl.Sr.Civil and Sessions Judge, Bengaluru in OS No.7803/2024 whereby, the learned trial Court allowed the application filed by the respondent-plaintiff under Order 39 Rules 1 and 2 of CPC and passed an order restraining the appellant-defendant from interfering with the suit schedule property during the pendency of the suit.
2. Being aggrieved by the order of the said injunction, now the present appeal is preferred by the -3- NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR defendant seeking appropriate relief and protection of possession pending adjudication of title and easementary rights.
3. I have heard the arguments of learned counsel for appellant and respondents and perused the appeal papers, the impugned order passed by the trial Court and all the documents relied upon by both the parties. On perusal of the materials so placed, it is manifest that the primary dispute in this suit relates to the suit schedule 'A' Property bearing Site No.13/1, PID No.7-6-13/1 measuring East-West 45 ft. and North-South 28.6 ft. totally measuring 1282 sq. ft. situated at 7th Main, 7th Cross, Malleshwaram, Bengaluru.
4. 4. It is the case of the plaintiff that one Ramachandraiah was the owner of the schedule 'A' property and after his demise his wife and his five children got effected partition of the property by way of registered partition deed dated 13.12.1976. According to the said -4- NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR partition, Schedule 'A' property described in the schedule fell to the share of one C.R.Pashupathi the S/o.Ramachandraiah. He sold the Schedule 'A' property to the mother of the plaintiffs by name B.T.Jayamma under Registered sale deed dated 12.04.1979. Accordingly, the khatha was changed in the name of Jayamma. It is the case of the plaintiff that, it is their mother who put up the construction therein and she was in possession and enjoyment of the Schedule 'A' property till her last breath. On her demise, plaintiffs being the only legal heirs succeeded to the suit schedule 'A' property and accordingly, their name came to be changed and effected in the concerned revenue records. It is they, who are in possession and enjoyment of 'A' Schedule property.
5. It is the specific allegation of the plaintiff that, defendant's illegally and unlawfully trying to block the suit B-schedule passage measuring 5 ft. to reach the `A' schedule property even they are trying to obstruct use of `B' schedule property to make use of the same to reach -5- NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR Suit `A' Scheudle property. Therefore, by filing the suit seeking declaratory relief, as well as injunctive relief, they have prayed for temporary injunction.
6. The defendants refuted all the assertions made in the plaint as well as application and specifically contended that, vendor of the plaintiffs' mother is not conferred with any right in the Schedule `B' property i.e. for egress and ingress to `A' schedule property. It is their defence that, mother of plaintiffs never enjoyed the suit schedule `B' passage, therefore, the question of confirming any right on passage of 5 ft. in favour of their mother under the sale deed dated 12.04.1979 does not arise at all. It is contended that either the mother of the plaintiffs or these plaintiffs would derive any right of passage in respect of `B' Schedule property. It is contended that recently when the defendant visited `A' property and enquired, they came to know that, recently the plaintiffs have closed the door existing in the suit schedule property A property to the conservancy lane and -6- NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR fixed the window and the passage at the North-West corner of `A' schedule property being closed with wall which actually has access to the conservancy from the suit schedule property `A' property with a mala fide intention the plaintiffs have filed the suit and have sought temporary injunction. It is contended that question of plaintiff using `B' schedule passage to reach `A' schedule property does not arise.
7. The appellant specifically pleaded and demonstrated that, over time, the plaintiffs have developed an easement of necessity and implied easement to ingress and egress as the property in their occupation is land-locked and only access is B-schedule property so shown in the plaint. It is submitted that, this right of way, having been enjoyed peacefully and continuously, prima facie attracts principles stated under the Indian Easements Act, 1882 particularly Sections 13 and 15, which deal with Easements of necessity and easements by prescription. His submission is that, the pleadings and supporting materials -7- NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR in this regard cannot be brushed aside at the interim stage, especially when the appellant has been using the B-Schedule property for ingress and egress to reach `A' Schedule property and there is a threat for closure of the same by the defendants and also interference into the enjoyment of `B' Schedule property by them, the plaintiff has sought the temporary injunction.
8. Having heard the arguments of both the side and having perused the records and having regard to the fact that appellant has sought dismissal of the application filed by the plaintiff praying to grant injunction order, it is settled principle of law that an injunction cannot be granted to dispossess a person in settled position even if title is disputed unless it is shown that such possession is unlawfully rescinded or forcibly obtained.
9. On perusal of the materials on record, in the present case, the plaintiff's possession is based upon the partition deed dated 13.12.1976 under which the vendor -8- NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR of the plaintiff's mother by name C.R.Pashupathi sold `A' - Schedule property to Smt. B.T.Jayamma the mother of the plaintiff under registered sale deed dated 12.04.1979. Accordingly, khatha changed in her name and it was she who had put up the construction and was in possession of the said building and enjoyment of the same till her death. According to the plaintiffs, after demise of her mother, they succeeded to the `A' Schedule property and their name is appearing in the concerned municipal records. The dispute lingers between plaintiffs and defendants with regard to user of 5 ft. passage alleged to have been used by the plaintiffs and their predecessors to reach `A' Schedule property. The said 5 ft. passage is described as `B' Schedule. It is their grievance that, this `B' Schedule property is the only access to them for ingress and egress to the schedule `A' property as the defendants are trying to interfere with the usage of the same, so also trying to obstruct user of the said property, they have filed a suit seeking relief of declaration to declare that `B' Schedule -9- NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR property is the only connectivity from the 7th cross road to reach `A' Schedule property. Except denial, in the objections, there is no material placed on record by the defendants to show that `B' Schedule property is not being used by the plaintiffs. In the course of the argument, the learned counsel for the appellants placed the rough sketch showing the topographical features of `A' Schedule property and `B' property and also properties of defendants and others. This rough sketch do shows that towards the south-east corner of `A' Schedule property, there exists a lane described as B-Schedule property towards the eastern side of property of one Sundara Murthy. He also produced the plan proposed for a residential building submitted by mother of plaintiff to the BBMP to show that a residential house is constructed.
10. The learned trial Court, while passing the impugned order, relied upon the description of Schedule `A' property. It also has noticed that in the sale deed dated 12.04.1979, there is a specific recital that, common
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NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR 5 ft. passage is left towards north-south in the eastern side of the `A' Schedule Property which is now described as `B' Schedule passage.
11. The learned counsel for the appellants- defendants specifically contend that, the so called partition deed dated 13.02.1976 effected in between vendor of mother of plaintiffs and his children, there is no such recital therefore, the recital in the sale deed dated 12.04.1979 does not confer right to claim right in `B' Schedule alleged passage. Now on the face of it, on reading the said sale deed in favour of B.T.Jayamma, it shows about existence of the said passage. As rightly observed by the trial Court at the interlocutory stage, the Court cannot record a conclusive finding whether the plaintiffs have right over the suit schedule property or otherwise. Though it is contended that there is no specific pleading with regard to the claiming of easementary right but, on going through the plaint averments, it shows that plaintiffs have pleaded about using of `B' Schedule
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NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR property since time immemorial and such a pleading is backed by the recitals of sale deed dated 12.04.1979. It is true that, to claim certain easementary rights, there must be proper pleadings and proof. The burden to prove the fact of using the `B' Schedule property since time immemorial is definitely on the plaintiffs. Prima facie, plantiffs are relying upon the sale deed dated 12.04.1979 to assert their right in `B' Schedule property. As rightly observed by the trial Court, the defendants have not disputed the said sale deed.
12. There is no pleading as such pleaded by the defendants that except `B' Schedule passage there is other alternative passage available for the plaintiffs for ingress and egress to reach `A' Schedule property. Therefore, from the pleadings of both the parties, as the civil cases are decided based upon the principles of preponderance of evidence and probabilities, at this stage, they are able to prove that there exist a passage described
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NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR as `B' Schedule property of ingress and egress to reach `A' Schedule property from 7th Cross Road.
13. Considering all these aspects, the learned trial Court has passed the impugned order to maintain status- quo with regard to the usage of the `B' Schedule Property and restrained the defendants from obstructing the plaintiffs from using suit `B' Schedule property for their ingress and egress to reach the `A' Schedule property during the pendency of the suit.
14. Thus, the plaintiffs have made out a prima facie in their favour. The balance of convenience also tilts in favour of the plaintiffs that right from the date of purchase of Schedule `A' property, they are making use of the `B' Schedule property to reach `A' Schedule property from 7th Cross road. If there is sudden halt of using the same, it is the plaintiff who would be put to greater hardship as there is no other alternative path way or road to reach the `A' Schedule property.
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NC: 2025:KHC:26679 MFA No. 3115 of 2025 HC-KAR
15. In light of the discussion supra, I do not find any factual or legal error committed by the trial Court in passing the impugned order. The trial Court has exercised its discretion in accordance with law and granted the temporary injunction. Resultantly, I pass the following:
ORDER
(i) Appeal is dismissed.
(ii) The order dated 04.02.2025 passed by the learned VIII Addl.Sr.Civil and Sessions Judge, Bengaluru in OS No.7803/2024 is confirmed.
(iii) However, the trial Court is requested to dispose of the suit expeditiously with all its promptitude.
Costs made easy.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 1 Sl No.: 32