Karnataka High Court
Sri Beerappa S/O Vithal Hegade vs Sri Lagamanna S/O Venkappa Pujeri on 12 July, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2023:KHC-D:7120
WP No. 104019 of 2023
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 104019 OF 2023 (GM-CPC)
BETWEEN:
1. SRI BEERAPPA S/O. VITHAL HEGADE,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE,
2. SRI YALLAPPA S/O. VITHAL HEGADE,
AGED ABOUT 35 YEARS,
OCC: AGRICULTURE,
3. SRI NAGAPPA S/O. VITHAL HEGADE,
AGED ABOUT 33 YEARS,
VIJAYALAKSHMI
OCC: AGRICULTURE,
M KANKUPPI
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI
4. SMT. MAYAWWA W/O. VITHAL HEGADE,
Location: High
Court of Karnataka,
Dharwad
AGED ABOUT 63 YEARS,
OCC: HOUSEHOLD WORK,
5. SMT. SHOBHA W/O. MAHAVEER HEGADE,
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE,
ALL ARE R/O. CHINCHALI,
TQ: RAIBAG, DIST: BELAGAVI.
...PETITIONERS
(BY SRI RAMACHANDRA A. MALI, ADVOCATE)
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NC: 2023:KHC-D:7120
WP No. 104019 of 2023
AND:
1. SRI LAGAMANNA S/O. VENKAPPA PUJERI,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE,
2. SRI MAHAVEER S/O. VENKAPPA PUJERI,
AGED ABOUT 41 YEARS,
OCC: AGRICULTURE,
3. SRI RAVINDRA S/O. VENKAPPA PUJERI,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE,
R/O: CHINCHALI,
TQ: RAIBAG, DIST: BELAGAVI-591317.
...RESPONDENTS
(BY SRI CHETAN MUNNOLI, ADVOCATE FOR C/RESPONDENT
NOS.1 TO 3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN O.S. NO. 846/2019 ON THE FILE OF ADDITIONAL
CIVIL JUDGE, RAIBAG AND ISSUE A WRIT OF CERTIORARI OR
ANY OTHER WRIT OR ORDER IN THE LIKE NATURE QUASHING
THE ORDER DATED 2-11-2022 MADE ON I.A.NO.I IN
O.S.NO.846/2019 BY THE ADDITIONAL CIVIL JUDGE RAIBAG
PRODUCED AT ANNEXURE-C AND ALSO THE ORDER DATED
7-3-2023 MADE IN M.A. NO. 37/2022 PASSED BY THE SENIOR
CIVIL JUDGE AND JMFC RAIBAG PRODUCED AT ANNEXURE-D,
AS THE SAME BEING ILLEGAL AND NOT SUSTAINABLE IN LAW
AND CONSEQUENTLY DISMISS I.A.NO.I IN O.S.NO.846/2019
ON THE FILE OF ADDITIONAL CIVIL JUDGE RAIBAG.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the defendant Nos.1 to 5 in O.S.No.846/2019 being aggrieved by the impugned order -3- NC: 2023:KHC-D:7120 WP No. 104019 of 2023 passed on I.A.No.I by the Additional Civil Judge, Raibag (for short, 'the trial Court') dated 02.11.2022.
2. Parties to the proceedings shall be referred to as per their ranks before the Trial Court for the sake of convenience.
3. Plaintiffs had filed the suit for permanent injunction against the defendants restraining the defendants from obstructing the plaintiffs right to pass over the cart road i.e., 'ABCD' 10 feet width cart road situated towards eastern and southern boundary in the lands of defendants bearing Sy.No.490/4 and R.S.No.490/4B/1 of Chinchali village and for other consequential reliefs. During pendency of the suit an application came to be filed by the plaintiffs to grant temporary injunction under Order XXXIX rule 1 and 2 of CPC to the use of the said cart road for access to the plaintiffs property in accordance to the sale deed which provides said access to their land to the main road. This application under Order XXXIX rule 1 and 2 of CPC came -4- NC: 2023:KHC-D:7120 WP No. 104019 of 2023 to be allowed in the suit proceedings vide order dated 02.11.2022.
4. Aggrieved by the said order of temporary injunction, the defendants approached the first appellate Court questioning the same in M.A.No.37/2022, which came to be rejected and the order of the Trial Court granting injunction came to be confirmed by the appellate Court. This order of the appellate Court as well as the Trial Court is challenged by the defendants before this court.
5. It is the contention of learned counsel for defendants that the order passed by the Trial Court as well as the appellate Court is arbitrary, illegal and perverse and same cannot be sustained in the eye of law. Hence, requires to be set aside. It is the contention of learned counsel for the defendants that even according to the original sale deed executed in the year 1994 and thereafter in the year 2002, there exists a cart road on the extreme extern side of the property belonging to the defendants, which is permitted to be used by the vendors -5- NC: 2023:KHC-D:7120 WP No. 104019 of 2023 of the plaintiffs and the plaintiffs for use of the road and they did not claim any right over the said road. He further contends that during the period of the vendor of the plaintiffs and father of plaintiffs there was no objection raised with regard to non use of the road and after the death of the plaintiffs' father, the plaintiffs have come up before this Court by filing the suit trying to create a new road in the property belonging to the defendants, which is not permissible in law or on the facts of the case in the guise of seeking relief of access to use the cart road.
6. Learned counsel further contends that if at all the plaintiffs have used the cart road on the extreme eastern side of the property, they will have to use the road on the extreme eastern side of the property pursuant to the sale made by the defendants to one Satyappa Rama Hasare family a portion of which has been sold to the purchaser on 27.04.1994. He further contends that this aspects have been ignored by the trial Court and now not taken into consideration while deciding the application for -6- NC: 2023:KHC-D:7120 WP No. 104019 of 2023 injunction and he further contends that the interim relief sought in the suit is as good as the main relief. Therefore, such blanket order of permission to use the cart road could not have been allowed and permitted by the trial Court as well as the first appellate Court. On these grounds, he seeks to allow his petition and set aside the orders passed by the trial Court as well as first appellate Court.
7. Per contra, learned counsel representing the plaintiffs vehemently contends that the impugned order passed by the trial Court as well as the First Appellate Court is legally justifiable, does not call for interference as there is no illegality or perversity in the said order. Learned counsel further contends that even according to the defendants admittedly there exists a cart road on the northern side and the eastern side of the property belonging to the defendants while the sale deed was executed at the earliest point of time in 1984 and thereafter subsequently in the year 2002 when the sale deed was executed in favour of the plaintiffs. Therefore, -7- NC: 2023:KHC-D:7120 WP No. 104019 of 2023 from the year 1984, vendors of the plaintiff as well as the plaintiff's father were using the cart road to approach their property and to go to the main road through the property belonging to the defendants on the eastern side. This is evident in the sale deed produced by plaintiffs themselves, which is not disputed by the defendants.
8. It is also contended by the learned counsel for respondents-plaintiffs that the in the written statement filed by the defendants they have admitted the existence of cart road though they have disputed the measurement of the cart road from 10 feet to 6 feet. The fact remains that there is existence of cart road on the extreme eastern side of the property of the defendants which was given to be used as per the covenant of the sale deed to the purchasers from the plaintiffs, vendors of the plaintiffs and the plaintiffs. This being the case, whether the cart road is measuring 10 feet or 6 feet is to be decided by the trial Court in the process of trial by way of evidence of both the parties. With regard to grant of temporary injunction for -8- NC: 2023:KHC-D:7120 WP No. 104019 of 2023 the use of the cart road to the ingress and egress to their properties, and to the road, the trial Court has considered all the arguments of both the plaintiffs as well as the defendants and has accordingly allowed the application on the basis of admission and the materials placed on record.
9. While considering the application for grant of temporary injunction, three essential ingredients to be considered are i) prima facie case, ii) balance of convenience and iii) irreparable hardship that would be caused to the parties. These three aspects have to be elicited and considered by the trial Court as well as the First Appellate Court on the basis of the materials i.e., sale deed and the admission made by defendants, there is existence of cart road on the eastern side of the property belonging to the defendants. Therefore, it is necessary requirement of the plaintiffs to use the cart road till the disposal of the main suit considering the fact that the prima facie case is made out by the plaintiffs and existence of cart road and the balance of convenience lies -9- NC: 2023:KHC-D:7120 WP No. 104019 of 2023 in favour of the plaintiffs and hardship would be caused more to the plaintiffs if an order is not passed, the trial Court as well as the First Appellate Court have allowed the application and confirmed the order of temporary injunction.
10. Having heard both the learned counsels, I do not find any illegality perversity or arbitrariness in the order passed by the trial Court as well as the First Appellate Court in allowing the application filed under Order 39 Rule 1 and 2 of CPC and the First Appellate Court confirming the same, this is merely on the basis of prima facie case made out by the plaintiffs. However liberty is reserved to the defendants to establish existence of a cart road on the extreme right side of the property after selling a portion of the same to the purchaser in 1994 to be used by the plaintiffs. This will have to be established by the defendants in the course of trial by stepping into the witness box and placing the materials on record. For the present I do not find any need to interfere with the well
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NC: 2023:KHC-D:7120 WP No. 104019 of 2023 reasoned order of the trial Court as well as the First Appellate Court. Accordingly I proceed to pass the following:
ORDER The writ petition is dismissed.
Sd/-
JUDGE CKK,MRK List No.: 1 Sl No.: 17