Karnataka High Court
Nigar Sultan W/O Mohammad Javed ... vs Smt. Rachavva W/O Basavaraj Naik on 18 August, 2023
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NC: 2023:KHC-D:9091
WP No. 105155 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 105155 OF 2021 (GM-CPC)
BETWEEN:
1. NIGAR SULTAN
W/O. MOHAMMAD JAVED BANKAPUR,
AGE: 42 YEARS, OCC: HOUSEWIFE
R/O: GANESH PETH,
AZAD ROAD, HUBBALLI-580 020.
2. KURSHEED AHMED
S/O. MOHAMMAD GOUSE BANKAPUR,
AGE: 54 YEARS, OCC: BUSINESS,
R/O: GANESH PETH,
AZAD ROAD, HUBBALLI-580 020.
3. ABDUL HAMMED
S/O. MOHAMMED GOUSE BANKAPUR,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: GANESH PETH,
AZAD ROAD, HUBBALLI-580 020.
Digitally
signed by
YASHAVANT
YASHAVANT
NARAYANKAR
NARAYANKAR Location:
4. MOHAMMED AYUB
DHARWAD
Date:
2023.08.21
S/O. MOHAMMAD GOUSE BANKAPUR,
16:12:37 -0700
AGE: 52 YEARS, OCC: BUSINESS,
R/O: GANESH PETH,
AZAD ROAD, HUBBALLI-580 020.
...PETITIONERS
(BY SRI S.S. BETURMATH, ADV. FOR SRI K.L. PATIL, ADVOCATE)
AND:
1. SMT. RACHAVVA W/O. BASAVARAJ NAIK,
AGE: 51 YEARS, OCC: HOUSEWIFE,
R/O: GANESH PETH,
AZAD ROAD, HUBBALLI-580 020.
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NC: 2023:KHC-D:9091
WP No. 105155 of 2021
2. SMT. PREMA W/O. ARJUN MUGAD,
AGE: 46 YEARS, OCC: HOUSEWIFE,
R/O: GANESH PETH,
AZAD ROAD, HUBBALLI-580 020.
3. SMT. SONAVATI
W/O. MUTTAPPA KATAGI @ HATTIKERI,
AGE: 42 YEARS, OCC: HOUSEWIFE,
R/O: GANESH PETH,
AZAD ROAD, HUBBALLI-580 020.
4. MALESHAPPA S/O. NINAGAPPA KURIYAVAR,
AGE: 44 YEARS, OCC: PVT. SERVICE,
R/O: GANESH PETH,
AZAD ROAD, HUBBALLI-580 020.
5. DEVENDRAPPA S/O. NINGAPPA KURIYAVAR,
AGE: 42 YEARS, OCC: PVT. SERVICE,
R/O: GANESH PETH,
AZAD ROAD, HUBBALLI-580 020.
...RESPONDENTS
(BY SRI RAJASHEKAR B. HALLI, ADVOCATE FOR R1 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ORDER OR DIRECTION TO QUASH THE IMPUGNED
ORDER DATED 01/10/2021 IN MISC. APPEAL NO.16/2020 PASSED
BY 1ST ADDITIONAL SENIOR CIVIL JUDGE AND JMFC HUBBALLI, VIDE
ANNEXURE-K AND CONSEQUENTLY DISMISS THE IA NO.2 FILED
UNDER ORDER 39 RULE 1 AND 2 CPC IN O.S.NO.03/2019 PENDING
ON THE FILE OF 1ST ADDITIONAL CIVIL JUDGE AND JMFC HUBBALLI
FILED BY THE RESPONDENTS HEREIN AND SUCH OTHER RELIEFS..
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:9091
WP No. 105155 of 2021
ORDER
The captioned writ petition is filed by the defendants feeling aggrieved by the order passed by the appellate court in M.A.No.16/2020 c/w 17/2020 wherein the appellate court has reversed the common order passed by the trial court and application filed by the plaintiffs in I.A.No.II under Order 39 Rule 1 and 2 of CPC is allowed and present petitioners/defendants are restrained from putting doors and windows on EF wall and consequently, the application filed by the petitioners/defendants in I.A.No.IV seeking injunction against the plaintiffs from interfering with their right to use the common passage is rejected.
2. Facts leading to the case are that, respondents/plaintiffs instituted a suit for declaration and injunction against the petitioners/defendants not to fix the doors and windows on EF wall. Plaintiffs filed an application in I.A.No.II to restrain the defendants from putting up doors and windows on EF wall. On examination -4- NC: 2023:KHC-D:9091 WP No. 105155 of 2021 of the divergent orders, this court would find that though appellate court has rightly taken cognizance of title documents of the parties while examining the existence of common passage between the properties of the plaintiffs and defendants, however, I am of the view that appellate court erred in rejecting the application filed by the present petitioners in I.A.No.IV. The appellate court referring to prima facie material has concurred with the finding of the trial court in regard to existence of passage. If appellate court held that there is common passage between plaintiffs property and defendants property, then I am of the view that appellate court erred in reversing the order of the trial court passed on I.A.No.IV where defendants have also sought temporary injunction to restrain the plaintiffs not to interfere with their right to use the common passage.
3. Though I am not inclined to interfere with the order passed by the appellate court on I.A.No.II, however this court would find that reasons assigned by the -5- NC: 2023:KHC-D:9091 WP No. 105155 of 2021 appellate court while rejecting I.A.No.IV suffers from perversity and therefore, would warrant interference at the hands of this court. If the appellate court referring to the title documents has come to the conclusion that there is common passage, defendants are also entitled to use the common passage pending consideration of the suit.
4. For the reasons stated supra, the writ petition is allowed.
i) The order passed by the appellate court on I.A.No.II filed by the plaintiffs under Order 39 Rule 1 and 2 of CPC is hereby confirmed.
ii) The order passed by the appellate court on I.A.No.IV filed by the defendants seeking injunction against the plaintiffs not to interfere with their right to use common passage is hereby set aside and the order of the trial court passed on I.A.No.IV is restored.
Sd/-
JUDGE MBS List No.: 1 Sl No.: 16