Karnataka High Court
Vinayaka Public School vs Sri Reddappa on 19 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.54085 OF 2017 (GM-CPC)
BETWEEN:
1. Vinayaka Public School
Formed by
K.H. Education Society (Regd.)
Having its office at: D-21
C/o Motappa Reddy Building
Hebbagudi, Anekal Taluk
Bengaluru 560 100
Rep by Secretary Sri.Nagaraj
2. Smt.Byamma
W/o late Krishna Reddy
Aged about 51 years
R/at No.E/690
Balajinagar, Hebbagudi
Anekal Taluk, Electronic City Post
Bengaluru - 560 100.
... PETITIONERS
(By Sri.Sangamesh R.B., Advocate)
AND:
1. Sri.Reddappa
S/o late Venkataramanappa
Aged about 71 years
2
R/at Vinayakanagara
Hebbagudi, Anekal Taluk
Bommasandra Post
Bengaluru - 560 099.
2. Srinivas Reddy
S/o Reddappa
Aged about 46 years
R/at Vinayakanagara
Hebbagudi, Anekal Taluk
Bommasandra Post
Bengaluru - 560 099.
3. Gopal Reddy
S/o Reddappa
Aged about 44 years
R/at Vinayakanagara
Hebbagudi, Anekal Taluk
Bommasandra Post
Bengaluru - 560 099
...RESPONDENTS
(By Sri.H.P.Leeladhar, Advocate for R1-3)
This Writ Petition is filed under Article 227 of the
Constitution of India praying to quash the order dated
21.11.2017 passed in M.A.21/2017 on the file of Sr. Civil
Judge and JMFC, Anekal at Annex-A and etc
This Writ Petition coming on for Preliminary Hearing,
this day, the Court made the following:-
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ORDER
The plaintiffs who are unsuccessful before the Appellate Court filed the present Writ Petition to quash the order dated 21.11.2017 made in M.A.No.21/2017 on the file of Senior Civil Judge & JMFC, Anekal (Annexure-A).
2. The present petitioners who are the plaintiffs in O.S.No.325/2016 filed for declaration to declare that the plaintiffs have a right of easement of necessity to use the road formed in Sy.No.85/1B belonging to the defendants in which the Town Municipality has also put a concrete road to reach the schedule land belonging to the plaintiff No.2, where the plaintiff No.1 is running a school and for permanent injunction restraining the defendants, anybody claiming under them, from blocking the access road so as to reach the land measuring 25 guntas in Sy.No.25/1A, belonging to the 2nd plaintiff wherein the 1st plaintiff has established school in the name of Vinayaka Public School contending that, the 4 plaintiff No.2 is the absolute owner of the land bearing Sy.No.85/1A measuring 25 guntas situated at Hebbagudi Village, Athibele Hobli, Bommasandra Post, Anekal Taluk, Bengaluru and the same given by the plaintiff No.2 to the plaintiff No.1 under registered lease agreement dated 25.02.2016 to run the school by the plaintiff No.1.
3. It is further contended that there was a partition within the family of late Krishna Reddy, husband of plaintiff No.2 under a registered partition deed dated 26.6.1967. Under the said partition, 1st defendant herein was allotted 33 guntas in Sy.No.85 and the remaining land was with the possession of the other family members and husband of 2nd plaintiff was a minor at the time of partition. Hence, out of the total land measuring 1 acre 18 guntas in Sy.No.85, an extent measuring 33 guntas was allotted to the share of Reddappa i.e., the 1st defendant. It is relevant to mention that in so far as remaining extent of land measuring 25 guntas was concerned, there was no approach road available 5 to reach the said land, except approach road which was passing through the road left by the 1st defendant herein in a portion of land measuring 33 guntas allotted to him under the partition. The road was falling within Sy.No.33 which was used by everybody to reach the land measuring 25 guntas retained by the other family members in the partition. Thereafter, the remaining land measuring 25 guntas was retained by late Sri.Krishna Reddy, the husband of plaintiff No.2.
4. It is further contended that Sy.No.85/1A has now come within the Anekal Municipality and therefore, road which was used to reach the land measuring 25 guntas belonging to the plaintiff was put with concrete and the same is used for several decades by the plaintiff No.2 and others. It is further contended that after establishment of the school in the year 2015, the only approach road available to the school is the road formed by the Town Municipality in a portion of land measuring 33 guntas, which was allotted to defendant 6 No.1 under the partition deed dated 26.6.1967. Hence, the school is using the said road to have ingress and egress for the children and parents. Hence, there is a right of easement of necessity created in favour of the plaintiffs herein in respect of the road formed by the Municipality by making the same as concrete road. It is relevant to state that all the sewage lines to the school are also passing under the said road. Hence, with the knowledge of the defendants, the said road was formed and used by general public for many years, etc. Therefore, he filed suit for the relief sought for.
5. The defendants Nos.1 to 3 filed written statement and contended that, at the outset, the suit filed by the plaintiffs is not maintainable and liable to be dismissed for suppression of real and material facts and denied the plaint averments by contending that there is no public road existing in Sy.No.85/1B as claimed by the plaintiffs in the plaint pleadings or in the accompanying affidavit. As such question of easement of necessity to use the alleged road does not arise 7 at all. It is further contended that neither the Town Municipal Council, Hebbagodi, Anekal Taluk, nor the City Municipality, Hebbagodi has formed any concrete road in Sy.No.85/1B and no documents are produced by the plaintiffs to show that concrete road is formed in Sy.No.85/1B. They further contended that the averments made in para No.4 of the plaint that the plaintiff No.2 is the absolute owner of Sy.No.85/1A measuring 25 guntas, which is given to plaintiff No.2 to run a school are all absolutely false and incorrect. They further contended that there is no concrete road existing in Sy.No.85/1B formed by Town Municipality Hebbagodi nor the City Municipality and the plaintiffs have not produced any document in that regard.
6. The defendants further contended that the plaintiffs have given false schedule in the plaint and as well as in the IA and also have given false boundaries to the suit schedule property. On perusal of the schedule boundaries, it shows that the remaining property of plaintiff No.2 on the northern 8 side and on the southern side, 'A' schedule property bearing Sy.No.85/1A belonging to Govindareddy and there is a public road on the southern side of Govindareddy's property. By suppressing the real and material facts, the plaintiffs have filed the present suit which is not at all maintainable. It is further contended that on a careful perusal of the Lease Agreement dated 25.2.2016 produced by the plaintiffs vide Annexure-D clearly mentions that the property bearing Sy.No.85/1A measuring 25 guntas and Sy.No.86/1 measuring 38 guntas are abutting each other and they belong to Smt. Bayamma-2nd plaintiff and Sri H.V.Govindareddy and they have let out the above said properties to the school called "Vinayaka Public School" represented by Sri Nagaraju C.H. who is the first plaintiff. The lease is for a period of 30 years i.e., from 10.1.2015 to 10.1.2045.
7. It is further contended that on careful perusal of the schedule of the Lease Agreement supra there is a clear mention that "North by road". When there is already a road 9 existing in the school property as per the Lease Agreement, then the question of seeking easementary right over the property bearing sy.No.85/1B, belonging to the defendants does not arise at all.
8. The defendants further contended that the first defendant was having several properties under registered partition deed, he partitioned and allotted shares to himself and to his two sons i.e., defendants No.2 and 3 and one daughter by name Janakamma under partition deed dated 1.8.2012. Subsequently phodi has been made in the said partition and 2nd defendant was allotted 17 guntas of land out of 36 guntas in Sy.No.85/1B which is 'B' schedule property and 'A' schedule property was retained by defendant No.1. Defendant No.3 was allotted 0.16 guntas out of 36 guntas in 'C' schedule property and remaining 03 guntas was allotted to one Smt. Janakamma, who is the daughter of defendant No.1. The shares allotted to defendant No.2 is shown as EFGH and to defendant No. 3 is shown as ABCD and to Smt. 10 Janakamma is shown as JKLM in the rough sketch, which is annexed to the written statement. The black mark shown in the sketch is the family of the defendants and Janakamma have made a road for their individual access as ingress and egress for which Panchayat Muchalike dated 2.1.2014 was entered between the said parties, wherein defendant No.1 and Janakamma purchased land measuring 70 ft. East-West and 12 ft. North-South, in all 840 sq. ft. for the purpose of road by paying Rs.5,00,000/- to defendant No.2. Thereafter khata was changed in their respective shares and defendant No.2 has formed a cement concrete road at his own cost for private ingress and egress. As such, land measuring 0-36 guntas in Sy.No.85/1B is purely a private land, i.e., absolutely belongs to defendants No.2 and 3. The alleged road is not a public place nor a public road. Hence, the plaintiffs cannot seek the Easementary right over the property of defendants No.2 and 3 and prayed for dismissal of the suit.
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9. During the pendency of the proceedings, plaintiffs filed IA No.1 under Order 39 Rule 1 and 2 of CPC for temporary injunction restraining the defendants from blocking the access road, so as to reach the schedule property by the plaintiffs reiterating the plaint averments. Same was opposed by the defendants No.2 and 3 by filing objections.
10. The trial court after considering the application and objections, by the order dated 23.9.2017 allowed the application and granted temporary injunction restraining the defendants from blocking the road, which was used by the plaintiffs to ingress and egress to the suit schedule property bearing sy.No.85/1A measuring 25 guntas till disposal of the suit.
11. Being aggrieved by the said order passed by the trial court, the defendants filed appeal in M.A.No.21/2007 before Senior Civil Judge & JMFC., Anekal, who after hearing both parties, by the impugned order dated 21.11.2017 allowed the appeal and set aside the order passed by the 12 trial court and dismissed the application filed by the plaintiffs for temporary injunction. Hence, the present writ petition is filed.
12. When the matter came up for preliminary hearing before this Court on 6/12/2017, after arguing the matter for some time learned Senior counsel, Shri. Y Sadashiva Reddy, appearing for the petitioners submit that as per the sketch produced at Annexure-J to the writ petition, produced by the defendants before the trial court, only one road is existing on northern side through sy.No.85/1B to reach sy.No.85/1A. The same was disputed by Shri. H.P.Leeladhar, learned counsel for the respondents who invited the attention of this Court to Annexure-J sketch, and contended that there is another road to the southern side of Sy.No.85/1A through Sy.No.86/1B (Govinda Reddy's property). Therefore, he submitted that there is an alternate road to reach Sy.No.85/1A (Late Krishna Reddy's property), the road formed in Sy.No.85/1B belongs to the defendants for their private 13 use and not a public road. In view of the controversy, at the instance of learned counsel appearing for both the parties, Miss Sahana Devanathan, learned counsel was appointed as Court Commissioner to inspect the spot with reference to Annexure-J sketch produced in the present writ petition and to submit her report as to whether there is only one road or alternate road to reach Sy.No.85/1A. Both parties were directed to furnish copy of the entire writ petition to the Court Commissioner. On that day, while arguing the matter with vehemence, learned Senior counsel submitted that if Commissioner's report depicts that there is an alternate road then the petitioners may not press the writ petition.
13. On the same day, per contra, Shri H.P. Leeladhar, learned counsel for the respondents submits that if there is no alternate road, then the defendants allow the plaintiffs to use the road as alleged. With that understanding the Court Commissioner was appointed to submit her report. 14
14. Accordingly, Miss Sahana Devanathan, Court Commissioner, filed her report along with Memo on 14.12.2017. In the report at para No.3,5,6 and 7, the Court Commissioner has categorically stated that there exists an alternate road which reaches the school situated in the petition schedule property through Sy.No.86/1. Sy.No.86/1 is situated to the South of Sy.No.85/1A and gate of the school opens up into Sy.No.86/1, as per Annexure-C3 Photograph depicts the road leading to the Writ Petition Schedule property through Sy.No.86/1. This road has been depicted in Anneuxre-J to the Writ petition, as the road at the south of the Writ petition Schedule Property. The report further depicts that, there is sufficient area for the buses to maneuver around the well and there is enough open space for buses to be parked. Further Annexures- C6 and 7 photographs depict the surrounding area. The Court Commissioner is of the considered opinion that there exists an alternate road to reach Sy.No.85/1A as depicted in 15 Annexure-J and same is suitable for ingress and egress of school buses and students.
15. In view of the report, in all fairness, learned counsel for the petitioners should have maintained the statement made before the Court. Unfortunately, the petitioners filed objections to the Commissioner's report denying the statement of existence of alternate road.
16. When the matter was posted on the next date of hearing, learned Senior counsel was absent. Shri Sangamesh, instructing counsel for petitioners submits that he has not informed the Senior Counsel the date of hearing. The same is placed on record.
17. I have heard the learned counsel for the parties to the lis.
18. Sri Sangamesh, learned counsel for the plaintiffs/petitioners vehemently contended that the impugned order passed by the Appellate Court reversing the 16 discretionary order passed by the trial court is erroneous and contrary to the material on record. He would further contend that it is the specific case of the plaintiffs that the road was being used by the plaintiffs from several decades and throughout, and the said road has been asphalted and concrete was also done by the City Municipality. He has further contended that claiming existence of right of easement of way is the only road available to the plaintiffs for the purpose of reaching their property bearing sy.No.85/1A measuring 25 guntas, in which the first plaintiff is running a school. He would further contend that the trial court, after considering the entire material on record, appreciating the pleadings has granted temporary injunction restraining the defendants and their agents etc., from blocking the road. The said discretionary order should not have been interfered by the Lower Appellate Court unless the order passed by the trial court is perverse or capricious and the Lower Appellate Court has mechanically and technically allowed the appeal. 17
19. He would further contend that there is no dispute with regard to the existence of the road according to the plaintiffs and therefore under the provisions of Section 13(E) of the Indian Easement Act, plaintiffs are entitled to use the said road. He would further contend that in the application for temporary injunction plaintiffs have specifically contended that the defendants are illegally trying to block the road which is a concrete road formed by the Town Municipal Council. The Photographs clearly shows that defendants are blocking the road by putting barbed fencing. Therefore, it is just and necessary to grant temporary injunction. He would also contend that the lease deed dated 25.2.2016 shows that there is a road on northern side. He would further contend that in the written statement at para 21 the defendants have admitted the alleged Partition deed dated 1.8.2012. In the schedule 'D, it clearly indicates that on the southern side there exists 15 ft. road. Schedule 'D' property belongs to Janakamma. He further contended that the photographs clearly indicate that on the northern side, there is a road. In 18 the documents produced by the defendants i.e., Panchayath Muchalika Patra dated 02.01.2014 there is a mention about the existence of a road. Therefore he would contend that the Lower Appellate Court ought not to have interfered with the discretionary order passed by the trial court.
20. In support of his contentions, the learned Counsel for the petitioner relied upon the following judgments:
1) R Varadhappan Vs V Palanivel And Others (1981) 4 SCC 244,
2) Lankegowda Vs Nagarathnamma & Ors.
W.P.No.22699/2015 dated 29.8.2017.
3) Appukuttan Naira Vs Hydrose 2004 (1) KLT 350
4) Suresh Chand Vs Hindu Mal And Ors.
AIR 1994 HP 56
21. Per contra Sri. H.P. Leeladhar, learned counsel for respondents No.1 to 3 sought to justify the impugned order passed by the lower Appellate Court reversing the order passed by the trial court. He vehemently contended that the 19 prayer in the plaint clearly depicts that according to the plaintiff there is a road formed by the Municipality by putting concrete. But no material is placed on record to show that the Municipality has formed a concrete road and it is a public road. He would further contend that in para-20 of the written statement, it is specifically stated that the road was formed by the defendants for their personal use and it is not a public road and subsequently partition came to be effected on 01.08.2012 between the defendants. He would further contend that Govinda Reddy and 2nd plaintiff Bayamma w/o late Krishna Reddy- have executed a lease deed dated 25.02.2016 in favour of the first plaintiff to run a school called " Vinayaka Public School" both in sy.No.85/1A and 86/1B for a period of 30 years. He would further contend that the first plaintiff started to run the school only from 25.02.2016 onwards. The school is existing in both the lands stated supra and there is an alternate road to reach the school through sy.No.86/1, the same is stated by the learned Court Commissioner in her report.
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22. He would further contend that the Deputy Commissioner by the order dated 16.7.2016 directed the Tahsildar to take necessary action to ensure that Venkatesh Reddy and Manjunatha Reddy are sons of Krishna Reddy and 2nd plaintiff and others to use the road as public road. The said order was not implemented. Therefore, the plaintiffs No.1 and 2, Venkatesh Reddy and Manjunatha Reddy filed W.P.No.41799/2016 before this Court against the Deputy Commissioner and Tahasildar without impleading the present defendants as parties to the said writ petition for a writ of mandamus and this Court by the order dated 16.08.2016 directed to consider the representation within a week from the date of receipt of a copy of the order.
23. On the basis of the said order passed by this Court, the plaintiffs with the help of police, demolished the compound wall and formed the road as per Annexure-R11. Aggrieved by the said action of the plaintiffs and police, the respondent/defendant No.2 filed W.P.No.56577/2016 before 21 this Court against the order of the Deputy Commissioner dated 16.7.2016 impleading the present petitioners and others as parties to the said writ petition. After hearing both parties, this Court by an order dated 09.11.2016 stayed the orders passed by the Tahsildar and granted interim order as prayed for. The said order passed by this court is still in force. He would further contend that as per Annexure R2-Partition deed dated 17.6.1987 between Govindareddy, Krishna Reddy and Munireddy, the 'B' schedule property item No.2 was allotted to Krishna Reddy husband of the second plaintiff in respect of sy.No.85/1A measuring 25 guntas. The boundaries mentioned therein are:
East by : P Nanjunda Reddy's land, West by : Land belonging to Redappa, North by : Land belonging to Nanjunda Reddy and South by : Land in sy.No.56/2.22
No road is mentioned in the said boundaries. Therefore, question of plaintiff using the road from several decades as alleged in para No.7 of the plaint would not arise.
24. He further invited the attention of this Court that as per Annexure-R1 Lease Agreement executed by the 2nd plaintiff and another in favour of first plaintiff on 25.2.2016, condition No.4 relates to lease for a period of 30 years and the schedule property mentioned in the Lease Agreement are sy.No.85/1A measuring 25 guntas and sy.No.86/1 measuring 0.38 guntas situated at Hebbbagodi village, Attibele-2 Hobli, Bommasandra Post, Anekal Taluk, Bangalore District. The boundaries mentioned therein shows-'Road' towards North. Therefore, he sought to dismiss the writ petition.
25. In support of his contentions, the learned counsel for respondents relied upon the following judgments.:
1) Justiniano Antao and others Vs. Bernadette B Pereira (Smt) (2005)1 SCC 471, para 9 23
2) Sri R Paramasivan and Another Vs. T Anasuya 2005 (2) KCCR 1478 Para No.8,14,21
3) Rama Vs. Megha and others AIR 2002 Raj 309 Para No.16,17,19 and 20.
4) Narayanappa Vs. Anandamma AIR 2007 KAR 1 Para 3 & 4
26. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs have filed the suit for declaration that they have right of easement of necessity to use the road formed in sy.No.85/1B belonging to the defendants in which Town Municipal Council has formed a concrete road to reach the schedule land of plaintiff No.2, where plaintiff No.1 is running a school and for permanent injunction by contending that the road under which easementary right is claimed by the plaintiff belongs to defendant No.2 and they are using the said road for several decades and Municipality has formed a concrete road to reach the schedule land belonging to plaintiffs No.1 and 2. The same is disputed by the defendants and they contended that 24 it was a road formed between the defendants for their personal use and it was not a public road.
27. The Trial court after considering the pleadings and the objections, has recorded a finding that, "in the present case on hand, the property over which the plaintiffs are claiming right of way is already a road being used by the general public and the residents of the vicinity. It is not open only for the plaintiffs. If the plaintiffs are permitted to use the road till the disposal of the case, absolutely no hardship or loss will be caused to the defendants. As it is a road, it can be used to pass over the same and by using the same, it would not be wasted or damaged or perished for which the defendants will sustain irreparable loss which cannot be compensated in terms of money. It is to be noted that Plaintiff No.1 is running a school over the suit schedule property and pupils who are studying in the same have to reach the school from the said road only. Even if for the sake of convenience the sketch produced by the defendants taken 25 into consideration for a moment and assumes that there is an alternate road as shown by the defendants, the same will cause inconvenience to pupils studying in the school. Therefore, definitely it is the plaintiff who will sustain heavy loss and injury if they have not been permitted to use the road to ingress and egresss to their property since the existence of alternate road has not been put forth. Therefore, absolutely there will not be any hardship or injury would be caused to the defendants or to the property left by them which is a passage road. Accordingly, granted injunction.
28. The lower appellate court considering the entire material on record and on re-appreciation has recorded a finding of fact that, the defendants have admitted that, the existence of the road over their property. Further they have admitted that, it is a concrete road. However they have specifically contended that it is not a public road and it is a private road formed and maintained by them for their personal use. Hence burden is heavily cast on the plaintiffs to prove that the road 26 is a public road maintained by the Municipality. The plaintiffs have not produced any documents to show that the road that has been in existence in the property of the defendants bearing sy.No.85/1B is a public road. On the other hand, defendants have produced documents issued by the Town Panchayat which they have obtained under Right to Information Act stating that the Municipality has not been maintained any road situated in the property of the defendants. The plaintiffs have produced certain photographs to show the existence of the road. These photographs are in any manner helpful to the case of the plaintiffs because the existence of road is not in dispute. However, whether that road is a public or private road is in dispute. Defendants have produced the copy of the partition deed dated 1.8.2012. Under the said document, sy.No.85/1B has been allotted to the share of the 2nd defendant. In the schedule, there is no recital of existence of the road in the properties. Now coming to the documents produced by the plaintiffs, it is the case of the plaintiffs that 2nd plaintiff is the owner of the suit 27 schedule property and she leased out to the 1st plaintiff to run a school. The copy of the Lease Deed dated 25.2.2016.is made available on record. Schedule of the deed is sy.No.85/1A measuring 25 guntas and sy.No.86/1 measuring 38 guntas.
29. The lower Appellate court has also recorded a finding that admittedly, 2nd plaintiff is the owner of the said property. In the schedule, it is clearly mentioned towards northern side road is situated. Though a road is situated towards the northern side of the property, however, the plaintiffs are claiming right over the road situated towards western side of their property. The said road situated on the western side of the defendants' property. Plaintiffs have not given any particulars in respect of the road towards northern side of the property. Plaintiffs have not stated in respect of the road mentioned in the Lease Agreement towards northern side in the plaint averments. Even in the plaint schedule also, the plaintiffs have stated their property only and they have 28 not furnished any boundaries or any schedule in respect of the road, which they have been claiming right. When there is a road situated towards northern side of the property of the plaintiffs as per the Lease Agreement produced by themselves it is for the plaintiffs to state what is the difficulty for them, why they are prevented from using the said road and why they have been claiming right over the property situated in the properties of the defendants. Absolutely no explanation is given in the plaint averments.
30. The lower appellate court further recorded a finding that, prima facie it shows that the plaintiffs have not proved the road that has been in existence in the property of the defendants in Sy.No.85/1B which is not maintained by the Municipality. The plaintiffs have not produced any documents that the said road is a public road. Further it prima facie shows that towards northern side of the entire property of the plaintiffs there exists a road. Under these circumstances, the lower Appellate court came to the conclusion that the trial 29 court has wrongly arrived at a conclusion that the plaintiffs have made out a prima facie case. Thus in the circumstances, the lower Appellate Court has interfered with the order passed by the trial court.
31. After considering the rival contentions, in order to resolve the dispute at the instance of both the parties to the lis, on 6.12.2017 Court Commissioner was appointed as stated supra. The Court Commissioner filed her report on 14.12.2017 and in categorical terms at para No.3,5,6 and 7 has stated as under:
3. As depicted in Annexure-J to the Writ Petition, there is a road to approach Writ Petition Schedule Property Sy.No.85/1A through the property belonging to the Respondent herein, i.e. Sy.no.85/1B. Annexure C-1 and Annexure C-2 depict the road leading to the Writ Petition Schedule Property through Sy.No.85/1B. However, I also noted that there exists an alternate route that leads to the school situated on Writ Petition Schedule Property through Sy.No.86/1. Sy.No.86/1 is 30 situated to the south of Sy.No.85/1A and the gate of the school opens up into Sy. No.86/1. Annexure C-3 depicts the road leading to the Writ Petition Schedule Property through Sy.No.86/1. This road has been depicted in Annexure-J to the Writ Petition as the road at the south of the Writ Petition Schedule Property.
5. Petitioners contended that the alternate route is unsuitable for ingress and egress of school buses and children as there is a large open well situated at the corner of Sy.No.86/1. Annxure C-5 depicts the well situated as Sy.No.86/1. However, I observed that there is sufficient area for buses to maneuver around the well and there is enough open space for buses to be parked. Photographs produced at Annexures C-6 & C-7 depict the surrounding areas.
6. Sri Ramachandra Reddy purportedly the son of Sri Govind Reddy, the owner of Sy.No.86/1 contended that his property can no longer be considered as part of the school premises as Sri Govind Reddy entered into a deed of cancellation of the lease with the Petitioners due to some personal differences and thus, the road leading to the Writ 31 Petition Schedule Property through Sy.No.86/1 could not be used by the students of Petitioner No.1 school. However, he was unable to substantiate the same with the requisite documentation.
7. Regard being had to the aforementioned, I am of the considered view there exists an alternate route to reach Sy No.85/1A as depicted in Annexure-J to the Writ Petition and that the same is suitable for ingress and egress of school buses and students.
32. Though objection was filed by the petitioners to the Commissioner's report, the fact remains, that the plaintiffs are using the disputed road as alleged for several decades as pleaded in the plaint, has to be established by the plaintiffs.
According to the plaintiffs the road formed in sy.No.85/1B belongs to defendants in which Town Municipality formed a concrete road to reach the property of plaintiffs and defendant No.2. Very strangely the trial court proceeded to hold that the plaintiffs and other i.e., General public and pupils and parents of the students are using the road to reach the 32 school. It is not the case of the plaintiffs that public are also using the road including the parents of the students.
33. When the competent authority has issued a document which was produced before the Lower Appellate court, it clearly indicates that there is no public road in existence as alleged by the plaintiffs. The partition deed dated 17.6.1987 entered into between the plaintiffs and Govinda Reddy under which the 'B' property was allotted to the husband of the plaintiff No.2 i.e, item No.2 in sy.No.85/1A measuring 25 guntas. The boundaries are mentioned as under:
East by : Land of P Nanajunda Reddy West by : Land of Reddappa North by: Land of S Nanjunda Reddy South by: Land bearing sy.No.56/2 The said partition deed does not depicts the road over the defendants property to reach plaintiffs property.33
34. It is also not in dispute that the 2nd plaintiff and one Govinda Reddy executed a Lease Agreement date 25.02.2016 in favour of the first plaintiff to run a school for a period of 30 years from 10.01.2015 to 10.01.2045. The schedule property under the lease is situated both in sy.No.85/1A and 86/1 measuring 25 guntas and 38 guntras respectively. The boundaries to the leased property is:
East by : Reddappa Building West by : Janardhana Reddy Building North by : Road South by : Remaining property of sy.No.86/1 belongs to Govinda Reddy.
In view of the Lease Agreement stated supra, the sketch Annexure-J produced in the Writ petition, Report of the Court Commissioner clearly depicts that there is an alternate road to the plaintiffs to their property in sy.No.85/1A and 86/1.34
35. Whether the plaintiff has made out a case of easementary right in respect of the disputed property to reach his property through sy.No.85/1B, whether it which is a private road or municipality road as alleged by both the parties has to be adjudicated by the trial court after full-
fledged trial between the parties, that too after recording of oral and documentary evidence. Prima facie to grant an equitable order of temporary injunction, the plaintiff has not produced any documentary evidence to show that there is a road existing in sy.No.85/1B and he is using the same for more than several decades as alleged. But it clearly indicates that the road was formed between the defendants to reach their property and it is not a public road. It is not the grievance of the general public that it is public road used by them including the plaintiffs to reach their property. It is also not in dispute that the concerned authorities have issued a endorsement as per Ex.R8 dated 26.10.2016 indicating that there is no public Road as sought for under Right to Information Act.
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36. The said endorsement issued by the Hebbagodi Municipality is not at all challenged by the petitioners. It is also not in dispute that the Deputy Commissioner, by the order dated 16.7.2016 directed the Tashildar to take appropriate action to clear the road for the public and school children to reach sy.No.85/1A and it was not implemented. Therefore, the plaintiffs and sons of 2nd plaintiff approached this Court in W.P.No.41799/2016. On the basis of the order passed by this Court, the plaintiffs with the help of police people demolished the compound wall and formed road to reach the school which is the subject matter of the Writ petition in No.56577/2016 challenging the order passed by the Deputy Commissioner dated 16.07.2016. This Court by order the dated 09.11.2016 granted interim order of stay of all further proceedings in NCRCR 68/2016-17 dated 19.10.2016 Annexure-A in laying sanitary pipes in sy.No.85/1B and changing the nature and character of concrete Road laid by the petitioner in ABEFJM. The stay 36 order granted by this Court is still in force for more than a year and admittedly the plaintiffs/petitioners have not filed any application for vacating the said stay order. The said writ petition is still pending for adjudication between the parties.
37. The material on record clearly depicts that in order to show the right of easement necessitating to use sy.No.85/1A plaintiffs have not produced any material documents to show that there exists a road. The schedule given in the plaint is only in respect of sy.No.85/1A measuring 25 guntas, are the same, contrary to the contents and schedule to the Lease Agreement dated 25.2.2016 under which the plaintiffs got the property under lease from the 2nd plaintiff and her husband in respect of both sy.No.85/1A measuring 25 guntas and 86/1B measuring 38 guntas. The boundaries mentioned there in is:
East by : Reddappa's Building, West by : Janaradhna Reddy's building, 37 North by: Road and South by remaining property of sy.No.86/1 belongs to Govindareddy.
This clearly indicates that the plaintiffs have not come to the court with clean hands and suppressed the material facts of the Lease Deed itself and the schedule therein. The schedule mentioned in the plaint and the schedule mentioned in the lease deed on which basis suit was filed are entirely different. There is dispute with regard to the identity of the property. Therefore, the trial court erroneously granted temporary injunction. Hence, the lower appellate court was justified in reversing the order passed by the trial court and rejecting the application for temporary injunction, the same is in accordance with law.
38. Learned counsel for the petitioners relied upon the judgment of the Apex Court reported in the case of R Varadhappan Vs. V Palanivel and others reported in (1981) 4 SCC 244, wherein, it is stated that Right of way- 38 temporary injunction granted to the claimant-suit directed to be disposed of by trial court-meanwhile plaintiff-claimant permitted to own cost to repair the pathway and make it usable. In the said case there are no facts. The facts of that case and facts of the present case are entirely different and has no application to the facts of the case on hand.
39. The other unreported judgment relied on by the learned counsel for the petitioner i.e., W.P.No.22699/2015 dated 29.8.2017, in the case of Lankegowda Vs. Nagarathnamma, wherein the Court Commissioner was appointed to visit the spot and to file a report as per the memo of instructions issued by the plaintiff and defendants. The Taluk Surveyor was appointed as Commissioner and has filed the report which has been considered by both the Courts below. On considering the said report, the trial court has held that the Court Commissioner has answered the questions submitted by the plaintiff to the Commissioner by way of memorandum of instructions in favour of the 39 Commissioner. Taking into consideration the report of the Commissioner that there is, what is called "thirugadalu rasthe", the trial Court allowed the application restraining the defendants from interfering with the plaintiff's easementary right.
40. Admittedly in the present case, though an application was filed, according to the plaintiffs, for appointment of Court Commissioner before both the courts below, till today the same was not yet decided and there is no such report by the Court Commissioner. But this Court appointed a Court Commissioner at the instance of the counsel for the parties and to submit her report. Report of the Court Commissioner clearly depicts that there is alternative road to reach the property of the plaintiffs. Therefore, the said judgment has no application to the facts of the present case.
41. The Apex Court in the case of Justiniano Antao and Others Vs. Bernadette B Pereira (Smt) reported in (2005) 1 SCC 471, while considering the provisions of 40 Sections 13,14 and 15 of Easement Act 1882 at para No.9 held as under:
" We have gone through the three judgments i.e. trial court, first appellate court and that of the High Court. We have gone through the evidence adduced. From this, it is more than clear that there is no specific averment in the plaint or in the statement of the witnesses showing that this access from the land of the defendants was used as of right for the last 20 years. The evidence very categorically shows that the plaintiff has an access on the south east side and this was being used by her for a long time. It was pointed out that only in the year 1984 the plaintiff has started using the access through the property of the defendants. It is also admitted that the defendants were during that time on board of ship and as soon as they came back and saw the use of their land by the plaintiff, they put obstructions to it. Therefore, it is clear that it is not the case that the plaintiff has been using the access as of right through the property of the defendants for more than 20 years. Since the plaintiff has an access through the southern side of her property, we see no reason why the property of 41 other persons be used as an access to her house. If the plaintiff had no access to her house except through that of the property of the defendants then perhaps we would have considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence.
42. The said case is aptly applicable to the facts of the present case. Admittedly in the present case there is no categorical pleading that from which date the plaintiffs are using the access as averred by them. In order to establish the right by way of prescription to the detriment of the other party, the plaintiff has to aver specific pleadings or categorical evidence. The same is not established by the plaintiff before the Court. Therefore, there is no specific averment in the 42 plaint that he has been using the road through the property of the defendants for more than 20 years. Since plaintiffs have an access through the alternate road to their property, there is no reason why the property of the defendants be used as an access to their property. If the plaintiff had no access to their property except through that of the property of the defendants, then perhaps the same would have considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleading that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence.
43. Admittedly in the preset case, though, it is the case, of the plaintiff that except the road through sy.No.85/1B to 43 reach sy.No.85/1A, there is also an alternate road. But it is not specifically pleaded that since what date he is using the same for several decades. No specific pleading and no categorical evidence is produced before the court that he is using the access for more than 20 years in order to establish the right of perception to the determent of the other party. The same is not established by the plaintiff before the court. Therefore the writ petition has to be dismissed.
44. This Court in the case of 2005(2) KCR 1478 in the case of R Paramasivan and Another Vs. Smt. T Anasyya has held that when there is no alternate passage available, the question of granting relief by way of mandatory injunction to leave passage to the respondent is illegal and against settled principles. Accordingly the High Court has answered at para No.14 and 21 as under:
"14. In AIR 1978 Guj 62, it is held that "Easement of necessity would no longer be available when 44 alternative way is available to the claimant of that right".
21. When the plaintiff has acquired alternate passage by entering into an agreement with Sitalakshmi and thereby she is in continuous use of the alternative passage since 1982, it cannot be gainsaid that the plaintiff has no alternative passage much less the suit passage is a matter of easement of necessity. Having noted the ratio laid down in the above noted citations, it is clear that the conduct of the plaintiff seeking for a mandatory injunction or for such other relief belatedly after a lapse of more than 10 years from the date of so called obstruction, she resorted to legal remedy which is best known to the plaintiff and the claim of the plaintiff suffers from delay and laches in addition to having already an alternative passage which debars the Court from granting any remedy as sought for by the plaintiff in the suit. As such the trial Judge erred in holding that the plaintiff is entitled for declaration and permanent injunction...."
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45. In the case of Rama Vs. Megha AIR 2002 Rajasthan 309, while considering the provisions of Section 13 regarding Easement of necessity and alternate passage, the learned Single Judge of Rajasthan High Court held at para 19 and 20 as under:
19. In view of the above, it becomes clear that if an alterative passage is available, the easementary right of necessity cannot be claimed even if the alternative passage is inconvenient or bit longer.
20. ...... If the alternative available passage is usable and remains so throughout the year, the question of claiming easementary right may not arise.
As there is nothing on record to clarify the factual position, with the consent of learned counsel for the parties, the case is remanded to the learned First Appellate Court to re-examine as to whether the alternative passage is usable and remains so throughout the year and then to pass appropriate order.
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46. This Court in the case of Narayanappa Vs. Anandamma reported at AIR 2007 KAR 1 at para-4 held as under:
4. Further, it is pertinent to note that the instant suit is filed by the plaintiff-appellant claiming that he is the adjacent land owner in individual capacity and the suit has not been filed in the representative capacity claiming that, after the acquisition the said 15 ft. road has been formed in the Harijan colony and it is fully used by all the residents of that colony, particularly, the houses situated in front of the 15 ft. road. The petitioner cannot file a suit in individual capacity for restraining the land owner from interfering. This Court might have appreciated if the petitioner has filed the suit in a representative capacity for redressing the grievance on behalf of the members of the harijan colony. Except pleading that land has been notified and acquired for formation of harijan colony and the plaintiff-
appellant has not produced any authenticated documents like layout plan or that the competent authority has formed the said layout.
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47. In view of the aforesaid reasons, it is clear that there is an alternate road, the trial Court should not have granted temporary injunction, without recourse to the parties to adduce oral and documentary evidence. Admittedly, in the present case, the Commissioner's report also depicts that there is an alternative road and therefore the petitioners have not made out any ground to interfere with the impugned order passed by the lower Appellate Court, exercising the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Accordingly, Writ petition is dismissed with cost of Rs.5000/-.
Sd/-
JUDGE Prs/Psg*