Karnataka High Court
Sri S V Shreerama Reddy vs Sri S M Shivanna on 10 April, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.30717/2012 (GM-CPC)
BETWEEN:
1. SRI S.V.SHREERAMA REDDY
AGED ABOUT 75 YEARS
S/O LATE S.N.VENKATA REDDY
R/AT NO.16, 12TH CROSS
14TH MAIN ROAD, LAKKASANDRA
EXTENSION,
BANGALORE - 560027.
2. SRI S.V.YELLA REDDY
AGED ABOUT 72 YEARS
S/O LATE S.N.VENKATA REDDY
R/AT NO.117/6, 6TH CROSS
1ST MAIN ROAD, JAKKASANDRA
ESTENSION, KORAMANGALA
1ST BLOCK, BANGALORE - 34.
3. S.V.KRISHNA REDDY
S/O LATE S.N.VENKATA REDDY
AGED ABOUT 72 YEARS
R/AT SARJAPURA VILLAGE
ANEKAL TALUK
BANGALORE URBAN DISTRICT.
4. S.V.JAYARAMA REDDY
S/O LATE S.N.VENKATA REDDY
AGED ABOUT 63 YEARS
R/AT SARJAPURA VILLAGE
ANEKAL TALUK
2
BANGALORE URBAN DISTRICT.
5. S.V.SHANKARA REDDY
S/O LATE S.N.VENKATA REDDY
AGED ABOUT 57 YEARS
R/AT NO.17, 4TH BLOCK
S.B.M.COLONY, SRIRAMPURA
2ND STAGE, MYSORE.
... PETITIONERS
(BY SRI C.SHANKAR REDDY, ADV.)
AND:
1. SRI S.M.SHIVANNA
S/O S.N.MUNISWAMY REDDY
AGED ABOUT 62 YEARS
R/AT NO.2277, 16TH CROSS
21ST 'A' MAIN ROAD, SECTOR 1
H.S.R.LAYOUT
BANGALORE - 102.
2. SRI S.M.GOPALA REDDY
S/O S.N.MUNISWAMY REDDY
AGED ABOUT 58 YEARS
R/AT NO.265, SREERAMA
NILAYA, 7TH CROSS, 27TH MAIN
SECTOR F-1, HSR LAYOUT
BANGALORE - 560102.
3. SRI S.M.NARAYANA REDDY
S/O S.N.MUNISWAMY REDDY
AGED ABOUT 54 YEARS
R/AT NO.715, MATHRU SHREE NILAYA
12TH CROSS, 25TH MAIN ROAD
SECTOR -1, H.S.R.LAYOUT
BANGALORE - 560102.
4. M/S. DIYA PROJECTS PRIVATE LIMITED
NO.1080, 1ST FLOOR, 8TH CROSS
14TH MAIN, 6TH SECTOR
3
H.S.R.LAYOUT
BANGALORE - 560102.
REP. BY ITS DIRECTOR
R.B.SHANKAR PRASAD
... RESPONDENTS
(BY SRI M.G.S.KAMAL, ADV. FOR C/R1-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ORDER DATED 7.7.2012 PASSED
BY THE PRESIDING OFFICER, FTC-III, BRD AT
BANGALORE IN MA 25/2012 AT ANNEXURE-G TO THE
WRIT PETITION AND RESTORE THE ORDER MADE ON IA
NO.1 IN O.S.NO.600/2011 ON THE FILE OF THE SR. CIVIL
JUDGE AT ANEKAL AS PER ANNEXURE-E.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are the plaintiffs and the respondents are the defendants in O.S.No.600/2011 on the file of the Senior Civil Judge at Anekal. Suit has been instituted to pass a decree declaring that the plaintiffs have easementary rights over the plaint 'A' schedule property, which is shown as plaint 'B' schedule, to reach the suit 'C' schedule property from Sarjapura Road, for ingress and egress, as shown in the rough suit sketch and for 4 passing of a decree of permanent injunction restraining the defendants and persons claiming through them from causing any obstruction, hindrance, blocking or stopping of the plaintiffs from using plaint 'B' schedule property as egress and ingress to reach plaint 'C' schedule property from Sarjapura Road situated on the western side of the suit 'A' schedule property land, as indicated in the rough sketch and for grant of consequential reliefs. Along with the plaint, IA.No.1 was filed to grant an order of temporary injunction. The defendants entered appearance and filed written statement to the suit and objections to IA.No.1. The learned Trial Judge passed an order dated 07.03.2012 and allowed IA.No.1, thereby temporarily restrained the respondents from blocking the ingress and egress of the petitioners to reach their property.
2. Feeling aggrieved, the defendants filed MA.No.25/2012 in the appellate Court. By a judgment dated 07.07.2012, learned Trial Judge finding that there 5 was a partition between the parties earlier, which was reduced into a compromise in O.S.No.270/1989 in respect of the suit land and that they being the documents of title and applying the norm 'possession follows title', the revenue documents showing the name of the share holders, the claim of the plaintiffs that schedule 'B' property is meant for passage to enter their land i.e., 'C' schedule property was not accepted, in the absence of recital in the title deeds. Finding no prima facie case and the trail Court having committed an illegality in allowing IA.No.1, taking note of an undertaking filed by the defendants in the form of a memo dated 27.06.2012, allowed the appeal and set aside the order passed by the trial Court on IA.No.1. The undertaking given by the defendants in the form of a memo dated 27.06.2012 was placed on record and the appellants-defendants were directed to reserve the passage measuring east to west 420 feet and north to south 25 feet on the southern portion of 'A' schedule property and the plaintiffs were permitted to use the 6 same to reach their land i.e., 'C' schedule property and it was made clear that the order will be in force till disposal of the suit on merits. The judgment passed on 07.07.2012, by the appellate Court has been assailed in this writ petition.
3. Sri. C.Shankar Reddy, learned Advocate appearing for the petitioners submitted that the undertaking filed in the appellate Court by the defendants-appellants was in respect of an area measuring 420 x 25 feet - 'B' schedule property and with that it is impossible for the petitioners-plaintiffs to reach their property i.e., 'C' schedule property and hence, there is a need for interference in the matter.
4. Mr. Kamal, learned Advocate appearing for the respondents on the other hand submitted that after the impugned judgment was passed, the defendants filed IA.Nos.3 and 4 in the trial Court to grant an order of temporary injunction against the plaintiffs from interfering with the construction work being carried on 7 by defendant No.4 in his property. Learned counsel submitted that another undertaking was given to the trial Court at the time of hearing IA.Nos.3 and 4, that the area which would be left for the use and enjoyment of the plaintiffs pending disposal of the suit would be 510 x 25 feet as against the undertaking which was given in the appellate Court in respect of an area measuring 420 x 25 feet. Learned counsel submitted that with the said undertaking the plaintiffs can reach from Sarjapura Road to their property - 'C' schedule property. He further submitted that the trial Court by an order dated 18.09.2012, taking note of the undertaking given by the defendants directed them to obey the undertaking for reserving the passage towards southern side till the date of passing further orders and allowed IA.Nos.3 and 4.
5. Sri. Shankar Reddy, submitted that the said order has been questioned in a miscellaneous appeal and the matter is pending.
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6. There is no dispute that the predecessors of the petitioners and respondents 1 to 3 were brothers and had entered into a oral partition in respect of the suit property i.e., Sy.No.516 of Sarjapura Village, measuring 5 acres 13 guntas. Subsequently, there was litigation in O.S.No.270/1989. The parties entered into a compromise and the property was divided as per the partition which had taken place earlier between the brothers. Indisputedly, the compromise does not provide for any area being earmarked in favour of the plaintiffs herein for the purpose of reaching their property from Sarjapura Road. However, the plaintiffs contend that prior to the said compromise they were using the required space for reaching their property from Sarjapura Road and that the same has become a easement of necessity. The claim of the plaintiffs having been denied, is required to be tried and decided in the suit.
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7. For the present, the defendants having undertaken to provide an area of 510 x 25 feet of land on the southern side i.e., from Sarjapura Road till the property of the plaintiffs i.e., 'C' schedule property, the defendants have the space to access their said property. Since the courts below have made an equitable arrangement during the pendency of the suit, the impugned judgment being neither irrational nor illegal, no interference in the matter in exercise of jurisdiction under Article 227 of the Constitution is warranted.
In the result, petition fails and shall stand dismissed. However, the respondents having given the undertaking before the trial Court, while deciding IA.Nos3 and 4 to provide 510 x 25 feet of land for ingress and egress of the plaintiffs to reach their property from Sarjapura Road, they shall abide from the said undertaking, till the suit is decided in accordance with law.
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Findings recorded in the impugned order and judgment being limited for consideration of the prayer in IA.No.1, shall not bind the trial Court while deciding the suit on its merit. Contentions of both parties are left open for consideration. No costs.
Sd/-
JUDGE ca