IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.34359 OF 2017 (GM-CPC) BETWEEN:
1. H.S.SHIVAPPA, S/O LATE SHIVAPPA, AGED ABOUT 67 YEARS, 2. H.S.CHANDRAMOULESH, S/O H.S.SHIVAPPA, AGED ABOUT 33 YEARS, 3. H.S.GANESHKUMAR, S/O H.S.SHIVAPPA, AGED ABOUT 29 YEARS, ALL ARE RESIDING AT HOREYALA VILLAGE, BEGUR HOBLI, GUNDLUPET TALUK – 571111. ... PETITIONERS (BY SRI.ADITHYA KUMAR.H.R., ADVOCATE FOR SRI.DAYANAND S.PATIL, ADVOCATE) AND:
1. SHIVAPPA, S/O LATE CHINNAPPA, AGED ABOUT 40 YEARS, 2. MAHADEVAPPA, S/O LATE VEERAPPA, AGED ABOUT 65 YEARS, 3. BELLAPPA, S/O LATE VEERAPPA, AGED ABOUT 58 YEARS, 4. SHANKARA, S/O MAHADEVAPPA, AGED ABOUT 34 YEARS, ALL ARE RESIDING AT HOREYALA VILLAGE, BEGUR HOBLI, GUNDLUPET TALUK – 571111. ... RESPONDENTS (BY SRI.B.SHARATH KUMAR, ADVOCATE FOR C/R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.10.7.2017 PASSED BY THE SENIOR CIVIL JUDGE, AND JMFC GUNDLUPET IN M.A.NO.20/2017 AS PER ANNEX-A AND ALLOW THE I.A.NO.1 IN O.S.NO.240/2016 PENDING ON THE FILE OF ADDL. CIVIL JUDGE AND JMFC, GUNDLUPET AND ETC.
THIS WRIT PETITION COMING ON PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the plaintiffs in the injunctive suit in O.S.No.240/2016 are invoking the writ jurisdiction of this Court for assailing the order dated 10.07.2017, a copy whereof is at Annexure – A whereby, the learned Senior Civil Judge, Gundlupet, having allowed respondent/defendants’ M.A.No.20/2017 has set aside the order dated 30.01.2017 made by the learned Addl. Civil Judge, Gundlupet, allowing petitioners’ I.A.No.1 filed under Order XXXIX Rules 1 & 2 of CPC, 1908. Thus, the petitioners are grieving against denial of injunctive relief to them.
2. The contesting respondents having entered caveat, oppose the Writ Petition.
3. Learned counsel for the petitioners argues that the impugned order suffers from error of law apparent on its face inasmuch as the order made by the learned trial Judge granting temporary injunction could not have been upset by the learned Senior Civil Judge in respondents’ M.A.No.20/2017; circumspection expected of the Appellate Judge has not been exercised while treating the appeal; rights of the petitioners for using the cart way emanates from the sale deed of the year 1936, this has not been duly treated by the learned Appellate Judge; so arguing, he seeks allowing of the Writ Petition.
4. Learned counsel for the Caveator/respondents per contra contends that whatever rights petitioners seek to derive from 1936 sale deed have withered away by virtue of subsequent sale deed dated 10.01.1968 which comprises the very same property; the Lower Appellate Court after appreciating all aspects of the matter has allowed the appeal because there is other way available to the petitioners for use; in any circumstance, even easements do not flow since the subject land is neither a dominant heritage nor a servient heritage. So contending, he seeks dismissal of the Writ Petition.
5. Having heard the learned counsel for the parties and having perused the Petition Papers, this court declines to interfere in the matter for the following reasons:
(i) the Lower Appellate Court on the basis of the material on record has recorded a tentative finding that the identity of the property is yet to be established and that ‘A’ schedule property has nothing to do with the land of the plaintiffs at all inasmuch as neither it is adjacent nor subjacent;
(ii) the other owners whose land is sandwich between schedule ‘A’ property and the land belonging to the plaintiffs, have not signified their consent and that even an averment is lacking as to their consent or no objection in the pleadings of the petitioners; even the sale deed banked upon by the petitioners does not reserve any cart way for the benefit of dominant heritage; and, (iii) the Horeyala village map prima facie shows that petitioners have got an alternate way to reach his land; even otherwise also, no balance of convenience lies in favour of the petitioners; the Lower Appellate Court specifically recorded a finding as to the availability of the cart track elsewhere; the sale deed dated 10.01.1968 which apparently comprised the property in the sale deed of the year 1936, takes away whatever right the petitioners are asserting here;
In the above circumstances, this Writ Petition being devoid of merits, fails.
However, the court below shall not be influenced by these observations in the course of trial and disposal of the suit.
Writ Petition is dismissed. No costs.
Sd/- JUDGE cbc