Dismissed

Sri. Malleshappa P v. Sri. Nanjundappa P

Karnataka HC20 Dec 2021WP/31715/2018

Case brief

AI extract

What is this about?

In this writ petition, the petitioner, aggrieved by an injunction order allowing a plaintiff's right to a road under a partition deed, challenged the First Appellate Court's decision. The High Court upheld the injunction, noting the deed clearly stated the petitioner agreed to leave a road for all parties, dismissing the claim of perversity.

What did the court decide?

The writ petition was dismissed; no interference with the First Appellate Court's injunction order.

Sri. Malleshappa P Vs Sri. Nanjundappa P — Partition | Karnataka HC (2021)

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W.P.No.31715/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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WRIT PETITION No.31715/2018 (GM-CPC)

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BETWEEN :

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SRI MALLESHAPPA P S/O PAKEERAPPA AGED ABOUT 49 YEARS AGRICULTURIST R/AT HOLEHANASAVADI VILLAGE HOLALURU HOBLI SHIVAMOGGA TALUK SHIVAMOGGA DISTRICT – 577 201 …PETITIONER

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(BY SRI M.V.MAHESWARAPPA, ADVOCATE)

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AND :

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SRI NANJUNDAPPA P S/O PAKEERAPPA AGED ABOUT 66 YEARS AGRICULTURIST R/AT HOLEHANASAVADI VILLAGE HOLALURU HOBLI SHIVAMOGGA TALUK SHIVAMOGGA DISTRICT – 577 201

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SRI JAYAPPA P S/O PAKEERAPPA AGED ABOUT 59 YEARS AGRICULTURIST R/AT HOLEHANASAVADI VILLAGE HOLALURU HOBLI SHIVAMOGGA TALUK SHIVAMOGGA DISTRICT – 577 201 … RESPONDENTS

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(BY SRI PRASAD B.S, ADVOCATE FOR C/R1;

R2 SERVED)

W.P.No.31715/2018

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 04.07.2018 (ANNEXURE-H) PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE, SHIVAMOGGA IN M.A.NO.40/2017 ETC. ON IA NOS.1 & 2.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Heard.

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Aggrieved by the order of injunction passed against him by the II Additional Senior Civil Judge, Shivamogga in M.A.No.40/2017, defendant No.1 in O.S.No.91/2017 on the file of the Principal Civil Judge and JMFC, Shivmogga has preferred this petition.

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The petitioner was defendant No.1, respondent No.1 was the plaintiff and respondent No.2 was defendant No.2 in OS No.91/2017 on the file of the Principal Civil Judge and JMFC, Shivmogga. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.

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The subject matter of the suit was shown as schedule ‘A’ and ‘B’ to the plaint. Schedule ‘A’ property is

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W.P.No.31715/2018

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12 feet road in Survey No.16/7 in the East-West direction described in the registered partition deed dated 10.07.1998 and Schedule ‘B’ property is 12 feet road in Survey No.16/6 in East-West direction described in registered partition deed dated 10.07.1998.

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The plaintiff and the defendants are full brothers. The plaintiff, defendants and their other family members effected partition in the joint family property under the registered partition deed dated 10.07.1998. As per the said partition deed, the land bearing Survey No.16/2 in all measuring 6 acres was partitioned amongst the brothers. In that partition, the plaintiff, defendant No.1 got 1 acre each in Sy.No.16/2 of Holehanasavadi village of Shivmogga Taluk. Defendant No.2 Jayappa got 2 acres in Survey No.16/2.

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In the last paragraph of the said registered partition deed, there is a recital to the effect that defendant No.1 has agreed to leave 12 feet wide road in his land starting from his land upto the land of defendant No.2 for use of all the parties.

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W.P.No.31715/2018

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The plaintiff filed O.S.No.91/2017 before the trial Court claiming that under the partition deed he has right of way in schedule ‘A’ and ‘B’ properties fallen to the share of defendant Nos.1 and 2 to reach the road from his land and the defendants are obstructing him from accessing the said road, therefore he sought declaration that he has right to use the said road shown in ‘A’ and ‘B’ schedule properties and for permanent injunction.

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In the suit, the plaintiff filed I.A.No.1 for temporary injunction to restrain the defendants from interfering with the enjoyment of the suit schedule road and I.A.No.2 for mandatory injunction against defendant No.1. In the said applications he alleged that to obstruct him from accessing the road, defendant No.1 has put up fence on the road and sought mandatory injunction to remove that. Defendant No.1 alone contested the said applications.

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The trial Court on hearing both side by the order Annexure-F dated 22.07.2017 rejected the applications on the ground that, in the partition deed there

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W.P.No.31715/2018

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is no mention of road from the land of defendant No.2 Jayappa to reach the land of the plaintiff, therefore he has no prima-facie case.

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Challenging that order, the plaintiff preferred M.A.No.40/2017 against the defendants before the II Additional Senior Civil Judge, Shivmoggaa.

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The First Appellate Court on hearing both side, by the impugned order allowed the appeal, reversed the order of the trial on I.A.Nos.1 and 2. Further, the First Appellate Court allowed I.A.Nos.1 and 2 filed by the plaintiff and issued injunction against the defendants from interfering with the use of the road by the plaintiff and directed the defendants to remove the obstructions caused in using the suit road.

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Aggrieved by the said order, defendant No.1 has preferred the above petition.

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Sri M.V.Maheswarappa, learned Counsel for the petitioner/defendant No.1 submits that abutting the road of defendant No.1, no property of the plaintiff

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W.P.No.31715/2018

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situates, therefore the impugned order of the First Appellate Court is perverse.

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Sri Prasad.B.S, learned Counsel for the plaintiff submits that the registered partition deed which is admitted document contains clear recital that all the parties to the partition deed are given right to use 12 feet road i.e., ‘A’ and ‘B’ schedule properties, therefore the trial Court’s finding was perverse and that was rightly set aside by the First Appellate Court.

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It is settled position of law that an order of injunction being discretionary order, unless it is shown that the same suffers the vice of perversity, arbitrariness and illegality, that cannot be interfered by the Appellate Court or this Court. Non consideration of the materials placed before it or not adhering to the legal principles amounts to perversity.

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The relationship between the parties is admitted. It is also admitted that they effected the partition in Survey No.16/2 under Annexure-A the registered partition deed dated 10.07.1998. The said

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W.P.No.31715/2018

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document shows that in that partition, the plaintiff and defendant No.1 each got 1 acre in Survey No.16/2 and which was renumbered as Survey Nos.16/5 and 16/7. Defendant No.2 got 2 acres which is renumbered as Survey No.16/6.

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In page No.6 of the partition deed, there is clear recital that defendant No.1 has agreed to leave 12 feet road from the side of Neeravari road up to the land of P.Jayappa for use of all the parties to the partition deed. So far the plaintiff’s right in the land of Jayappa i.e., defendant No.2 he has not challenged the order of injunction granted against him. Therefore that order attained finality.

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Defendant No.1 was signatory to Annexure-A, therefore recital in the said document that he has left 12 feet road in his land for use of all the parties prima-facie binds him. Therefore the finding of the trial Court that as per the partition deed there was no road was perverse. That is rightly rectified by the First Appellate Court. Therefore this Court does not find any arbitrariness,

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W.P.No.31715/2018

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illegality or perversity in the impugned order. The petition

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is dismissed.

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At this stage, learned Counsel for the petitioner submits that direction may be issued to the trial Court for early disposal of the suit.

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The trial Court is requested to dispose of the matter

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as expeditiously as possible.

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Sd/JUDGE

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KSR

Sri. Malleshappa P v. Sri. Nanjundappa P

Case brief

What is this about?

What did the court decide?

Sri. Malleshappa P v. Sri. Nanjundappa P

Case brief

What is this about?

What did the court decide?

What the court decided

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