Allowed

Smt. Jayashree W/O Krishnarao Kulakarni v. Smt. Sudha W/O Rajendra Gunjikar

Karnataka HC6 Oct 2023WP/100397/2023

Case brief

AI extract

What is this about?

High Court allowed WRIT PETITION, quashed concurrent orders of lower Courts denying interim injunction in suit for declaration of easementary rights. Court found lower Courts erred in not exercising discretion as petitioner made out prima facie case of road existence via sale deed and photographs, holding interim protection necessary pending full trial on length, width, and location dispute.

What did the court decide?

Writ petition allowed; impugned orders set aside; respondent restrained from interfering with plaintiff's right to use the suit road pending suit disposal.

Smt. Jayashree W/O Krishnarao Kulakarni Vs Smt. Sudha… — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC-D:11858 WP No. 100397 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.100397 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. JAYASHREE W/O. KRISHNARAO KULAKARNI, AGE: 70 YEARS, OCC: HOUSE WORK, R/O: 3^RD CROSS, SAPATAPUR, TQ: DHARWAD, DIST: DHARWAD-580001.

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…PETITIONER

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(BY SRI SANJAY B. CHANAL, ADVOCATE)

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AND:

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SMT. SUDHA W/O. RAJENDRA GUNJIKAR, AGE: 50 YEARS, OCC: BUSINESS, R/O: 3^RD CROSS, SAPATAPUR, “DHARAMPURI”, TQ: & DIST: DHARWAD-580001.

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2023.10.10 14:48:43 +0530

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NOW AT: B-003, SHREERAMPPURUSH CO-OPRETAIVE HSG LIMITED, MANORAMA APARTMENT, GURU MANDIR ROAD, SARASWAT COLONY, DOMBIVLI (EAST) MUMBAI-421201.

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SMT. GEETA W/O. SHRIVAS MANCHALI, AGE: 48 YEARS, OCC: BUSINESS, NOW AT: B-6 TARANG CO-OPERATIVE HOUSING SOCIETY, CHHEDA ROAD, NEAR JOSHI HIGH SCHOOL, DOMBIVLI (EAST) MUMBAI-421201.

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SMT. HARASHADA W/O. HEMANTH TULIPADATUR, AGE: 46 YEARS, OCC: BUSINESS, R/O: 3^RD CROSS, SAPATAPUR, “DHARAMPUR”, TQ: & DIST: DHARWAD-580001.

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NOW AT 2002, CORAL RUNWAL PEARL, BEHIND R MAIL, MANPADA,

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2 - NC: 2023:KHC-D:11858 WP No. 100397 of 2023

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GHODBUNDER ROAD, THANE (WEST) MUMBAI-400607.

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…RESPONDENTS

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(BY SRI B.V. SOMAPUR AND KUM. RANJITA ALAGAWADI, ADVOCATES FOR R1 TO R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND QUASH THE ORDER DATED 19/09/2022 PASSED BY THE I ADDITIONAL CIVIL JUDGE AND JMFC DHARWAD, IN O.S. NO. 508/2022 PRODUCED AT ANNEXURE-D AND CONSEQUENTLY ORDER DATED 07/01/2023, PASSED BY THE IV ADDITIONAL SENIOR CIVIL JUDGE AND JMFC DHARWAD IN M.A. NO. 32/2022 PRODUCED AT ANNEXURE-F, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned writ petition is filed by the plaintiff assailing the concurrent orders of the Courts below passed on an application filed under Order XXXIX Rule 1 and 2 R/w Section of Code of Civil Procedure. Both the Courts have declined to grant interim injunction to the plaintiff. These concurrent orders are under challenge.

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3 - NC: 2023:KHC-D:11858 WP No. 100397 of 2023

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The petitioner/plaintiff has instituted a suit

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seeking declaration of easementary rights and consequential relief of injunction. The petitioner/plaintiff is asserting easementary right on the basis of registered sale deed executed by his vendor. Placing reliance on the recital in the sale deed, plaintiff claims the property sold by his vendor is on the hind side and therefore to have access to the eastern road, he is entitled to use the road situated in defendants’ property which is facing road. Both the Courts have declined to grant injunction on the ground that width and length of the road is not indicated in the sale deed. Both the Courts have also declined to grant interim injunction on the ground that alleged road runs in the middle of defendants’ property and therefore question of granting interim injunction would not arise.

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On examining the material on records, I have

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also given my anxious consideration to the photographs produced by petitioner/plaintiff before this Court. If the recitals in the sale deed coupled with photographs are

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4 - NC: 2023:KHC-D:11858 WP No. 100397 of 2023

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examined, I am of the view that petitioner has succeeded in making out of prima-facie case. It is quite strange to note that counsel appearing for defendants does not dispute the existence of road. However, defendants are seriously disputing the location of road in the property. Merely, because there is a dispute in regard to location of

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the suit road, Courts cannot decline to grant some protection to the petitioner. If the recital in the sale deed indicates that petitioner is entitled to have access through the road, I am of the view that both the Courts erred in not exercising discretion in favour of plaintiff. The photographs clearly depict existence of road. The dispute as to what is the length and width of the road and its location needs to be adjudicated by way of full-fledged trial. If prima-facie material reveals in regard to existence of road, to prevent injury and irreparable loss, both the Court were required to exercise judicial discretion in favour of plaintiff. It is in this background this Court would find that the concurrent orders suffer from serious perversity and are liable to be set-aside by this Court. Both the

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5 - NC: 2023:KHC-D:11858 WP No. 100397 of 2023

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Courts have not properly assessed the prima-facie material placed on record. For the reasons stated supra, I proceed to pass the following;

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ORDER

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i) Writ petition is allowed.

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ii) The impugned order dated 19.09.2022 passed by I Additional Civil Judge and JMFC, Dharwad in O.S.No.508/2022 and the order dated 07.01.2023 passed by IV Additional Senior Civil Judge and JMFC, Dharwad in M.A.No.32/2022 are hereby set-aside.

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iii) The I.A.No.1 filed under Order XXXIX

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Rule 1 and 2 R/w Sec.151 of CPC is allowed. Respondents are hereby restrained from interfering with the plaintiff’s right to use the suit road pending consideration of the suit.

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6 - NC: 2023:KHC-D:11858 WP No. 100397 of 2023

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iv) Any observations made by this Court shall not be taken note of by the Trial Court while deciding the suit on merits.

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Sd/JUDGE

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AM List No.: 1 Sl No.: 9

Smt. Jayashree W/O Krishnarao Kulakarni v. Smt. Sudha W/O Rajendra Gunjikar

Case brief

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Smt. Jayashree W/O Krishnarao Kulakarni v. Smt. Sudha W/O Rajendra Gunjikar

Case brief

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What did the court decide?

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