Disposed

Sri Kullachanda U Ganapathy v. Sri M Faisal

Karnataka HC29 Aug 2023WP/26477/2018

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition by Additional Civil Judge, Virajpet, holding that the Superior Civil Judge and JMFC, Virajpet, had not committed a course error. The bench directed the trial court to decide the suit on merits based on evidence and dispose of it within twelve months, ensuring expedited disposal independent of interim observations.

What did the court decide?

The writ petition was disposed of; the Additional Civil Judge, Virajpet was directed to decide the suit on merits within twelve months, independent of observations in the impugned orders.

Sri Kullachanda U Ganapathy Vs Sri M Faisal — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:30764 WP No. 26477 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 26477 OF 2018 (GM-CPC)

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BETWEEN:

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SRI KULLACHANDA U GANAPATHY S/O KULLACHANDA M UTHAPPA AGED ABOUT 48 YEARS R/O PALANGALA VILLAGE VIRAJPET TALUK KODAGU DISTRICT-571212.

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SMT C G PONNAMMA W/O SRI C G GANAPATHY AGED ABOUT 56 YEARS R/O PALANGALA VILLAGE VIRAJPET TALUK KODAGU DISTRICT-571212.

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…PETITIONERS

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(BY SRI. RANJAN KUMAR K.,ADVOCATE)

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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AND:

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SRI M FAISAL

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S/O V M ABDUL RAHAMAN AGED ABOUT 48 YEARS

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SRI FAZHI HUSSAIN S/O V M ABDUL RAHAMAN AGED ABOUT 49 YEARS

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SRI BILLAVARA NARAYANA S/O LATE SHANTHAPPA POOJARY AGED ABOUT 59 YEARS

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NC: 2023:KHC:30764 WP No. 26477 of 2018

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SRI P R GURURAJ S/O SRI P G RAMAKRISHNA AGED ABOUT 42 YEARS

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SRI K P MUTHAPPA S/O LATE PONNAPPA AGED ABOUT 51 YEARS

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ALL THE RESPONDENTS ARE R/A PALANGALA VILLAGE VIRAJPET TALUK KODAGU DISTRICT-571212.

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…RESPONDENTS

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(BY SRI.M.S. RAJENDRA., ADVOCATE FOR R1 TO R3)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TOCALL FOR THE RECORDS IN O.S.NO.117/2017 PENDING ON THE FILE OF ADDL. CIVIL JUDGE AT VIRAJPET AND MISC APPEAL NO.2/2018 FROM THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT VIRAJPET; SET ASIDE THE ORDER DATED 28.4.2018 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AT VIRAJPET IN MA NO.2/2018 [ANNEXURE-F].

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

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NC: 2023:KHC:30764 WP No. 26477 of 2018

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ORDER

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This petition is by the defendants in O.S. No.117/2017 on the file of the Additional Civil Judge, Virajpet [for short, 'the civil Court' ]. The petitioners successfully defended the respondents' application for temporary injunction in the afore suit with the civil Court rejecting the respondents' application for temporary injunction by its order dated 16.02.2018. However, the respondents have succeeded in such application in their appeal against the civil Court's order dated 16.02.2018 in M.A. No.2/2018 on the file of the Senior Civil Judge and JMFC, Virajpet [for short, 'the appellate Court' ].

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The appellate Court, by the impugned order dated 28.04.2018, while modifying the civil Court's order dated 16.02.2018, has injuncted the petitioners from obstructing the respondents' use of 15 feet wide road in Sy. Nos.117/11, 117/14, 117/15, 117/13 and 117/19 of Palangala Village, Virajpet Taluk and directing the petitioners to remove

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NC: 2023:KHC:30764 WP No. 26477 of 2018

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the obstruction. The operative portion of the appellate Court's impugned order reads as under:

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" The defendants are hereby directed to remove all obstructions caused by them over 'B' schedule property by removing the fence put across the 'B' schedule road and by closing the trench dug across road. The defendants are hereby directed not to lock the Iron gate put across the 'B' schedule road so that plaintiffs can make use of said road during the pendency of suit. However the Iron gate is allowed to be there, where it exists now without locking the same."

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The respondents have filed their suit in O.S. No.117/2017 for declaration that they are entitled to use the access as aforesaid, which is described in the plaint Schedule-B, asserting that they are the owners of the land described in Schedule-A appended to the plaint. The respondents assert that they, and some of them are disciples of Sri Malethireke Ishwara Temple, have been using the schedule-B road from time immemorial, and the petitioners with ulterior intention have constructed

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NC: 2023:KHC:30764 WP No. 26477 of 2018

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an iron gate blocking the access to Schedule-B property apart from digging trenches. The petitioners have filed their written statement denying plaint assertions contending inter alia that the respondents have an alternative access to each of the respective lands as also the aforesaid Temple.

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The civil Court, in the light of the rival pleadings, has opined that the respondents have failed to show that they were using the subject road for a number of years as of the date the petitioners constructed the iron gate. The civil Court has also opined that balance of convenience is not in favour of granting temporary injunction. However, the appellate Court, on re-appraisal of the material on record, has concluded that the civil Court has fallen in error in rejecting the request for injunction and for removal of blockades opining that it is for the petitioners, who have contended that there is alternative access to prove the same and at this

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NC: 2023:KHC:30764 WP No. 26477 of 2018

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stage, there cannot be any definite conclusion on whether there is an alternative route.

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Insofar as the directions for removal of the

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gate and the filling up of the trench, the appellate Court has opined that the respondents are agriculturists and some of them are also disciples, and if the access which is used over a number of years is blocked abruptly, the respondents will be put to difficulties. The appellate Court in issuing directions as aforesaid has opined that a strong case is made out as regards the prima facie case and balance of convenience as also the hardship.

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Sri. K Ranjan Kumar, the learned counsel

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for the petitioners, submits that records indicate that the respondents have alternative access to their respective properties as well as the aforesaid Temple and the material in this regard has not been considered by the appellate Court. This Court must observe that the respondents have filed this suit

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NC: 2023:KHC:30764 WP No. 26477 of 2018

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contending that they have been using the subject road from time immemorial and have acquired prescriptive right to use the same but the petitioners have filed their written statement contending that the respondents cannot assert such right because there is an alternative access to each one of them.

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If the respondents succeed in establishing

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that they have acquired prescriptive right to use the subject road because they have used it from time immemorial, perhaps they could successfully contend that they would be entitled to the use of the access notwithstanding any alternative access to reach the respective lands even if the petitioners prove the availability of the alternative access. However, these are all matters for decision on merits, and this Court in exercise of jurisdiction under Article 227 of the Constitution of India would interfere only if it is shown that the concerned Court has exercised jurisdiction vested in it in a manner that would fall

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NC: 2023:KHC:30764 WP No. 26477 of 2018

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foul of law and this Court must observe that in the present case, the petitioners have not established the same.

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Therefore, there need not be any

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interference except for observing that the questions inter se the parties must necessarily be examined in the light of the evidence that the parties shall bring on record independent of any observation in any of the orders deciding on the merits of the respondents' interim application. This Court must also provide for expedited disposal of the suit in the light of the petitioners' case that the construction of the gate to the subject property is only to prevent theft and other acts of misdemeanor which constitutes continuing nuisance to the owners of the lands through which they have the subject access. Hence the following:

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ORDER

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[a] The petition stands disposed of calling upon the Additional Civil Judge,

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NC: 2023:KHC:30764 WP No. 26477 of 2018

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Virajpet to decide on the merits of the suit in O.S. No.117/2017 independent of any observations in any of the impugned orders or in the course of this order as all questions would be open to be decided on the basis of the evidence that would be placed on record.

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[b] The petitioners and the

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respondents are directed to cooperate with the civil Court in an expedited disposal of the suit, and the civil Court shall endeavor

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to dispose of the suit expeditiously, and in any event, on or before twelve [12] months from the date of receipt of a certified copy of

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this order.

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AN/-

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Sd/JUDGE

Sri Kullachanda U Ganapathy v. Sri M Faisal

Case brief

What is this about?

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Sri Kullachanda U Ganapathy v. Sri M Faisal

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