Allowed

Sri Narayana Pai T v. Ms Swarna Shenoy

Karnataka HC3 Apr 2024WP/15286/2022

Case brief

AI extract

What is this about?

Defendants challenged an appellate order granting plaintiffs injunction over a set-back/parking area on Sy.No.59, Shivalli Village. The High Court held the area was subject to a compromise decree reserving it as access for defendants; an interim injunction granting final relief could not be issued. The writ was allowed and the trial court's rejection of injunction restored.

What did the court decide?

Impugned appellate order set aside; trial court order rejecting injunction restored; southern portion of Sy.No.59 to remain unobstructed for defendants' access, subject to suit outcome.

Sri Narayana Pai T Vs Ms Swarna Shenoy — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 15286 OF 2022 (GM-CPC)

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BETWEEN:

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SRI NARAYANA PAI T AGED ABOUT 77 YEARS S/O LATE DR T M A PAI

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SMT VIJAYALAXMI PAI T AGED ABOUT 74 YEARS W/O SRI NARAYANA PAI T

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SRI SUNIL PAI T AGED ABOUT 40 YEARS S/O SRI NARAYANA PAI T

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SRI SANJAY PAI T AGED ABOUT 49 YEARS S/O SRI NARAYANA PAI T

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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M/S MANIPAL SOBHAGYANIDHI LTD., REPRESENTED BY SMT VIJAYALAXMI M PAI

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ALL ARE R/AT ANANTHANAGAR MANIPAL

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UDUPI TALUK AND DISTRICT – 576 104. INCORPORATION UNDER COMPANIES ACT, 1956 (NO.1 OF 1956) AND COMPANY IS LIMITED.

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…PETITIONERS

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(BY SHRI PRADEEP NAIK, ADVOCATE FOR P1 TO P5 (NOC))

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AND:

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MS. SWARNA SHENOY AGED ABOUT 31 YEARS RESIDING AT NO.16-133D2 1ST FLOOR, DWARAKA D-60 ANANTHANAGAR, 2^ND STAGE UDUPI TALUK AND DISTRICT – 576 104.

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SRI BALAKRISHNA SHENOY AGED ABOUT 61 YEARS S/O SRI K VASUDEVA SHENOY RESIDING AT NO.D-60, SANJEEVA GOWDA ANANTHANAGAR 2^ND STAGE MANIPAL

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UDUPI TALUK AND DISTRICT – 576 104.

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UDUPI CITY MUNICIPALITY BY ITS COMMISSIONER, UDUPI – 576 101.

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…RESPONDENTS

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(BY SHRI AJITH A. SHETTY, ADVOCATE FOR R1 AND R2 SHRI T.I. ABDULLA, ADVOCATE FOR R3)

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THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 07.09.2021 PASSED IN M.A.NO.9/2021 BY THE COURT OF THE ADDITIONAL SECOND SENIOR CIVIL JUDGE AND JMFC, AT UDUPI, AS PER ANNEXURE-H AND DISMISS THE SAID APPEAL BY CONFIRMING THE ORDER DATED 11.06.2021 PASSED IN O.S.NO.667/2020 BY THE COURT OF THE 3^RD ADDITIONAL CIVIL JUDGE AND JMFC, AT UDUPI AS PER ANNXEURE-F BY ALLOWING THIS WRIT PETITION.

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THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The defendants in O.S.No.667 of 2020 on the file of the III Additional Civil Judge and JMFC, Udupi have filed this writ petition challenging the order passed by the II Additional Senior Civil Judge and JMFC, Udupi dated 07.09.2021 in M.A.No.9 of 2021 in terms of which, the Appellate Court allowed the appeal and set aside an order dated 17.11.2020 passed by the Trial Court in O.S.No.667 of 2020 and granted injunction restraining the defendants from obstructing or interfering the plaintiffs and other occupants of the building parking their vehicles in the XYZ area/set back cum parking area excluding the H5(1) area of the plaint schedule property.

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The parties shall henceforth referred as they were referred before the Trial Court.

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The sequential facts that are essential to consider the case of the plaintiffs are that they claimed that an immovable property bearing Sy.No.59/P2 measuring 6 cents situate at Shivalli Village Udupi Taluk

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belonged to plaintiff No.2 who settled it in favour of plaintiff No.1 in terms of a Deed of Settlement dated 27.05.2018. They claimed that the ‘A’ schedule property belonged to Shri.K.Vasudeva Shenoy who is the grandfather of first plaintiff and the father of the second plaintiff. The second plaintiff had taken possession of the ‘A’ schedule property in the year 1980 from his father to conduct business. The formalities of registration of a Deed of Settlement was completed by Shri.K.Vasudeva Shenoy in favour of second plaintiff as per the Deed of Settlement dated 20.06.2009.

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The second plaintiff claimed that he had acquired title over the ‘A’ schedule property in the manner mentioned above. The land and the building lying within the plaint ‘A’ schedule property was described as Plot No.H4 and H5 respectively. The plaintiffs contend that Plot No.H5 comprised of a forty year old commercial building and a set back of seven feet was set apart, which was used for parking by the occupants of the building. The

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plaintiffs claimed that except they and the occupants, none had any right to enter into the set back area. The plaintiffs claimed that though a deed of settlement was executed in the year 2009, Shri.K.Vasudeva Shenoy had orally settled and handed over the possession of the property in favour of second plaintiff in the year 1980. The plaintiffs contend that to the west of Sy.No.59 measuring 1.08 acres of land, the portion of the very same survey number was situated. They claimed that defendant No.1 had purchased about 75 cents of western portion in Sy.No.59 of Shivalli Village from his vendor from Shri Sripathi Acharya. They claimed that defendant No.1 had access to 75 cents of land from the western and northern side and there was no need of any access from the property of Shri.K.Vasudeva Shenoy at any point of time as it was fully covered by a building as stated above. Likewise, defendant Nos.2 to 5 purchased different portions of Sy.No.59, which were open lands lying within the road margin of National Highway 169-A. They claimed that Shri.K.Vasudeva Shenoy had kept open two road

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accesses to his property, one of which, was in the northern eastern corner and the other was from the Manipal House Building Co-operative Society Layout through Sy.No.318 facing Plot No.H-4 and touching the south western corner of Plot No.H5 in Sy.No.59. They contended that in the year 1992, defendant No.1 attempted to interfere with the peaceful possession and enjoyment of the plaint ‘A’ schedule property by Shri.K.Vasudeva Shenoy and the second plaintiff. In that regard, a proceeding was initiated by defendant No.1 in O.S.No.456 of 1992. The said suit was settled.

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The plaintiff contended that during the pendency of the suit in O.S.No.456 of 1992, the defendant No.1 attempted to trespass into the H-5 property of the plaintiffs, which was objected by the second plaintiff, which resulted in a false complaint against them before the jurisdictional police, which was ultimately closed by filing a ‘B’ report. They contended that based on the ‘B’ report, second plaintiff filed a suit for defamation and damages in O.S.No.34 of 2000 and the Court awarded

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damages, which was recovered by second plaintiff. They contended that the National Highway Authority had taken up development works of NH-169A on the northern side of the plaint ‘A’ schedule property and therefore, the access to the plaintiffs was completely blocked on the northern and eastern side and they had to depend on the road running through Manipal House Building Co-operative Society Layout. They claimed that the road works was completed and the height of the road was increased by three to five feet than the ground level in Sy.No.59 and there was no scope to use the road by entering Sy.No.59. With these and other contentions, the plaintiffs claimed that the defendants were trying to use the set back area in the schedule ‘A’ property between H4 and H5 to access their properties. The plaintiffs claimed that this area was used exclusively for parking their vehicles and the defendants had no right, title or interest to enter this area and hence, sought for a declaratory decree to declare to the southern portion of the plaint ‘A’ schedule property, which was marked in a sketch annexed to the plaint, as a

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set back and reserved area for parking the vehicles of the plaintiffs and their customers and for perpetual injunction to restrain the defendants from tress-passing into the plaint ‘A’ schedule property or to forcibly form any road thereon. Along with the suit, an application for interim injunction was filed to restrain the defendants from entering the said area.

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The suit was contested by the defendant No.3 and defendant No.6 who filed their separate Written Statement. They contended that the suit in O.S.No.456 of 1992 that was filed against the grandfather of plaintiff No.1 and father of plaintiff No.2 was decreed on 13.12.1995 in terms of a compromise. They claimed that as per the said compromise, the father of first plaintiff, his men and all persons claming through or under him were restrained perpetually from interfering in any manner with the defendant No.1 peacefully enjoying the pathway cum road situate on the southern side of Sy.No.59 shown in the Commissioner’s report and sketch or from putting up any construction or obstruction of any nature on the said road.

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The defendant No.3, therefore contended that the plaintiffs were not the owners of the plaint schedule property and hence, the plaintiffs are estopped from claiming any right over the southern portion of Sy.No.59. They claimed that the father of the second plaintiff sold Sy.No.59 to the defendant No.1 in terms of a Sale Deed dated 14.02.1984 and the sketch annexed to the said Sale Deed revealed the existence of a piece of land marked as H-11 to be used as a road and there was a clear recital to the effect in the Sale Deed. He further contended that the defendant No.1 had purchased 12 sq.mtrs. of land from Shri.S.Atmarama Nayak in terms of a Sale Deed dated 15.06.1995 with an intention to widen the existing road, which was the subject matter of compromise in O.S.No.456 of 1992. Therefore, the defendant No.3 claimed that the plaintiffs cannot claim any exclusive right over the southern portion of Sy.No.59 and hence, contended that the suit was not maintainable. He also contended that despite the settlement reported in O.S.No.456 of 1992, the plaintiffs had gone over board by blocking the said pathway by dumping construction

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material and by parking vehicles. With these and other contentions, the defendants claimed that the plaintiffs were not entitled to any of the reliefs claimed for in the suit. The application for injunction was also contested on the same grounds.

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The defendant No.6 also filed his Written Statement more or less re-iterating the contentions urged by defendant No.3.

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The Trial Court after considering the contention of both the parties, rejected the application filed by the plaintiffs for interim injunction on the ground that all the documents produced by the defendants established that the southern portion of Sy.No.59 was reserved as a road and therefore, if the plaintiffs were granted an order of injunction, there was every likelihood that they would close the road and ensure that the defendants do not have access to reach their property easily from the National Highway.

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Being aggrieved by the said order, the plaintiffs filed M.A.No.9 of 2021. The Appellate Court, allowed the appeal

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in terms of the impugned order on the ground that plaintiff No.2 was not a party to the decree in O.S.No.456 of 1992 and the compromise entered into was only with the father of plaintiff No.2. It also held that there were innumerable documents, which showed that there were multiple roads to access the property of the defendants and even the Court Commissioner in O.S.No.456 of 1992 had identified four roads to reach the property of the defendants. It held that the Commissioner’s report indicated that the four roads were not as convenient than through accessing the southern side of Sy.No.59. It therefore held that the defendants were not deprived of their access through the said four roads to reach their property. It held that since the plaintiffs had filed a comprehensive suit contending that the southern portion of Sy.No.59 was a set back cum parking area and not a road, the said issue had to be adjudicated after a full-fledged trial. Therefore, it held that the balance of convenience lay in favour of the plaintiffs and the hardship that would be caused to the plaintiffs was much more than the hardship that would be

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caused to the defendants. Being aggrieved by the said order, the defendants have filed this appeal.

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This Court appointed a Commissioner to visit the suit schedule property and to identify whether the plaintiffs had laid any obstruction on the southern side of Sy.No.59, which was the subject matter of compromise in O.S.No.456 of 1992. The Commissioner has submitted an exhaustive report, which shows that the southern side of Sy.No.59 is the nearest access to the property of the defendants and was the subject matter of O.S.No.456 of 1992 and was the patch of land that was given up by the father of plaintiff No.2 in favour defendant No.1 to be used as an access to reach his property. He has also mentioned that a small sump is put up by the plaintiffs, which is outside the area that was compromised in O.S.No.456 of 1992.

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The learned counsel for the defendants

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submitted that the father of plaintiff No.2 had agreed that the southern portion of Sy.No.59 shall perpetually be

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allowed to be used as an access by the defendant No.1 to reach his property. Therefore, he contends that the plaintiffs cannot now lay any obstruction or block this particular patch of land. He contends that this is the nearest access to reach the Highway and therefore, the order of the First Appellate Court granting injunction in favour of the plaintiffs caused more hardship to the defendants than to the plaintiffs. He contends that the question whether the compromise entered into in O.S.No.456 of 1992 was not authorized by him or not and whether it did not bind him or not, are all questions, that

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have to be adjudicated and decided in the suit and pending disposal of the suit, the Court could not have granted any order of interim injunction, which had the effect of granting the final relief to the plaintiffs. He therefore contended that pending disposal of the suit, the property as it stood as per the compromise in O.S.No.456 of 1992 had to be maintained.

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Per contra, the learned counsel for the plaintiffs

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contended that the compromise entered into in O.S.No. 456 of 1992 by the father of plaintiff No.2 did not bind him as he was the person interested in the said property as on the date of the compromise. He further contends that the plaintiffs have established a business and the customers of the plaintiffs are allowed to park their vehicles in the setback area and allowing the defendants to use the set-back area to access their property would deprive the plaintiffs of the use of that particular space, which would adversely impact their business. Further, he contends that there are other roads, which can be used by the defendants to access their property and the defendants cannot compel that the set-back area in Sy.No.59 should be permitted to be used as an access.

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I have considered the submissions made by the learned counsel for the plaintiffs and the defendants.

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A perusal of the relief sought for in the suit discloses that the plaintiffs attempted to challenge the

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compromise in O.S.No.456 of 1992 though they did not say it in specific terms. The father of plaintiff No.2 had agreed that the southern portion of Sy.No.59 shall be used perpetually as an access by the defendants in O.S.No.456 of 1992. The plaintiffs have now sought for a declaration that this portion is the set-back and reserved area for parking the vehicles of the customers, shop-mates, etc., Once the father of plaintiff No.2 had entered into a compromise with the defendant No.1, the plaintiffs cannot denigrate the compromise by claiming that they are not bound by it or that it is still a set-back area or a reserved area. If the plaintiffs are not bound by the compromise in O.S.No.456 of 1992, they were bound to seek appropriate remedy in the suit and so long as the compromise remains, the plaintiffs cannot upset the benefit that the defendants have drawn from the compromise in O.S.No.456 of 1992. The question whether the compromise bound the interest of the plaintiffs or not and whether the southern portion of Sy.No.59 continued to be a set-back area of the plaintiffs are all questions that had

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to be adjudicated by the Trial Court. The Appellate Court, therefore could not have granted an order of injunction in favour of the plaintiffs, which had the effect of granting the final relief itself to the plaintiffs. In that view of the matter, this Court is of the opinion that the impugned order passed by the Trial Court warrants interference.

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In view of the above, I pass the following:

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ORDER

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i) The Writ Petition is allowed.

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ii) The impugned order dated 07.09.2021 passed in M.A.No.9 of 2021 by the Court of the Additional II Senior Civil Judge and JMFC, Udupi is set aside and the order passed by the Trial Court dated 11.06.2021 passed in O.S.No.667 of 2020 by the Court of the III Additional Civil Judge and JMFC, Udupi is restored.

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iii) It is made clear that neither the plaintiffs nor their customers or anybody else shall obstruct the defendants from using the southern portion of Sy.No.59 of Shivalli Village, Udupi District as

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an access to reach their respective properties and this shall always be kept free without any obstruction by either the plaintiffs or any person including their customers, servants, agents, etc., This shall however be subject to the outcome of the suit.

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It is needless to mention that even the defendants shall not change the nature of the southern portion of Sy.No.59 of Shivalli Village, Udupi District except using it as an access to reach their properties.

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Any observation made in the course of this order is only for the limited purpose of considering this petition and shall not affect the Trial Court in disposing of the suit on merits.

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Sd/JUDGE

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List No.: 1 Sl No.: 5

Sri Narayana Pai T v. Ms Swarna Shenoy

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Sri Narayana Pai T v. Ms Swarna Shenoy

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