Disposed

Sri Joseph Karkada v. Ubmc Trust Association of

Karnataka HC18 Jun 2024WP/4165/2017

Case brief

AI extract

What is this about?

Plaintiff in a 2014 suit sought declaration and injunction regarding use of a mud road cum passage; trial court granted interim injunction but the Appellate Court set it aside for lack of material. The High Court upheld the appellate order and directed disposal of the suit within six months.

What did the court decide?

Writ petition disposed of; trial court directed to dispose of O.S.No.202/2014 within six months; all pending IAs closed.

Sri Joseph Karkada Vs Ubmc Trust Association of — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:21641 WP No. 4165 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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WRIT PETITION NO. 4165 OF 2017 (GM-CPC)

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BETWEEN:

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SRI. JOSEPH KARKADA, S/O LATE SRI. EMMU KARKADA, AGED ABOUT 80 YEARS, DOOR NO.5-4-64. NEAR UBMC JUBILEE CHURCH. MISSION COMPOUND, UDUPI - 576 101, SINCE DECEASED.

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1(A). SHALINI P. KARKADA, AGED ABOUT 72 YEARS, W/O LATE JOSEPH KARKADA,

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1(B). SAMUEL SADANANDA KARKADA, AGED ABOUT 53 YEARS,

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1(C). GLADSON DAYANANDA KARKADA, AGED ABOUT 51 YEARS,

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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1(D). JANET ROSE KARKADA, AGED ABOUT 49 YEARS,

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1(E). KIRAN VATSALA KARKADA, AGED ABOUT 48 YEARS,

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1(F). JOHNSON SARVOTHAMA KARKADA, AGED ABOUT 46 YEARS, R/AT D.NO.305, 3^RD FLOOR, SAI RADHA ASHRAYA, KOLAMBE, UDUPI TALUK.

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1(G). DAVID RAJIVA KARKADA, AGED ABOUT 44 YEARS,

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1(H). SHIRMANI RITA AMANNA, AGED ABOUT 41 YEARS,

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2 - NC: 2024:KHC:21641 WP No. 4165 of 2017

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1(I). GODWIN JAYAKUMAR KARKADA, AGED ABOUT 39 YEARS,

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1(J). NOEL PRASHANATH KARKADA, AGED ABOUT 36 YEARS, NO.2 TO 10 ARE CHILDREN OF LATE SRI. JOSEPH KARKADA, AND NO.1 TO 5, 7 TO 10 ARE RESIDING AT D.NO. 5-4-64, BEHIND UBM JUBILEE CHURCH, MISSION COMPOUND, UDUPI.

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…PETITIONERS

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(BY SRI. CHANDRANATH ARIGA, ADVOCATE)

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AND:

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UBMC TRUST ASSOCIATION OF S.K. & COORG, BY ITS CHAIRMAN, SRI. PRAKASH SIMONS, AGED ABOUT 48 YEARS, UBMC JUBILEE CHURCH, MISSION COMPOUND, UDUPI - 576 101.

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…RESPONDENT

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(BY SRI. VISHWANATH R. HEGDE, ADVOCATE)

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THIS WRIT PETITION FILED IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS OF M.A.NO.16/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI AND ETC.,

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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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ORDER

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The plaintiff in O.S.No.202/2014 is before this Court aggrieved by the order passed in M.A.No.16/2014 dated 02.11.2016 by the Additional Senior Civil Judge, Udupi.

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NC: 2024:KHC:21641 WP No. 4165 of 2017

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The facts of the case are the petitioner herein is the plaintiff in the suit. He has filed the suit seeking declaration that the plaintiff and his men are entitled to use mud road cum passage of the width of 24 feet and 406 feet in length running in the lands in survey No.88/26, 88/33 and 88/38 of Badagubettu village, Udupi taluk upto the plaint 'A' Schedule property and also seeking the relief of permanent injunction restraining the defendant, its men, servants, agents and all persons claiming under it from blocking, obstructing the suit passage cum road of the width of 24 feet and 406 feet in length existing in the lands in the said survey numbers. He also filed I.A.No.II seeking temporary injunction against the defendant from blocking, obstructing the passage cum road or interfering with the free use of the said road, till the disposal of the suit. The said application came to be allowed by order dated 30.06.2014.

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The defendant had carried the same in MA.No.16/2014, the Appellate Court had set aside the said order passed by the Court below by allowing the said M.A. while allowing the said M.A. the Court has observed that the observations made by the trial Court that there is existence of

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NC: 2024:KHC:21641 WP No. 4165 of 2017

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mud road is not proper appreciation of either documents or from the pleadings, the plaintiff has pleaded that the suit property is measuring 7.5 meters wide as per plaint sketch or as pleaded in plaint being measuring 24 feet wide and 406 feet is in existence in any revenue or records of the municipal authority has not been placed. Under such circumstances, cognizance as to existence of road, mud road as pleaded by plaintiff is actually in existence of width pleaded or depicted in sketch cannot be considered. Hence, the order passed by the Court below granting injunction is set aside.

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Learned counsel appearing for the petitioner-plaintiff submits that he is a tenant of the defendant-trust and with regard to the said tenancy, another suit is pending, which is filed by the defendant, and the same is pending adjudication before the Court below. Learned counsel submits that when the defendant blocked the access of the petitioner and when he was trying to erect a gate, he came before the Court seeking injunction. The Court below had rightly granted injunction, considering all the relevant aspects. The Appellate Court without considering the inconvenience that is to be caused to the plaintiff had set aside the order passed by the Court

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5 - NC: 2024:KHC:21641 WP No. 4165 of 2017

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below. It is submitted that the suit is of the year 2014, there may be a direction to the Court below to decide the case as expeditiously as possible. It is also submitted that as of now, the construction is completed, there is no obstruction on the road and the plaintiff is able to use the road.

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Learned counsel appearing for the defendant submits that the plaintiff without any basis or sufficient material had approached the Court and the Court below without any evidence and without any basis had granted injunction. The Appellate Court had rightly considered all the aspects and set aside the order passed by the Court below and allowed M.A.No.16/2014 filed by him. It is submitted that the plaintiff has failed to discharge his burden atleast to prima facie satisfy the Court that there is a road in existence and he has access to the same and defendant is obstructing him more on assumptions and presumptions the Court below had granted an order, which was rightly vacated by the Appellate Court.

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He submits that infact, the construction was completed four years back. There is a road on the other side which the plaintiff can have access to reach the plaintiff schedule property

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NC: 2024:KHC:21641 WP No. 4165 of 2017

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and this land belongs to the trust and without filing any documents about the tendency and other aspects, the Court below that is the trial Court has granted injunction which is arbitrary and illegal.

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Having heard the counsels on either side, perused the material on record. The writ petition is pending from 2017 in a suit of 2014. It is submitted that initially this Court granted an order of status quo on 21.02.2017 and it was extended on 28.02.2017. Thereafter, the writ petition was dismissed for non-prosecution on 10.10.2019. Later, it restored on 25.11.2019. It is submitted that thereafter the status quo order was not extended.

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This Court has perused the material on record. It is so unfortunate that simple issues with regard to an obstruction on the road the suit is filed and the suit is pending from the year 2014. According to the plaintiff, it is a public road. According to the defendant, it is a private land. This particular land comes under the Udupi Municipality and it can be simply decided whether it is a public road or a private land. Initially injunction is granted against that an appeal is filed, later the present writ

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petition is filed before this Court and conveniently, for 10 long years, the proceedings are pending. When a suit is filed seeking a particular relief or a particular interim relief, the burden lies on the plaintiff to prove that he is entitled to such a relief. The Court below has granted an injunction and the Appellate Court reversed the same.

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This Court has perused the order passed by the Appellate Court. In the considered opinion of this Court, the order that is passed by the Appellate Court is a well-considered one for the reason that the plaintiff had not placed necessary materials that are required to grant an order of injunction when the plaintiff says that there is a road and he has to have access to it. He has to place material before the Court that it is a road, unfortunately no such material is placed. Now the fact remains is that by virtue of an interim order that is granted and according to the petitioner, there is no further obstruction from the respondent. Even then, according to the counsel for the defendant, he had completed the construction about 4 years back.

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NC: 2024:KHC:21641 WP No. 4165 of 2017

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In that view of the mater, the writ petition is disposed of directing the Court below to dispose of the pending suit, which is of the year 2014, within a period of 6 months from the date of receipt of the copy of this order.

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Any of the observations made by this Court above or for the purpose of adjudicating this application the Court below shall not construe them as an expression of this Court.

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All pending IAs if any shall stand closed.

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SD/JUDGE

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CPN CT: BHK

Sri Joseph Karkada v. Ubmc Trust Association of

Case brief

What is this about?

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Sri Joseph Karkada v. Ubmc Trust Association of

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