Sri.R.Puttaiah Vs Sri Uchith R Swamy

I.A.NO.1 IN OS.NO.3422/2021 ON THE FILE OF THE XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-12), CONCURRENT CHARGE OF XXXI ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-14), BENGALURU, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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ORAL JUDGMENT

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This Miscellaneous First Appeal is preferred under the provisions of Order XLIII Rule 1 (r) of the Code of Civil Procedure, 1908, (for short, "CPC") by the appellants, calling in question the correctness and the legality of the order dated 09.12.2022 passed by the Court of XXXI Additional City Civil and Session Judge, Bengaluru (CCH14), in O.S.No.3422/2021. By the said order, the learned trial Court allowed I.A.No. 1 filed by the respondent herein, who is the plaintiff in the suit, filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC,

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granting a temporary injunction restraining the appellants

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from putting up any construction on what was alleged to be a road situated on the western side of the suit schedule property. Aggrieved by the said order of temporary injunction, the present appeal has been filed.

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The genesis of the dispute lies on the claim of the respondent/plaintiff that, he is the absolute and lawful owner of the immovable property bearing Municipal No. 7, Ward No. 102, PID No. 17-22-7, situated at Magadi Main Road, Kamakshipalya, Bengaluru, measuring 40 feet from east to west and 90 feet from north to south. The said property, according to the respondent, houses a commercial building wherein a private educational institution, namely "St. Lawrence High School", is being run. It is the case of the respondent that, the property in question was gifted to him by his mother, Smt. M.Ramadevi under a registered Gift Deed dated 13.03.2019 and since then he has been in peaceful possession and enjoyment of the same.

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The controversy arose when the respondent

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alleged that, there exists a 20 feet wide road on the western side of the said property, running from north to south, which serves as the only ingress and egress for the

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staff, students, and parents visiting the school premises. The said road, according to the respondent, has been in continuous use and is the only viable access route to the school building.

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He further contended that, the appellants, who

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are the adjoining land owners on the western side, unlawfully attempted to block the said road by initiating construction of a compound wall, which would effectively result in the obstruction of the pathway and deny the school and its occupants any meaningful access.

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Upon institution of the suit seeking a permanent injunction, the respondent simultaneously filed I.A.No. 1 under Order XXXIX Rule 1 and 2 of CPC, seeking temporary injunction to restrain the appellants from proceeding with the construction activity that would affect

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the use and existence of the alleged road. The trial Court,

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upon perusal of the readings and documents, accepted the case of the respondent and allowed the said interlocutory application, thereby directing the appellants to maintain status quo in relation to the road allegedly situated on the western side of the suit property. The said order forms a subject matter of challenge in this appeal.

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In response to the suit as well as the application for temporary injunction, the appellants herein, who are the defendants before the trial Court, vehemently denied the existence of any such road on the western side

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of the respondent's property. It is their categorical contention that the western boundary of the respondent's property directly abuts their property, bearing Khaneshumari No. 316/10 (now BBMP No. 3), and there exists no intervening road or public pathway between the two properties. The appellants relied on series of title documents including original Release Deeds, Rectification Deeds, and partition instruments, all of which according to

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them clearly establish their lawful ownership of the adjacent property and negate the claim of the existence of any road. They asserted that the respondent's assertion of 20 feet road was a misleading and misrepresentation based on outdated and erroneous boundary descriptions in earlier documents, which were later rectified by way of a duly registered Rectification Deed executed by competent parties.

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Tracing the title to the property in question,

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appellants submitted that the lands were originally owned by one K. Ramaiah, who held vast agricultural lands in Survey Nos. 58 and 59. Upon his demise, the lands were partitioned amongst his legal heirs, including one R. Mahadevaiah, who was the grandfather of the respondent. Over the course of time, the property devolved upon the appellants through series of registered documents including Partition Deeds, Release Deeds, and Rectification Deeds, which were placed on record. The appellants specifically pointed out that, the earlier documents which

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refer to a road on the western side were corrected by Rectification Deed dated 08.12.2003 and thereafter, wherein it was clarified that the western boundary of the respondent's property was the property belonging to the appellants and not any road.

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In support of their contention, the appellants further placed reliance on a memorandum of understanding dated 27.09.2004 executed between the respondent's mother, Smt. M. Ramadevi and appellant No. 1. This document according to the appellants is a crucial piece of evidence which confirms the understanding

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between the parties with respect to the extent and enjoyment of the properties. In the said MOU, the respondent's mother had undertaken that, she would not interfere with her claim to the appellants land and would construct the school building without encroaching upon the

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land owned by the appellants. Significantly, the MOU makes no mention of any road existing on the western

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side, thereby casting serious doubt on the respondent's claim regarding the existence of the alleged road.

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The appellants further contended that, even

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assuming for a moment, without admitting, that a road did exist at some point in time, the same was never a public road, nor was it part of any approved plan. It was only a private pathway or a passage left open by the appellants for their own convenience, which could not be construed as a public or a school access road. Moreover, the respondent school building is accessible through the eastern side averting Kamakshipalya Main Road, which is a well developed road providing adequate and convenient access. This fact is not only evident from the photographs produced on record, but is also admitted by the respondent's mother in the MOU. Therefore, the plea of the respondent that the road on the western side is the only means of access stands falsified by their own admissions and documentary evidence.

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It was also submitted that the partition deed

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dated 25.01.2011 executed among the respondent's family members, which delineates the property shares and their respective boundaries, does not even mention the existence of any road on the western side. The said document, being a recent and registered instrument, ought to have carried such a recital had the road truly existed. The silence of this document in regard to the alleged road, according to the appellants, is a telling omission which further erodes the veracity of the respondent's claim.

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Upon a comprehensive consideration of the

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records, this Court finds that the trial Court has erred in arriving at a conclusion favourably to the respondent by placing undue influence and the boundaries mentioned in the Gift Deed dated 13.03.2019. The said deed, admittedly executed by the respondent’s mother in favour of the respondent, is based on an earlier Gift Deed which itself contained erroneous boundary descriptions that were

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later the subject of rectification. The learned trial Court has failed to appreciate that the Rectification Deeds have the same evidentiary way as the original registered instruments and are executed precisely to correct mistakes in earlier documents. Therefore, to disregard the Rectification Deeds produced by the appellants is a grave error which goes to the root of the matter.

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Furthermore, the trial Court's observation that the Rectification Deeds were inconsistent is not borne out by the records. On the contrary, the Rectification Deeds executed by various family members in the year 2003, 2004 and thereafter are consistent in identifying the western boundary of the respondent's property as averting the appellant's land and not any public road. The reliance by the trial Court on boundaries mentioned in the initial Gift Deeds, without appreciating the fact that those were superseded or clarified by registered rectification deeds is legally untenable.

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The aforesaid MOU dated 27.09.2004 further

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lends credence to the appellants' contention that there was no road existing between the two properties. The trial Court, while noticing this document, failed to draw the correct inference there from. A clear reading of the MOU reveals that the respondent's mother, being the prior title holder and a donor under the Gift Deed, had acknowledged the appellants ownership and possession of the adjoining land and had explicitly undertaken not to interfere with the same. Such an express acknowledgment militates against the respondent's

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present plea of a public access road intervening between the properties.

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The photographs produced on record by the appellants also demonstrate that the school building has an access road from the eastern side, facing Kamakshipalya Main Road, which is a broad and convenient road. The respondent has not established by any cogent evidence that the so called 20 feet road on the

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western side was the only access. The contention that denial of access through the alleged western road would result in hardship is, therefore, without any substance.

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The balance of convenience also tilts in favour of the appellants. The material on record suggests that the appellants have constructed a compound wall within their own land and have already developed the property by putting up commercial and residential structures. Any injunction restraining them from using or developing their own land would cause grave and irreparable harm to their rights, especially when the respondent has failed to establish a prima facie right over the disputed strip of land or show any actionable injury.

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In the light of the totality of the materials placed on record, I am of the opinion that the respondent has failed to establish a prima facie case or demonstrate that he would suffer irreparable injury in the absence of injunction. The trial Court's reliance on documents which were superseded are rectified by subsequent registered

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deeds, and it is failure to give due consideration to critical documents such as the Rectification Deeds and the MOU, has resulted in miscarriage of justice. Therefore, the order granting temporary injunction is not sustainable either in law or on facts.

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Accordingly, I pass the following:

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ORDER

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(i) The appeal is allowed .

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(ii) The impugned order dated 09.12.2022 passed in O.S.No. 3422/2021 by the XXXI Additional City Civil and Sessions Judge, Bengaluru (CCH-14), is hereby set aside.

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(iii) Consequently, I.A.No. 1, filed by the respondent/plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 of CPC stands dismissed.

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(iv) No orders as to cost.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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AM List No.: 1 Sl No.: 23

Sri.R.Puttaiah v. Sri Uchith R Swamy

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Sri.R.Puttaiah v. Sri Uchith R Swamy

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