Sri. Alemada K Harsha Vs a M Monnaiah

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 23.08.2025 PASSED IN M.A.NO.1/2025 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT VIRAJPET AS PER ANNEXURE-A, DISMISSING THE APPEAL FILED BY THE PETITIONER AND CONFIRMING THE ORDER DATED 11.02.2025 ON I.A.NO.II PASSED IN O.S.NO.61/2024 ON THE FILE OF CIVIL JUDGE AND JMFC AT PONNAMPET, AND CONSEQUENTLY ALLOW THE APPEAL IN MA NO. 1/25 AS PER ANNX-K.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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Heard learned counsel for petitioners and learned counsel for respondents.

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The present petition is filed by the defendant Nos.1,2 and 4 being aggrieved by the impugned judgment dated 23.8.2025 passed in M.A. No.1/2025 on the file of the Senior Civil Judge & JMFC, Virajpet, dismissing the appeal filed by the

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3 - NC: 2025:KHC:43389 WP No. 28497 of 2025

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HC-KAR

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petitioners and confirming the order dated 11.2.2025 on I.A.

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No.II filed under Order - XXXIX Rules 1 and 2 of CPC in O.S. No.61/2024

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The respondent No.1 - plaintiff filed a suit in O.S. No.61/2024 for the following reliefs:

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a) To declare the suit-B schedule property is the easement of necessity to plaintiff and free usage for all purpose.

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b) Mandatory injunction directing the defendant to remove barbed wire fence and other impediments from the suit-B schedule property and allow plaintiff for free use of suit-B schedule property for free access,

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c) Pass an order of mandatory Injunction restraining the Defendants, their men, agents, servants or anybody else claiming under or through, with the peaceful possession and enjoyment of the Plaint-A and B schedule properties.

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d) Cost of the suit.

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e) With such other relief or reliefs which the Hon'ble court may deem fit under the circumstances of the case in the due course.

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HC-KAR

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At this stage, it is also useful to refer to the Schedule -

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B to the plaint, which reads as under:

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" Schedule B

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A 14 feet width and nearly 1000 feet length road connecting the plaintiff's establishments, turning left from Ponnampet-Kanoor-Kutta main road, passing through sy.no 24, sy.no 50/3, sy.no 50/1 and sy.no 51/1 of Mugatageri village, Hudikeri Hobli, Ponnampet taluk, Kodagu district.

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The suit-B schedule property is identified clearly as per the survey sketch produced herewith as Annexure-C."

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An application - I.A. No.II came to be filed under

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Order - XXXIX Rules 1 and 2 of CPC by the plaintiff before the trial Court seeking an order of Temporary Injunction restraining the defendants from blocking the peaceful usage and enjoyment of the suit 'B' schedule property and thereby direct the defendants to remove the impediments put along side and across the 'B' schedule road and enable the plaintiff for free vehicular movement in the 'B' schedule road.

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HC-KAR

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The said application filed by the plaintiff came to be allowed by the trial Court by an order dated 11.2.2025. The operative portion of the said order reads as under:

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"The interlocutory application No.II filed by the plaintiff under Order XXXIX Rule 1 and 2 of Civil Procedure Code is hereby allowed.

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By granting temporary mandatory injunction restrained the defendants, their men, agents, servants, or anybody else claiming under them from blocking the peaceful usage of suit 'B' schedule property and thereby directed the defendants to remove the impediments put both side and across the suit 'B' schedule road until the disposal of the suit."

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No order as to cost."

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Aggrieved by the order passed by the trial Court, the defendant Nos.1,2 and 4 approached the appellate Court in M.A. No.1/2025, which came to be dismissed and the order passed by the trial Court came to be confirmed. Aggrieved by the same, defendant Nos.1,2 and 4 are before this Court in the present writ petition.

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HC-KAR

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It is the contention of learned counsel for petitioners

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that the trial Court and the appellate Court have not considered the relevant facts and documents placed on record by the parties in the proper perspective. The trial Court by virtue of the interim order, granted prayer 1(b) in the plaint, which amounts to decreeing the suit in part, which is not permissible and the appellate Court erroneously confirmed the same. It is also contention of learned counsel that width of the road is not 14 feet as mentioned in the 'B' schedule. Both the Courts have ignored the Endorsement dated 13.3.2023 issued by the Tahsildar and the sketch/map produced at Annexures - F and G, which clarify that suit schedule 'B' property is not a public road measuring 14 feet in width as alleged by respondent No.1/plaintiff and in fact it is only a Government pathway measuring 8 feet in width. Therefore, it is the contention of learned counsel for petitioners that both the Courts have committed an error in holding that the petitioners have encroached upon the road in the 'B' schedule property without there being any material evidence. Therefore, learned counsel seeks to set aside the orders passed by the trial Court and the appellate Court.

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HC-KAR

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Learned counsel for respondent/plaintiff No.1 sought to justify the orders passed by the trial Court and the appellate Court.

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I have perused the records and given my thoughtful consideration to the arguments advanced by learned counsels for both parties.

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This Court is conscious of the fact that the Endorsement dated 13.3.2023 issued by the Tahasildar and the sketch/map produced before this Court vide Annexures - 'F' & 'G' were not placed before the trial Court or the appellate Court. Therefore, both the Courts are not aware of these documents before passing the impugned orders as they were not privy to the same. The orders passed by the trial Court and the Appellate court will not merit consideration. The trial Court by virtue of the interim order, granted prayer 1(b) of the plaint, which amounts to decreeing the suit in part, which is not permissible at the time of granting ad-interim order of Temporary Injunction and the appellate Court erroneously confirmed the same.

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HC-KAR

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In view of the above, without adverting to the merits

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of the matter, this Court deems it appropriate to set aside the orders passed by the trial Court and the appellate Court and direct the trial Court to consider the application filed under Order - XXXIX Rules 1 & 2 of the Code of Civil Procedure afresh by taking into consideration the Endorsement dated 13.3.2023 issued by the Tahsildar and the sketch/map produced before this Court vide Annexures - 'F' and 'G and other relevant material with regard to the width of the road and pass suitable orders in accordance with law after affording opportunity of hearing to both the parties.

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Learned counsel for petitioners submits that he will place the Endorsement dated 13.3.2023 issued by the Tahsildar and the sketch map (Annexures - F and G) and other relevant material with regard to the width of the road, before the trial Court. The said submission is placed on record.

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Accordingly, I pass the following:

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O R D E R

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i) The petition is allowed-in-part.

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HC-KAR

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ii) The order dated 23.8.2025 passed in M.A. No.1/2025 on the file of the Senior Civil Judge & JMFC, Virajpet, as well as the order dated 11.2.2025 on I.A. No.II in O.S. No.61/2024, are hereby set aside.

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iii) The trial Court is directed to consider the application filed under Order - XXXIX Rules 1 and 2 of CPC afresh by taking into consideration the Endorsement dated 13.3.2023 issued by the Tahsidlar and the sketch/map (vide Annexures-F and G) and any other relevant material with regard to width of the road that would be placed before the Court and pass orders in accordance with law within a reasonable time, after affording opportunity of hearing to both parties.

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iv) It is needless to mention that the petitioners/ defendants shall not block the 'B' schedule road and neither restrict the respondent/plaintiff from usage of the road. It is also made clear that the respondent/ plaintiff shall not precipitate the matter with regard to widening/broadening or removing the 'B' schedule road except usage of the road, till orders are passed on the said application by the trial Court.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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GSS List No.: 1 Sl No.: 21

Sri. Alemada K Harsha v. a M Monnaiah

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Sri. Alemada K Harsha v. a M Monnaiah

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