Writ Petition No. 39697 of 2016 · The High Court
Case Details
- 1 - NC: 2025:KHC:1856 WP No. 39697 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 39697 OF 2016 (GM-CPC) BETWEEN: 1. SMT. KUPPU POOJARTHY D/O. LATE. SHESHI HENGSU, AGED ABOUT 50 YEARS 2. SMT. GIRIJA POOJARTHY D/O. LATE. BACCHI HENGSU, AGED ABOUT 51 YEARS, 3. SMT. GANGE POOJARTHY D/O. LATE. AKKAMMA HENGSU, AGED ABOUT 75 YEARS, ALL ARE R/AT MACHIMANE, KODAPADY, GIJJADY VILLAGE & POST, KUNDAPURA TALUK, UDUPI DISTRICT. …PETITIONERS
Legal Reasoning
8. This is a suit of the year 2011. There is no dispute with regard to the existence of the pathway and as rightly observed, the defendants have neither questioned the injunction nor the amendment. The grounds that are raised by the petitioners are purely on technical grounds and even the petitioners themselves admitted that there is a pathway and whether the plaintiffs have any right to use the pathway or not will be decided by the Court during the course of trial and at this stage, all these things cannot be considered. In the considered - 9 - NC: 2025:KHC:1856 WP No. 39697 of 2016 opinion of this Court, the order passed by the trial Court is a well considered one and no interference is called for. Hence, this Court is passing the following order:
Arguments
(BY SRI. SHRIHARI K., ADVOCATE) AND: 1. SMT. DURGAMMA POOJARTHY W/O. LATE. K. RAMA POOJARY, AGED ABOUT 80 YEARS, 2. SMT. MANJULA POOJARTHY D/O. LATE. K. RAMA POOJARY, AGED ABOUT 50 YEARS, 3. MAHALINGA POOJARY S/O. LATE. K. RAMA POOJARY, AGED ABOUT 47 YEARS, 4. SMT. SUSHEELA POOJARTHY Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1856 WP No. 39697 of 2016 D/O. LATE. K. RAMA POOJARY, AGED ABOUT 43 YEARS, 5. SMT. LAKSHMI POOJARTHY D/O. LATE. K. RAMA POOJARY, AGED ABOUT 41 YEARS, 6. SMT. JAYA POOJARTHY D/O. LATE. K. RAMA POOJARY, AGED ABOUT 39 YEARS, 7. SMT. HEMAVATHY POOJARTHY D/O. LATE. K. RAMA POOJARY, AGED ABOUT 37 YEARS, RESPONDENTS NO.1 TO 7 ARE CHILDREN OF LATE RAMA POOJARY ALL ARE R/AT HOSAMANE, KODAPADY GUJJADI VILLAGE & POST, KUNDAPURA TALUK, UDUPI DISTRICT. …RESPONDENTS (BY SRI.VIGNESHWARA S. SHASTRI, SENIOR COUNSEL FOR R1 TO R5 AND R7 SRI.YADUNANDAN N., FOR SRI.GURURAJ R., ADVOCATE FOR R6) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED: 18.07.2016 IN I.A.NO.V IN O.S.NO.154/2011 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, AT KUNDAPURA VIDE ANNEXURE-A. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI - 3 - NC: 2025:KHC:1856 WP No. 39697 of 2016 ORAL ORDER Aggrieved by the order passed in I.A.No.V in O.S.No.154/2011 dated 18.07.2016 by the Principal Civil Judge & JMFC, Kundapura, the petitioners/defendants are before this Court. 2. The respondents herein have filed the suit for declaration and permanent injunction. In that, I.A.No.V is filed seeking direction to the SHO of Gangoli - Trasi Police Station to enforce the order of temporary injunction passed by the trial Court as per order dated 20.11.2015. It is the case of the plaintiffs that in spite of an injunction order granted on 20.11.2015, the defendants have started interfering with the use of the pathway cum road of 4 feet width. It is the case of the plaintiffs that the defendants in violation of the order of the Court have forcefully dumped certain laterite stones over and across the suit pathway and caused obstruction on 10.12.2015 for which the plaintiffs have lodged a complaint on 11.12.2015 before the SHO of Gangoli-Trasi. Thereafter, the Police have warned the defendants and got the obstruction removed which was dumped on the suit pathway. It is stated that in spite of - 4 - NC: 2025:KHC:1856 WP No. 39697 of 2016 the same, repeatedly the defendants are interfering with the plaintiff's peaceful possession and usage of the pathway. 3. The defendants have filed their objections stating that the plaintiffs are praying for one relief in the application while the annexed affidavit reveals the intention of another contrary relief. The plaintiffs intend to form a new pathway over the suit 'B' schedule properties. According to the defendants, the order dated 20.11.2015 is in-executable and unenforceable as neither the order nor the I.A.No.II itself describes either the 'B' schedule property or the alleged pathway which the plaintiffs purport to be using. It is stated that no action can be taken in the light of the injunction that is granted unless the Commissioner’s report is obtained with the help of Surveyor. 4. The trial Court while allowing the application had observed that as could be seen from the original plaint, it goes to show that initially the plaintiff pleaded in the plaint that the pathway runs from West to East starting from Gangoli PWD road and by way of amendment, the same was amended as North to South. While passing the orders of I.A.No.II, the predecessor in office of the Court instead of mentioning as - 5 - NC: 2025:KHC:1856 WP No. 39697 of 2016 North to South had mentioned as West to East in the order. The trial Court observed that when the whole order passed on I.A.No.II is read in entirety coupled with the dispute between the parties, it goes to show that the disputed pathway is North to South and not West to East and the defendants are taking advantage of the typographical error crept in the order passed on I.A.No.II. The trial Court also observed that in the objection filed to the present I.A., the defendants have admitted about the existence of the pathway. The trial Court came to the conclusion that the temporary injunction is in force. The Court Commissioner's report goes to show that there is obstruction for the use of the pathway which is the subject matter of the suit. It is the case of the defendants that the plaintiffs have no right over the said pathway and it cannot be decided at this stage. Accordingly, the trial Court had allowed I.A.No.V by granting Police protection. Aggrieved thereby, the defendants are before this Court. 5. Learned counsel appearing for the petitioners/ defendants has drawn the attention of this Court to the schedule wherein it is shown that the 'B' schedule property is S.No.63-5 and the extent and the schedule is not given. It - 6 - NC: 2025:KHC:1856 WP No. 39697 of 2016 shows that the property is a full extent and it has been subdivided into 3 portions i.e., 0-39 acres, 0-33 acres and 0-34 acres as per the Partition deed. It is submitted that the Court has granted injunction in respect of the B schedule property wherein the schedule over the boundaries are not mentioned. Learned counsel submits that the order is not an executable order and as nothing has been mentioned in the same, he has not questioned the said order. Thereafter, an amendment is filed showing the schedule of the property, the boundaries of the said property and the Court has granted Police protection. Learned counsel submits that when the interim injunction that is granted is in respect of the property where the boundaries are not mentioned, Police protection cannot be granted for implementation of the said order. He submits that just because he has not questioned injunction order, that cannot be a reason for the Court to grant Police protection. He submits that the contentions raised on behalf of the defendants were not considered by the trial Court. 6. Learned counsel appearing for the respondents/ plaintiffs submits that in the order, it is clearly mentioned that with regard to the pathway and with regard to 'B' schedule, - 7 - NC: 2025:KHC:1856 WP No. 39697 of 2016 there was an amendment carried where it is shown that the pathway runs from West to East starting from Gangoli PWD road and by way of amendment, the same was amended as North to South and there was a typographical error in the order and even in the objections that is filed by the defendants, the defendants have accepted that there is a pathway. It is submitted that the whole suit is with regard to the usage of that pathway and he sought a declaration to that effect. Now, if the interim injunction that is granted is violated and if the plaintiffs are not permitted to use the said pathway, the whole purpose of filing the suit itself will be frustrated. He submits that the trial Court has rightly considered all these aspects and rightly granted the Police protection. 7. Having heard the learned counsels on either side, perused the entire material on record. The suit is filed seeking declaration that the plaintiffs and their family members have the right to use the suit pathway of a width of about 4 feet throughout the ABCD line running from West to East starting from Gangoli PWD road and passing over and across the 'B' schedule property of the defendants and also other lands as shown in the rough plaint eye sketch in order to reach the suit - 8 - NC: 2025:KHC:1856 WP No. 39697 of 2016 A schedule properties by the plaintiffs. In the original plaint and in the I.A., it is mentioned as West to East in the original unamended plaint, later it was amended as North to South by the time the I.A. for Police protection came to be filed. Neither the injunction that is granted nor the amendment that is ordered was questioned by the defendant. In the objection that is filed for the I.A. seeking Police protection, the defendants have also accepted that there is a pathway. According to the learned counsel for the respondents/plaintiffs, it is already worked out and according to the learned counsel for the petitioners/defendants initially some obstruction was removed. Thereafter, the said order was not executed.
Decision
ORDER i. Accordingly, the writ petition is dismissed. ii. As the suit is of the year 2011, the trial Court shall dispose off the matter as expeditiously as possible. iii. All I.As. in this writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 3