SRI. NANJUNDEGOWDA vs GOWRAMMA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 27 DAY OF OCTOBER, 2026
BEFORE
HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO. 9398 OF 2024 (GM-CPC)
BETWEEN:
1. SRI. NANJUNDEGOWDA
S/O KEMPEGOWDA,
AGED ABOUT 72 YEARS,
2. JAYALAKSHMAMMA
W/O NANJUNDEGOWDA,
AGED ABOUT 66 YEARS,
BOTH ARE RESIDENTS OF
BIDARAKERE VILLAGE,
BINDIGANAVILE HOBLI,
NAGAMANGALA TALUK,
MANDYA DISTRICT-571401
(SENIOR CITIZEN NOT CLAIMED)
…PETITIONERS
(BY SRI. RAJA.L., ADVOCATE)
AND:
1. GOWRAMMA
W/O LATE RAMEGOWDA,
AGED ABOUT 56 YEARS,
2. THIMMEGOWDA
S/O LATE RAMEGOWDA,
AGED ABOUT 42 YEARS,
3. PRAKASH
S/O LATE RAMEGOWDA,
AGED ABOUT 40 YEARS,
ALL ARE R/AT
Digitally signed
by JAI JYOTHI J
Location: HIGH
COURT OF
KARNATAKA
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BIDARAKERE VILLAGE,
BINDIGANAVILE HOBLI,
NAGAMANGALA TALUK,
MANDYA DISTRICT-571 401.
…RESPONDENTS
(BY SRI. HAREESH KUMAR.N.T., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION
OF INDIA, PRAYING TO SET ASIDE THE ORDER PASSED BY THE
ADDL. CIVIL JUDGE AND JMFC AT NAGAMANAGALA IN IA NO.
IV ORDER DATED 05/04/2019, IN OS NO.188/2018 VIDE
ANNEXURE-E AND ALSO SET ASIDE THE ORDER PASSED BY
THE ADDL. SENIOR CIVIL JUDGE AND JMFC, NAGAMANGALA IN
IA NO. 4 IN MA NO. 8/2019 DATED 04/03/2024, VIDE
ANNEXURE-J.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING IN
‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORAL ORDER
1. The present petition has been filed seeking to
challenge two orders, the first dated 05.04.2019 passed
by the Addl. Civil Judge & JMFC, Nagamangala dismissing
an application I.A.IV filed under Order 39 Rules 1 and 2 of
the CPC (hereinafter referred to as the ‘Trial Court order’)
as well as the order dated 04.03.2024 passed by the Addl.
Senior Civil Judge & JMFC, Nagamangala in M.A.No.8/2019
(hereinafter referred to as the ‘Appellate Court order’)
confirming the said order of the Trial Court.
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2. An application I.A.No.IV was filed by the petitioner
No.1/defendant No.1 seeking the relief of injunction
restraining the plaintiffs from obstructing the defendants
from using the road attached to their main door at I-
Schedule property, which application came to be rejected
both by the Trial Court as well as the Appellate Court. The
challenge in the petition is to both orders.
3. Learned counsel for the petitioners submits that the
petitioners are the defendants in the suit. He submits that
the respondents/plaintiffs are blocking the road by putting
bricks. He submits that the parties should just merely be
directed to maintain status quo in the matter, as has been
directed by this Court by its order dated 10.04.2024.
4. Learned counsel for the respondents/plaintiffs on the
other hand, seeks to rely upon the Trial Court as well as
the Appellate Court orders to submit that they do not
suffer from any infirmity. He submits that the suit has
been filed seeking easementary rights and as has been
rightly pointed out by the Trial court and the Appellate
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Court, the written statement itself contradicts the
applications filed by the petitioners/defendants.
5. An examination of the record reflects that a suit has
been filed seeking for a decree of declaration of easement
rights of the plaintiffs to go to the schedule ‘K’ property
through free way of Schedule ‘I’ and ‘J’ properties and for
consequential relief of permanent injunction in respect of
the schedule ‘I’, ‘J’ and ‘K’ properties. The prayers in the
plaint and the Schedule properties are set out below:
“Wherefore, the plaintiffs pray that, the Hon'ble court
may be pleased to pass judgment and decree in their
favor and against the defendants for:
A] For declaration of easement right of the plaintiffs to
go to plaintiff's site (schedule 'K' property) through free
way i.e., schedule 'I' and 'J' properties
B] For consequential relief of permanent injunction for
restraining the defendants or their agents, servants,
henchmen or anybody claiming under them from not to
interfere with the plaintiff's peaceful possession and
enjoyment and usage of the schedule ‘I’, ‘J’ and ‘K’
properties as shown in the rough sketch.
C) For recovery of Court cost and such other relief as the
Hon'ble Court deems fit to grant under the circumstance
of the case, in the interest of justice and equity.
A, B, C D Schedule Property
The old Sy.No.183/11B, total extent of 0.14 guntas of
land has been alienated from agricultural purpose to
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non-agriculture vides its property bearing No.ALN
153/83-84
Bounded on:
East: Javaregowda, Amasegowda &
Puttegowda’s site & house
West: Land belongs to Narayanachar
North: Land belongs to Puttaswamygowda
South: Gramatana’s property
‘E’ Schedule Property
The property measuring East-West: 23 yard, North-
South 21 yards (four hundred eighty three square yards)
st
which was purchased by the 1 defendant from the
st
husband of the 1 plaintiff by name Ramegowda and his
brother Honnegowda on 24.01.1985 bounded on,
East: House of Javaregowda
West: Vacant site of Narayanachari
North: Vacant site of Honnegowda
South: Vacant site of Honnegowda
'I' Schedule Property
The said place is belongs to plaintiffs and it is now road
margin which is left by the plaintiffs to use the said road
to go to their vacant site i.e., schedule 'K' property,
bounded on:
East: House of Javaregowda and Amasegowda
West: 1st plaintiff's husband Ramegowda's and his
Brother Honnegowda's vacant site & defendant
house
North: 10 feet cement road
South: schedule 'J' (plaintiff's) property & cattle
shed of Defendants
'J' Schedule Property
The said place is belongs to plaintiffs and it is now road
margin which is left by the plaintiffs to use the said road
to go to their vacant site i.e., schedule 'K' property,
bounded on;
East: schedule 'I' (plaintiff's) property
West: Vacant site of plaintiff i.e.
'K' Schedule Property
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North: Property of defendants
South: Defendant’s Cattle shed
'K' Schedule Property
The vacant site of the plaintiffs measuring 0.02
guntas which is including the part and parcel of
0.14 guntas alienated land, bounded on;
East: The road left by the plaintiffs('J' schedule)
and Defendant' house
West: Property of Narayanachar
North: Defendant's house
South: House belongs to Narayanachar”
[Emphasis Supplied]
6. A written statement was filed by the
petitioners/defendants wherein the petitioners/defendants
have set out that the respondents/plaintiffs are falsely
claiming the defendants’ property as ‘I’ schedule property
in the rough sketch but there is no road towards the
Eastern side of the properties. It is further stated therein
that the Southern portion of the road at the entrance
towards east side portion the Property has been left for
the purpose of road. In addition, it is stated that there is
no existence of road on ‘I’ and ‘J’ schedule properties. The
relevant extract of the written statement is below:
“4) The allegations made in plaint para-3 of the plaintiffs
that there is a 10 feet width cement road which is
mentioned as "G" in the rough sketch has been provided
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in the middle of the 0.14 guntas and that road runs from
East-West and it divided the entire 0-14 guntas of
property in two portion which are northern side and
southern side portion of the said land is absolutely false
and untenable. It is a fact that there is a cement
road is formed by the village Grama Panchayath in
the 0-14 guntas of land from East to West on the
Northern side of the defendants properties. The
further allegation of the plaintiffs that Ramegowda and
his brother Honnegowda 'were reserved some portion of
property which is mentioned "H" in the rough sketch lies
in between 10 feet cement road and the defendants
house to use as road to the defendants to go to their
house is partly correct. It is a fact that the plaintiffs
have reserved the Eastern portion of the property
shown in "H" schedule for the ingress and aggress
to the property of defendants. Further these
defendants are also reserved some portion of property to
the Eastern side of their properties. But the plaintiffs
are falsely claiming the said defendants property
as "I" Schedule property in the rough sketch.
There is no road towards the Eastern side of the
properties belongs to defendants. But these
defendants are orally permitting the plaintiffs to
ingress and egress on the Eastern side of the
properties of the defendants to reach the Grama
Tana existing towards Southern side. The plaintiffs
have manner of any right, title, muchless possession and
enjoyment in or over the property shown as "I" schedule
in the rough sketch. The further allegations in the same
para that towards southern portion of the road at the
entrance towards east side portion the property has been
left for the purpose of road which is mention as "I" in the
rough sketch which is runs from north-south up to the
cattle shed of the defendants and further the said road
takes right side curve and moved from eastern side to
western side in between the defendants house and cattle
shed which is mentioned as "J" in the rough sketch and
further it takes curve towards east and runs upto the
western side of vacant site of plaintiffs which is situated
in the southern corner to the entire 0-14 guntas of land
and the said vacant site is measuring 2 guntas as
mentioned "K" in the rough sketch are all absolutely
created and concocted false story of the plaintiff to make
a wrong full gain only. The further allegations of the
plaintiffs that particular way / space left for the
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purpose of egress and ingress at the eastern edge
and the way which was run from east-west after
taking curve towards southern direction is abutting
to cattle shed of the defendants towards its
northern side and also abutting to schedule vacant
site are all totally false and untenable. There is no
any road was or is existing in the entire 0-14
guntas of land which is shown as "I" and "J" in the
rough sketch. The plaintiffs have drawn the enclosed
rough sketch according to their whims and fancy. As
such these defendants does not admit the
existence of "I" and "J" portion of lands shown in
the alleged rough sketch. The plaintiffs have no
manner of any right, title, possession and
enjoyment in or over the "I" and "J" portion of
lands which is purchased properties of these
defendants. As such plaintiffs are put to strict proof of
the said allegations.
xxx xxx xxx
7) The allegations made in plaint para-6 of the plaint that
the defendants have no right to create any obstruction to
their esamantory road in which the plaintiffs are enjoying
from last 33 years and further they have requested the
defendants on several occasions not to put any green
fence on the said way but the defendants have refused
their request and during the last week of July -2018 give
unnecessary trouble to the plaintiffs by obstructing their
right of way for better enjoyment of their "K" schedule
property are all absolutely false claims and untenable. As
afore said when there is no existence of such road
"I" and "J" schedule in 0-14 guntas of land, they
have no easemantory rights of enjoyment of the
same from last 33 years.”
[Emphasis Supplied]
7. An examination of the application I.A.No.IV also
reflects that the petitioners/defendants have taken a
slightly different stand in their application as can be seen
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from the relevant extract of the application and affidavit,
which is set out below:
“APPLICATION UNDER ORDER 39 RULE 1 & 2 R/w
Sec.151 of C.P.C.
For the reasons set out in the accompanying affidavit,
the Defendants/Applicants prays that this Hon’ble Court
may be pleased to restrain the plaintiffs, their
agents, servants and anybody claiming under them
from obstructing the defendants for using the road
attached to their main door at ‘I’ schedule road
property shown in the rough sketch attached to the
plaint, in any manner, by removing the stone
boulders poured by plaintiffs, till disposal of the
above suit, as the same is quite essential in the
interest of justice and equity….”
“AFFIDAVIT
xxx xxx xxx
4. I submits that, as stated in our written statement, I
had purchased a site property jointly from one
Ramegowda, (the husband of plaintiff-1 and father of
plaintiffs-2 & 3 and his brother Honnegowda sons of late
Melegowda @ Karigowda of Bidarakere village for
valuable consideration under a Registered sale deed
dated 24/1/1985. The said property is measuring East-
West:- 23 yards and North-South:- 21 yards bounded by
East: House property of Javaregowda, West: site of
Narayanachari, North and South site of Honnegowda.
Attached to this property to the Eastern side the 2nd
defendant has purchased a site property jointly from
Honnegowda son of late Melegowda @ Karigowda of
Bidarakere village for valuable consideration under a
Registered sale deed dated 20-2-1998. The said property
is measuring East-West:- 34 feet, and North-South:- 44
feet, bounded by East: Road alla site property _ of
Amasegowda,, West: site of Ramegowda, North: site
property of Nanjundegowda and South: Gramathana
property. Both these properties are got alienation from
their vendors and included in the Bidarakere gramathan.
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By virtue of our right, title, possession and enjoyment of
the above properties we the defendants became absolute
owners and we are in possession and enjoyment in the
above said properties without any interruption till to-day.
I have built a residential house in my property by
obtaining a valid license from the Grama
Panchayath on 6-10-1988 and defendant-2 has
built a cattle shed in her property to the daring our
cattles Ramegowda and Honnegowda have left a
road margin which is shown in Towards the
Eastern side of our both the properties our vendors
namely "I" schedule of the plain sketch, in
between the house of Javaregowda and our
properties for the better enjoyment of the site
properties sold to us. From 1985 we the defendants
are making use of the above said road schedule property
for ingress and agress to our residence and to the cattle
shed. The main door of our residential house is existing
towards the road "I" schedule property. The plaintiffs
have clearly and validly admitted the "I" schedule
road margin in their plaint and also the rough
sketch furnished along with the plaint. Except the
above "I" schedule road, we the defendants have
no other alternative road to reach our residence
and cattle shed.
5. I further submits that, the plaintiff has filed the
above suit against us with a ulterior motive to get a road
margin in between the properties of defendants-1 & 2.
All the efforts in the locality done by the plaintiffs have
failed and as such, they have filed the above suit against
us seeking the relief of declaration of a road in between
our properties under easementary rights. As afore said,
we the defendants are living peacefully from 1985 till
today by enjoying our respective properties without any
interruption. But, now the plaintiffs are making a
demand of leaving a road in between our
properties as per "J" of schedule marked in the
rough sketch, leads us to struggle, and in case of
any road is formed in between our properties the
very purpose of purchasing of our properties will
be defeated and the value of our properties will be
decreased against to our will and wish.
6. I further submits that, the plaintiffs even after
filing of the above suit, are making one or the other
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pinpricks to us by one or the other way. In fact, last
week the plaintiffs have forcefully blocked our main door
by pouring 8-10 loads of stone boulders illegally on the
"I" road property which was using by us to ingress and
egress our residential house. This act of the plaintiffs is a
public nuisance and illegally force us from not to use or
enjoy our properties purchased by us. The very illegal act
of the plaintiffs is to force us to mend according to their
will and wish and to allow them to form an illegal road in
between our properties as demanded by them in "J" of
the schedule sketch. By the illegal act of the plaintiffs
we the defendants are forcefully restraining to
making use the road margin situated to eastern
side of our main door of the residential house.
Hence, it is just and necessary to restrain the
plaintiffs from blocking the "P" schedule road
margin from our better enjoyment of our
properties.”
[Emphasis Supplied]
8. This is also pointed out in the Objections filed to the
application, the relevant portion of which reads thus:
“4. The plaintiff No.2 respectfully submits that, the
plaintiffs have filed the suit for declaration and
mandatory injunction and also another relief of claiming
the easementary right in respect of the suit schedule
properties.
5. The plaintiff No.2 respectfully submits that, the very
application filed by the defendant No.1 i.e., under Order
XXXIX Rule 1 and 2 is not absolutely maintainable for the
reasons that, the order of the said provision is clearly
shows that, "the Court may by order grant a temporary
injunction to restrain such act, or make such other order
for the purpose of staying and preventing the wasting,
damaging, alienation, sale, removal or disposition of the
property". In that circumstances, the defendant
No.1 should not seeking the relief as per his
application that "restrain the plaintiffs, their
agents, servants or anybody claiming under them
from obstructing the defendants for using the road
attached to their main door at “1” schedule road
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property shown in the rough sketch attached to the
plaint, in any manner, by removing the stone
boulders poured by plaintiffs.
6. The plaintiff No.2 respectfully submits that, the
defendant No.1 is himself admitted in his very
application that 'by removing the stone boulders
poured by plaintiffs in the suit "I" schedule
property as shown in the rough sketch', hence, the
defendants have approached this Hon'ble Court by filing
a fresh suit for mandatory injunction by paying the
proper Court fee only. But, he should not seeking for the
same relief through that application.
[Emphasis Supplied]
9. The learned trial Court after examining the pleadings,
has held that the suit of the respondents/plaintiffs is for
declaration of easement rights and permanent injunction
to restrain petitioners/defendants from using Schedule ‘I’,
‘J’ and ‘K’ properties. The prayer in I.A.IV is seeking to
restrain the respondents/plaintiffs from obstructing the
petitioners/defendants from using the road attached to
their main door at I-Schedule property. However, the
petitioners/defendants have in their written statement
denied the existence of such road. The learned Appellate
Court has also pointed out that the defence taken by the
petitioners/defendants is completely contrary to its
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pleadings in the application. Thus, it is held that whether
or not the road is in existence or not, a right of easement
of necessity will only come out after a full-fledged trial.
The relevant extract of the Impugned Order is set out
below:
“14. In this case the plaintiff claiming that "I" and "J"
road for access his property "K" shown in the rough
sketch. As per the plaint averments plaintiffs are
specifically stated about the existence of the "I" and "J"
road. The defendants filed their written statement
and specifically denied the plaint averments as
well as rough sketch of the plaintiffs. At the same
time the defendants did not produced any rough
sketch about to show the present existence of the
properties. The defendants are denied whole plaint
averments and also denied the existence of the "I" and
"I" road but admitted the existence of the "G" road
shown in the rough sketch. For better understanding I
extract the written statement averments in para No.8
last 6th line as follows:
"But there is no "I" and "J" road existing in the
schedule properties as shown in the rough
sketch. The plaintiff with ulterior motive and
also to knock of the valuable properties falsely
claiming that there is road in "I" and "J"
property. Further in last 3 lines stating that the
claim of the plaintiff as a road shown in "I" and
"J" schedule properties mentioned in the rough
sketch is illegal and no merits. As such the
plaintiff have not entitled for any relief sought by
them".
15. This specific defense took by the defendants
and completely denying of the existence of "I" and
"J" road in the rough sketch. But the defendants
themselves sought for the injunction in respect of
the "I" road mentioned in the rough sketch filed by
the plaintiffs. When the defendant denied the existence
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of the road he cannot having any right sought for the
injunction which was denied by himself. The I.A. No.IV
filed by the defendants is contrary to his pleadings and
defense took in the written statement. Law is not
permissible to sought a relief contrary to their own
pleadings. Unfortunately the defendants denied the
existence of the "I" and "J" road in the written statement
but claiming injunction against to the plaintiffs on relying
the same rough sketch produced by the plaintiffs which
was denied by the defendants in the written statement.
The defendants did not approached this court as well as
trial court with clean hand.
16. In this case, whether road is existence or not
and there is right of easement of necessity come
out after full pledged of trial. In this stage the
defendants sought for the relief is contrary to their
own pleadings is not acceptable. The learned trial
court rightly observing the available material on
record on prima-facie and arrive the conclusion
and dismissed the I.A. No.IV, there is no
interference arise. Hence, I answer point No.1 in the
Negative.”
[Emphasis Supplied]
10. Given the discussions aforegoing and the pleadings
of the petitioners/defendants, this Court agrees with the
opinion expressed in the Impugned Order that existence of
road can be ascertained only after a trial is conducted in
the matter. The petition is accordingly dismissed. All
pending applications stand closed.
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11. The petitioners/defendants are however at liberty to
take appropriate steps, in accordance with law, for
redressal of their grievance before the Trial Court.
Digitally signed by TARA
VITASTA GANJU
Location: HIGH COURT OF
KARNATAKA
(TARA VITASTA GANJU)
JUDGE
KS
List No.: 1 Sl No.: 46
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