Kubendrappa vs K.C. Lokeshwarappa

A.S. Bopanna, J.—The petitioners are before this Court assailing the order dated 24.07.2013 passed on IA. No. 2 in O.S. No. 218/2013 and the judgment dated 11.09.2014 passed in M.A. No. 27/2013 which are impugned at Annexures-F and G to the petition.

The petitioners herein are the defendants in the said suit. The suit in question is filed by the respondent seeking for the relief of declaration to the effect that there is prescriptive easement in AB cart track in ''B'' schedule property. In the said suit, the plaintiff also filed an application under Order 39 Rule 1 and 2 of CPC seeking grant of temporary injunction against prevention of use of cart track by the plaintiff. The Trial Court after taking note of the rival contentions has allowed the application in IA. No. 2 and granted the order of temporary injunction. The defendants claiming to be aggrieved by the same were before the Lower Appellate Court in M.A. No. 27/2013. The Lower Appellate Court by its judgment has dismissed the appeal, thereby confirming the order passed by the Trial Court. It is against the said order and judgment, the petitioners are before this Court.

The learned counsel for the petitioners while assailing the order and judgment would contend that the Courts below were not justified. It is his case, when admittedly, the schedule ''B'' property is shown to be the property belonging to the defendants and in that circumstance, when the plaintiff seeks to contend that there is a cart track in the property belonging to the defendants, an appropriate sketch as contemplated in law should have been produced.

It is his case that the Courts below have committed an error in relying only on the sketch produced along with the plaint and the photographs produced to indicate the cart track. It is therefore his contention that if at all there is a cart track existing, it is in the adjacent property and not in the property belonging to the defendants.

The respondent has entered caveat. The learned counsel representing the respondent seeks to sustain the order and the judgment passed by the Courts below.

In the light of the contentions put forth, I have perused the order passed by the Trial Court as also the judgment of Lower Appellate Court. What is necessary for consideration at this juncture is only the prima facie view to be taken keeping in view the nature of the relief prayed in the plaint and thereafter, to come to a conclusion as to whether the interim order as prayed was to be granted in the suit.

In that light, a perusal of the plaint would indicate that the plaint ''A'' and ''B'' schedule properties belonging to the plaintiff and the defendants are adjacent to each other. It is in that circumstance, the plaintiff contends that for enjoyment of the property belonging to the plaintiff in schedule A'', the cart track existing in schedule ''B'' property is being used and a right of easement has been acquired by the plaintiff.

Presently, since according to the plaintiff the defendants have prevented the use of cart track, the suit was filed. In that circumstance, when prima facie the question with regard to nature of relief pending consideration of the suit was to be considered by the Courts below, the Courts below have referred to the sketch in which the cart track is indicated. The photographs considered in juxtaposition with the sketch was also taken into consideration by the Courts below.

Though the learned counsel for the petitioners contends that the cart track if any is in the adjacent property, the fact that a cart track existed and the plaintiff should not be prevented from using the cart track during the pendency of the suit is evident. Therefore, in such circumstance, when both the Courts below have arrived at the prima facie conclusion and thereafter, on taking note of the balance of convenience has passed the order of injunction, this Court need not interfere with the same at this juncture.

The learned counsel for the petitioners at this juncture contends that taking advantage of the injunction the plaintiff is likely to interfere with the other portion of the property in ''B'' schedule owned by the defendants. The said contention at this juncture is without a foundation to that effect and if such interference is made, certainly, the defendants would have the right to seek for the appropriate relief in the pending suit. Therefore, on that account also, this Court need not interfere with the interim orders granted by the Courts below.

Accordingly, the writ petition stands disposed of.