B.S. Patil, J@mdashAgainst the rejection of the application filed under Order XXXIX Rules 1 & 2 CPC, MFA No. 5660/2015 has been filed and against the order passed on the application filed under Order XXXIX Rule 4 CPC vacating the ex parte order of temporary injunction, MFA No. 5661/2015 has been filed.
2. Plaintiffs have filed O.S. No. 2760/2015 seeking a decree of permanent injunction restraining the defendant from interfering or blocking the usage of the suit schedule road measuring 40 feet in width and 660 feet in length by the plaintiffs. Alternatively, relief of declaration has been sought to the effect that plaintiffs have easementary rights to use the schedule road to reach their property by way of easement of prescription.
3. The case of the plaintiffs is that they are the absolute owners in possession of lands bearing Sy. No. 31/1 measuring 1 acre 1.5 guntas and Sy. No. 31/4 measuring 23.35 guntas situated at Ibbalur Village, Begur Hobli, Bengaluru South Taluk. To the East of the plaintiffs'' property, lands bearing Sy. No. 29 measuring 3 acre 31 guntas, Sy. No. 30 measuring 1 acre 11 guntas and Sy. No. 34/2 measuring 2 guntas, totally measuring 5 acres 30 guntas are situated. These lands originally belonged to one Gowramma. She entered into a joint Development Agreement with M/s. Corporate Leisure and Property Developments (P) Limited for development of the property by putting up multistoried residential building by name ''Genesis''. They have indeed constructed a multistoried residential building and a common road has been formed between Sy. No. 29 and Sy. No. 30 to reach 60 feet public road.
4. According to the plaintiff, they have also got their lands converted; plaintiffs were using the above mentioned suit schedule road from the date of purchase of their lands to reach the 60 feet public road; the said road was the only road available to them to reach the public road, inasmuch as except the said road, there was no other alternative road to reach plaintiffs'' property; during March, 2015 defendant tried to block the suit schedule road by putting up construction of a compound wall; plaintiffs approached the jurisdictional Police to stop the work, but the Police refused to receive the complaint stating that dispute was of civil nature, therefore, plaintiffs were constrained to approach the Court.
5. Along with the plaint, they filed an application seeking temporary injunction reiterating the averments and contentions made in the plaint. Defendant - Genesis Apartment filed written statement. It has contended that Genesis residential apartments comprised of two blocks constructed over land bearing Sy. No. 29, 30 and 34/2, measuring in all 5 acres 30 guntas; the road formed in between these two blocks was an internal road intended for the internal and exclusive use of the owners/occupants of the apartments in the said blocks; the developer had constructed a compound wall and therefore, there was no access to any land through the open area; if the open area which had been transferred to different purchasers of apartments as units of proportionate undivided share were to be open for public use, owners/occupants of the apartments would be put to severe loss and hardship and that there would be security concern and vehicular obstruction for the apartment owners.
6. By way of additional written statement, defendant has contended that plaintiffs had separate access along the Eastern boundary of the land in Sy. No. 31/4 and therefore, they will not be put to any hardship or injury, if the suit was dismissed.
7. I have heard Sri Jayakumar S. Patil, learned Senior Counsel appearing for the plaintiffs - appellants and Sri Shyam Prasad, learned Senior Counsel appearing for the defendant -respondent.
8. The main contention urged by the learned counsel for the appellants is that the Court below has committed serious error in proceeding on the basis that there was in existence a road towards the Eastern side of the plaintiffs'' property. He urges that neither any document, nor the photographs produced disclose existence of such a road. He points out that the Court below has been carried away by the fact that the road had been described as an internal road and that the plaintiffs had demolished a portion of the compound wall to gain access to their property. He submits that regardless of whether it is an internal road, as the plaintiffs'' property does not have any access through any other road except the road formed by the defendant and as the plaintiffs cannot develop their lands without gaining access to it through the suit schedule road, defendant cannot deprive the plaintiffs of using and enjoying the said road to gain access to their lands.
9. Sri Shyam Prasad, learned Senior Counsel appearing for the defendant contends that conduct of the plaintiffs in breaking open the compound and fixing the gate disentitled them from seeking any equitable order of temporary injunction; prima facie, there is no prescriptive easementary right as claimed by the plaintiffs. It is urged by the defendant that sanctioned plan disclosed that it was an internal access road; to establish prescriptive right of easement in terms of Section 15 of the Easements Act, 1882 uninterrupted usage must be shown for 20 years; without specific pleading regarding commencement of easement which is necessary as per the judgment of the Apex Court in the case of
10. He also points out that balance of convenience lies in favour of the defendant because more than 300 apartments have come up and owners of apartments, their children and their security would be jeopardised if the internal road is opened to others making it a public road. He has placed reliance on some of the photographs to show that plaintiffs have access to their property through an alternative road.
11. I have carefully considered the entire materials on record. Considerations that have weighed in the mind of the Court below for rejecting the application filed seeking temporary injunction and for vacating the ex parte order of temporary injunction are:
"a) that in the joint Development Agreement, there was no mention of any such road available for the plaintiffs;
b) photographs taken on 04.08.2015 disclosed that compound wall in between Genesis Apartments and the property of the plaintiffs had been found removed;
c) towards Eastern side of the defendant''s property, their existed a road as was visible from the photographs."
12. The road which lies between the two blocks, admittedly, leads to and connects 60 feet public road. It is not in dispute that land belonging to the plaintiffs immediately abuts this road. Plaintiffs'' land is a vacant land. According to the plaintiffs even before formation of this road, they were using open area as a road to reach their land and that only after the construction of Genesis Apartments by the defendant, they tried to block the access of the plaintiffs.
13. Main contention of the appellants is that there is no other alternative road. The Court below has observed that photographs disclosed that there was an alternative road to the plaintiffs. There is no material placed on record to show that there is alternative road for the plaintiffs. In the additional written statement filed by the defendant, it is contended that plaintiffs have separate access along the Eastern boundary of the land in Sy. No. 31/4 and therefore, they would not be put to hardship, if the suit were to be dismissed. The Court below has not recorded any positive findings supported by prima facie material placed on record to hold that there was indeed in existence an alternative road to the plaintiffs to have access to their land. A bare observation is found in the order to the effect that the other photographs taken on 09.05.2015 showed that towards the Eastern side of the defendant''s property, there existed a road''. This has principally weighed in the mind of the Court below for rejecting the application.
14. Prima facie, on perusal of the photographs which have been produced before the Court below, for the bare eyes, no such road is discernable. If there is no alternative road to the plaintiffs to gain access to their land, then it would cause serious prejudice, loss and hardship and would indeed deprive the plaintiffs of an opportunity to use and enjoy their lands, if they are denied access to the suit schedule road. I find that if the plaintiffs do not have an alternative road, then it may result in prejudice, loss and hardship to the defendant and occupants of the apartments to allow access to third parties into the so called internal road. Mere fact that a compound wall had been put up earlier by the defendant to prevent access of the plaintiffs to the suit schedule road cannot be decisive in considering the application filed seeking temporary injunction because as per the very case of the plaintiffs, when the defendant started putting up construction and blocking access, they had filed a complaint before the Police and thereafter, they were constrained to approach the Court.
15. Therefore, the most important aspect for granting or refusing an order of temporary injunction, in the instant case, rests on the prima facie findings to be recorded by the Court below on the existence or otherwise of an alternative road to the plaintiffs. There is no satisfactory consideration of the materials on record. Indeed the photographs produced by the defendant do not clearly show the existence of the road. However, without expressing any opinion on this aspect of the matter and as the Court below has not given importance to this aspect of the matter regarding existence or otherwise of an alternative road while rejecting the application filed seeking temporary injunction, I am of the view that the matter requires reconsideration by the Court below.
16. As the issue pertains to serious nature of grievance regarding access to the property of the plaintiffs, the Court below has to carefully examine the entire materials afresh and record a prima facie finding regarding existence or otherwise of an alternative road, on which rests the prima facie case of the plaintiffs and the irreparable injury, if any, that may result to them.
17. As the Court below has not made such an endeavour, the impugned order is set aside. Matter is remitted to the Court below for fresh consideration in accordance with law. Both parties are directed to maintain status-quo with regard to the suit schedule road till the application is considered and disposed of afresh. Both the appeals are accordingly disposed off.
