SHARADA N. SHANBHOGUE Vs. BHOJAPPA SALIAN

JUDGEMENT

(1.) Defendants 2, 4 to 7, 9 to 12, 14, 16 and 17 are before this Court being aggrieved by the Judgment and decree dtd. 9/8/2016 passed in O.S.No.140/2009 on the file of the Addl. Civil Judge and JMFC, Udupi (hereinafter referred to as 'the Trial Court' for short) by which, the Trial Court decreed the suit of the plaintiffs granting permanent injunction in their favour restraining defendants from interfering with plaintiffs' usage over the suit 'P' road or causing any obstruction over the same and against the said judgment and order dtd. 29/1/2021 passed in R.A.No.38/2016 on the file of the Addl. Senior Civil Judge, Udupi (hereinafter referred to as 'the First Appellate Court' for short) by which the Judgment and decree of the trial court is confirmed.

(2.) The above suit in O.S.No.140/2009 was filed by the plaintiffs/respondent Nos.1 and 2 herein contending inter alia that item Nos.1 and 2 of plaint A schedule were acquired by plaintiff No.1 in terms of Deed of Sale dtd. 22/3/2006 and item Nos.3 and 4 of plaint A schedule property were acquired by plaintiff No.2 in terms of registered Deed of Sale dtd. 22/3/2006, executed by defendants. That ever since then, plaintiffs have been in possession and enjoyment of the said properties. It is further contended that towards western side of plaint A schedule property there existed property bearing Sy.No.18/7 and 18/8 belonging to the defendants there also existed property bearing Sy.No.18/6 that also belongs to the defendant. There is a Panchayat road called as Sanyasi Mutt Vadabandeshwara Main Road running North to South situated immediately to the western side of the defendant's property. That to have access to the said main road, a mud road exist on the northern side of Sy.No.18/7 and Sy.No.18/6 belonging to the defendants which runs East to West. That said road is shown in the sketch and referred to as 'P'. That the said road exist in Sy.No.18/6 since time immemorial. The said road forming part of Sy.No.18/6 is referred to as 'disputed road' and road shown in Sy.No.18/8 is referred to as 'undisputed road'. It is further contended plaintiffs purchased plaint A schedule properties from the defendant upon representation and admission of the defendant that the 'disputed road' has a common pathway which has been used by the defendants and others for several years to reach to the main road. Therefore in continuation of said existing 'disputed road' plaintiffs were provided 9 feet road facility in Sy.No.18/8 by the defendants in the deeds of sale dtd. 22/3/2006. Thus it is contended that the plaintiffs have been using 'P' road to reach the main road from plaint A schedule properties which is the only access to reach to the main road. That the defendant No.4 with an intention to cause obstruction to the plaintiffs in enjoying their right to use the said road, had blocked the same by constructing a wall resulting in plaintiffs filing a suit seeking relief of injunction against defendants.

(3.) Upon service of summons, defendant Nos.1, 2, 4, 5, 7 to 17 appeared through their counsel. Defendant Nos. 3 and 6 remained absent. Defendant No.4 filed written statement, which was adopted by defendant Nos.1, 2, 5, 7 to 17. In his written statement, defendant No.4 admitted the ownership and possession of the plaintiffs over the plaint A schedule properties however, denied their right to use the 'disputed road'. It was contended that the 'disputed road' was formed for the personal use of defendants and some of their purchasers, who purchased the land from them. That in the Deed of Sale that were executed in favour of plaintiffs no right to use the 'disputed road' was not recognized. Road existing in Sy.No.18/6 belongs to defendants and right to use the said road was accorded to one Umesh Suvarna and Ganagadhar Palan, which was recognized in the Deed of Sale executed in their favour. That the plaintiffs unnecessarily tried to interfere by using the said road without any right. On these grounds, sought for dismissal of the suit.