The central legal point established in the judgment is the necessity for clear pleadings and the basis for claiming easement under the Easements Act, and the requirement to establish a prima facie right to an easement.

( 1 ) THIS is a defendant's appeal against the orders passed by the 12th Additional Civil Judge on. A. IX in O. S. No. 62 of 1990.

( 2 ) RESPONDENTS herein filed the suit O. S. No. 62 of 1990 against the appellants for permanent injunction and for declaration regarding the two sale deeds executed by one Lalithamma in favour of the appellants herein as a got up document. In the suit they had filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure against the appellants for an order of temporary injunction to restrain the appellants from interfering with their possession and enjoyment of property described in the plaint as 'a' schedule property and restrain them from interfering with their right of passage described as 'c' schedule property, and also prevent them from putting up any construction in respect of properties in possession of the appellants. Upon notice of the suit and the application, appellants entered their defence and objected for granting of temporary injunction. Learned Judge after hearing the parties by his order dated 9-2-1998 has restrained the appellants from interfering with respondents' possession of 'a' schedule property and the respondents using common passage in the 'c' schedule property. However he has rejected the last prayer to restrain the appellants from putting up construction in the property in their possession. This order is under challenge.

( 3 ) SRI Manjunath, learned Counsel appearing for the appellants contended that the order of the learned Judge granting injunction cannot be supported from the material on record, and in particular his main objection is to the finding of learned Judge that respondents have a 'right of passage' without there being any prima facie material and granting of injunction on that basis according to him, learned Judge was not justified in holding that the respondents plaintiffs have a "right of way" in the said lands which is a "declaration of easement".

( 4 ) PER contra Sri Prabhu, learned Counsel appearing for the respondents defended the order and submitted that having regard to the admissions made by the vendor of the respondents in another suit it should be held that the vendor has granted a "right of way" to the plaintiffs in the plaint 'c' schedule property. Therefore, learned Judge was justified in granting the injunction. Learned counsel in support of the said contention relied on Section 13 (d) of the Easements Act and also the decision of the Madras High Court in K. Govindarajulu Chettiar v V. N. Srinivasalu Naidu.

( 5 ) A few facts as can be gathered from the records necessary for the disposal of the case are as follows.-The plaint schedule properties originally belonged to one Captain Naidu which is situated at millers Road, Bangalore. The said Captain Naidu it appears bequeathed the entire property to his daughter Lalithamma. The said Lalithamma out of the property so acquired by her sold 24,500 sq. ft. , to the plaintiffs-respondents by means of a registered sale deed dated 14-3-1985 and put the plaintiffs in possession. Subsequently on 26-6-1989 she sold another 19,680 sq. ft. in favour of the appellants-defendants. According to the appellants they were put in possession of the said property. However the plaintiffs contended before the Court below that Lalithamma had agreed to sell the properties sold to the defendants in their favour earlier to the alleged sale deed, therefore the sale deed alleged are not valid in law. Besides they have already questioned the genuiness of the sale deed made in favour of the appellants.

( 6 ) LEARNED Judge relying on the recitals in the sale deed executed by Lalithamma in favour of the respondents-plaintiffs dated 14-3-1985 has held that the "recitals disclose that Lalithamma sold the property and put the plaintiffs in possession" and has come to the conclusion that prima facie plaintiffs are the owners of the property. On that basis granted temporary injunction.

( 7 ) SRI Manjunath d

Click Here to Read the rest of this document