A plaintiff can seek a temporary injunction to protect an easementary right even if a formal declaration of that right has not been made, provided they can demonstrate a prima facie case and the absence of alternative access.

JUDGMENT

1. This matter is listed for admission today. Heard the learned counsel for the appellants and the learned counsel for the caveator/respondent No.3.

2. This appeal is filed being aggrieved by the order of the Trial Court passed in O.S.No.5900/2022 on I.A.No.1 filed by the plaintiffs under Order 39 Rules 1 and 2 read with Sec. 151 of CPC questioning the allowing of the application and rejecting the application filed by the appellants i.e., I.A.No.2 filed under Order 39 Rule 4 read with Sec. 151 of CPC.

3. The factual matrix of the case of the plaintiffs before the Trial Court is that the plaintiffs filed a suit for the relief of permanent injunction praying the Court to grant an order of injunction, interalia sought for an order to grant temporary injunction restraining the defendants, their agents, servants or anybody else claiming through them from preventing the plaintiffs from using the road marked as DEFG in the rough sketch to gain access to the suit schedule property, till the disposal of the suit. In support of the application, an affidavit is sworn to by plaintiff No.3 that plaintiff No.1 is her father and plaintiff No.2 is her brother. The agricultural land situated in Sy.No.41/3 Yelahanka Taluk, Bangalore which is fully described in the schedule to the plaint and referred to as "suit schedule property", is the ancestral and joint family property of herself, her father and brother. They have been in possession and enjoyment of the suit schedule property. It is contended that in the family partition, her father was allotted the suit schedule property and another half portion in the same survey number is allotted to the share of Kempanna, the uncle of his father. The said Kempanna converted his property for non-agricultural for transport purpose. The defendants have purchased the property from the said Kempanna. The suit schedule property and the property allotted to the share of Kempanna, the uncle of her father is totally measuring 1 acre 21 guntas. Since time immemorial, their ancestors had been gaining access to the said land from Bengaluru-Ballary main road through the adjacent land which are also purchased by defendant No.1. After the partition between Kempanna and her father, they were also gaining access to the suit schedule property through the said road. Except the said road there is no other road to gain access to the suit schedule property. Now the said road DEFG is formed with asphalted (Bitumen) road.

4. It is contended that they have acquired easementary right over the said road marked as DEFG and they have every right to continue to use the said road. The defendants who have purchased the surrounding properties including the property of Kempanna had been running school near the schedule property. The defendants are using the property purchased from Kempanna for parking their school buses and other vehicles and they have no other road except the road marked as DEFG in the rough sketch to gain access to the suit schedule property. In the current academic year 2022-2023, the defendants have shifted their school to some other place. Thereby, the defendants have been using the said road marked as DEFG in the rough sketch rarely. After shifting their school, often and often the defendants have been obstructing them from using the said road. They tolerated the same hoping that the defendants may mend themselves and stop their obstructions. But on 6/9/2022, the defendants have deployed their employee to prevent them from using the said road as usual. Hence, they were compelled to approach the jurisdictional police to lodge complaint. But, the said police refused to receive the complaint. Now, they learnt that the defendants have been planning to close the said road DEFG by putting permanent compound wall. In such an event, they will be deprived of their easementary right of the only way to gain access to the suit schedule property. While going to and coming from the suit schedule property, the employees