The right of easement, recognized under Indian law, can be claimed through long uninterrupted use, especially when accessing landlocked properties, necessitating judicial protection pending trial.

JUDGMENT :

RAMACHANDRA D. HUDDAR, J.

This Miscellaneous First appeal is directed against the order dated 13.8.2019 passed by the VIII Additional City, Civil and Sessions Judge, Bengaluru (CCH No.15) in OS No.606 of 2018, whereby, the application filed by the appellant under Order 39 Rule 1 and 2 of CPC seeking temporary injunction was rejected.

2. The present appeal arises under peculiar facts and circumstances involving a claim for protection of an easementary right of access over an existing road which, according to the appellant, is a sole means of ingress and egress to his land locked property. The matter raises questions pertaining not only to the interpretation of easementary rights under the Indian Easement act, 1882 but also concerns the practical enforcement of those rights in situations where such access is threatened due to allotments made under acquisition schemes by the Public Bodies such as Karnataka Industrial Area Development Board(`KIADB' in short).

The factual matrix as asserted by the appellant are that:

3. He is the absolute owner and possessor of land measuring 1 acre 7 guntas situated in survey no.15, now numbered as survey no.215, of Doddanekundi Village, Marathahalli Hobli, Bengaluru East Taluk. It is averred that, originally, the land in question was Government land which came to be granted under a Saguvali Chit in favour of the appellant's father by name Sri T.Narayana Reddy. After his demise, the land was subjected to a partition among his sons. In the said partition, the appellant was allotted 1 acre 10 guntas, though three guntas came under dispute, and presently one acre 7 guntas stands in the name of the appellant. Over the years, the appellant constructed small residential units on the said land to accommodate the economically weaker sections of society primarily, daily wage labourers. These constructions are in occupation and are used for residential purposes by tenants who have been residing there for several years. It is the case of the appellant that, himself and residents have been utilizing a particular road for the purpose of ingress and egress from the property to the main public road. This road, which is centre to the present dispute originates from ITPL main road situated on the western side and passes through the North-western portion of survey no.16 and sy.no.15 before reaching the scheduled property in Sy.No.215.

4. It is the definite case of the appellant that, this access road existed for decades and has been the only mode of access to his land locked property. The road in question is not a newly constructed or informal pathway but, one which has been used openly continuously and as of right by the appellant and the occupants of the property for all practical purposes. Digital evidence, including google maps and sketches, have been placed on record by the appellant along with plaint showing the topography and layout of access route. It is his case that, road is clearly demarcated and corresponds to well-worn path used for pedestrian and vehicular movement.

5. As per the averments made in the plaint and in the interim application so filed in the plaint, it is stated that difficulty arose when pursuant to acquisition proceedings undertaken by the KIADB, allotments were made in favour of the respondents over adjacent lands including sy.no.15, 16 and 76. It is alleged that, although initial allotments had been cancelled, they were later restored following intervention by this Court. Following such restoration, the respondents began fencing and constructing compound walls around their respective allotments. It is alleged that, in doing so, they obstructed the existing access road which the appellant and the residents were using thus, effectively blocking the only approach road to survey no.215. It is alleged that the appellant faced with this obstruction and therefore, filed OS No.606 of 2018 for permanent injunction and simultaneously moved an interim application under Order 39 Rule 1 and 2