ORDER

This petition by the defendant No.2 in O.S.No.300/2018 on the file of the Principal Civil Judge and JMFC, Hosakote is directed against the impugned order dated 14.02.2023 whereby the request of the petitioner – defendant No.2 to decree the suit of the respondent Nos.1 to 4 – plaintiffs as against the petitioner –

defendant No.2. in view of the admission made by the petitioner – defendant No.2 in his written statement was rejected by the Trial Court.

2. A perusal of the material on record will indicate that the respondent Nos.1 to 4 – plaintiffs instituted the aforesaid suit for permanent injunction and for other reliefs in relation to the suit schedule immovable properties as here under:

“Wherefore, it is prayed that this Hon’ble Court may be pleased to :

a. Set aside the order dated 14.02.2023, in the O.S. No. 300/2018 pending in the court of the Hon’ble Principal Civil Judge and JMFC, Hoskote at Annexure A.

b. Consequently , pass the Judgement and decree based on admissions of the defendants, as per the provisions of Order XII Rule 6 of the code of civil procedure, 1908.

c. Pass any such other order as this Hon’ble Court may deemed fit and proper in the interest of equity and justice.

Schedule All the piece and parcel of Kalu dari foot path measuring to an extend of 04 Guntas, criss-crossingrunning from North east to South-West in Sy.No.17 of Ekarajapura Village Selibele Hobli, Hoskote Taluk, Bengaluru Rural District, bounded on the East By : land in Sy.No.17 West By : land in Sy.No.17 North By : Same Foot path leading to Gullahalli Village, South By : Same foot path leading to E Muthasandra Village

3. The petitioner – defendant No.2 filed his written statement interalia admitting the existence of the suit schedule property and that there existed Kaludari / pathway in the suit schedule property as claimed by the respondent Nos.1 to 4 – plaintiffs. The said admissions made by the petitioner – defendant No.2 in the written statement are as hereunder:

“The 2nd Defendant submits that the plaintiffs may even use the admissions made by the 2nd defendant herein in this suit to exercise their rights. The 2nd defendant herein undertakes to demolish the warehouse on top of the suit schedule property once herein directed by this Hon’ble Court. The 2nd Defendant submits that the construction on the suit schedule property was carried out with the bonafied belief that the foot path had been shifted. However, The 2nd Defendant is a law abiding person and is agreeable to rectify this mistake committed due to the fraud carried out by the 1st Defendant.

All the contentions made in these paragraph are true except for the contention that the plaintiffs are currently utilising the foot path as there is already a warehouse constructed on top of it. Furthermore, the neighbouring plots have also constructed industrial complexes on the footpath that continues into their properties. There is also a compound constructed that prevents anyone from entering the property through the footpath. Therefore, from the year 2015, it is impossible for anyone to be utilising the footpath for ingress and egress.

As stated above, the plaintiffs and the other villagers cannot have been currently using the suit schedule property as the 2nd Defendant much earlier to the filing of this suit. The warehouses were constructed on the suit schedule property due to the fraud committed by the 1st Defendant. The 2nd Defendant is unaware as to why the plaintiffs feel it is necessary to make false representations to this Hon’ble Court when they have a perfectly valid case to present. The 2nd Defendant acknowledges that there is a footpath on the suit schedule property and that the warehouses have already been constructed on it due to the fraud committed by the 1st defendant. The 2nd Defendant is in fact willing to rectify this mistake. However, since he is only a joint owner of the said lands along with the 1st defendant, he cannot demolish the warehouse on the suit schedule propert