IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 2665 OF 2025 (CPC)

BETWEEN:

1. NEETHAN H SALDANA S/O LATE ANTHONI SALDANA AGED ABOUT 55 YEARS R/O HOLY CROSS ESTATE HONNEKOPPA, HAMLET, DEVADANA VILLAGE, SANGAMESHWARAPETE POST, KHANDYA HOBLI, CHIKKAMAGALURU TALUK AND DISTRICT – 577 136.

2. SMT. CAROL SALDANA W/O NEETHAN H SALDANA AGED ABOUT 50 YEARS R/O HOLY CROSS ESTATE HONNEKOPPA, HAMLET, DEVADANA VILLAGE, Digitally signed by SANGAMESHWARAPETE POST, RAMYA D KHANDYA HOBLI Location: CHIKKAMAGALURU TALUK HIGH AND DISTRICT – 577 136.

COURT OF KARNATAKA …APPELLANTS (BY SRI. SACHIN.B.S, ADVOCATE)

AND:

SRI. NAVEEN TRENCE SALDANA HOLY CROSS ESTATE AGED ABOUT 57 YEARS R/O HOLY CROSS ESTATE HONNEKOPPA, HAMLET, DEVADANA VILLAGE, SANGAMESHWARAPETE POST, KHANDYA HOBLI CHIKKAMAGALURU TALUK AND DISTRICT – 577 136.

…RESPONDENT (BY SRI. RAKESH KINI, ADVOCATE FOR CAVEATOR RESPONDNET)

THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 07.02.2025 PASSED ON I.A.NO.4 IN OS.NO. 167/2024 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C., CHIKKAMGALURU, REJECTING I.A.NO.4 FILED UNDER ORDER

39 RULE 1 AND 2 OF CPC.

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

ORAL JUDGMENT

The plaintiffs being aggrieved by the order dated

07.02.2025 passed on I.A.No.4 filed under Order XXXIX Rules 1 and 2 of CPC in O.S.No.167/2024 by II Addl. Senior Civil Judge and JMFC., at Chikkamagaluru, thereby, the application filed for temporary injunction is rejected.

2. The appellants/plaintiffs have filed the suit for declaration that the plaintiffs are the absolute owners in possession of the plaint ‘A’ schedule property, and for declaration that the plaintiffs have got the right of way over plaint ‘B’ schedule property by easement of right and for permanent injunction restraining the defendant or his agents, servants or anybody acting on his behalf from illegally closing ‘B’ schedule road which connecting ‘A’

schedule property to ‘C’ schedule property.

3. Initially, the trial Court has granted an exparte order of temporary injunction restraining the defendant not to interfere with the right of way of the plaintiffs over the plaint ‘B’ schedule property. Subsequently, by the impugned order, it was vacated. Therefore, the plaintiffs have filed the present appeal.

4. The defendant is the brother of the plaintiffs. It is not disputed that the plaintiffs are the owners of item No.1 of ‘A’ schedule property. It is the case of the plaintiffs that their borewell is situated in plaint ‘C’ schedule property. Plaint ‘B’ schedule property is the only way to the plaintiffs to reach to ‘C” schedule property from ‘A’ schedule property for carrying out their agricultural operations by making use of the said borewell. There was a partition between the plaintiffs and defendant on 21.09.2005. In the said partition, the plaint ‘B’ schedule property was allotted to the defendant. There is a way in ‘B’ schedule property for making use of the same by both the plaintiffs and defendant. The plaintiffs have filed the suit under Section 13 of the Indian Easement Act, 1882. Therefore, it is submitted that the plaintiffs have got the right of easement by way of necessity.

5. It is not the case of the plaintiffs that the right of easement of the plaintiffs is by prescription. But the trial Court has misconstrued the said pleading that the plaintiffs have got the right of easement by prescription and therefore, there is no compliance of Section 15 of Easement Act. It is the case of the plaintiffs that schedule ‘B’ property is the only way for the plaintiffs to reach to schedule ‘C’ property from schedule ‘A’ property. The way on which schedule ‘B’ property is in existence is to be used by both the plaintiffs and defendant as per the case made out by the plaintiffs in th