The petitioners are before this Court seeking for the following

reliefs:

a) To issue a writ in the nature of certiorari quashing

the impugned order dated 09.12.2021 passed in

M.A.No.48/2021 by the I Addl.Senior Civil Judge

and CJM, Belagavi vide Annexure-A.

b) Issue such other writ, order or direction as may be

deemed

appropriate

in

the

given

set

of

circumstances.

O.S. No.766/2021 was filed by the respondent herein

seeking for a declaration that the plaintiff has acquired

easementary right over suit schedule ‘A’ property and

consequent injunction restraining the petitioners herein from

obstructing the free ingress and egress of the respondent

herein through the passage in the suit schedule ‘A’ property

to the college road and further restrain the petitioners herein

from putting up any construction on the suit schedule ‘A and

- 3 -

suit schedule ‘B’ properties or encroach suit schedule ‘A’ or

suit schedule ‘B’ property.

3.

In the said suit, an application under Order XXXIX Rules 1

and 2 had been filed seeking for an an injunction restraining

the defendants from putting up any construction on the suit

schedule ‘A’ property. The trial Court rejected the said

application on the ground that the easement which had been

agreed upon between the erstwhile owners had got

extinguished on the sale of properties by various vendors

and therefore there is no requirement to maintain a common

passage for the purpose of access to a toilet or well with the

transfer of the properties when the earlier easement, which

had been mentioned, has been done away with and the

plaintiff has not made any prima facie case in her favor.

4.

Aggrieved by the same, the plaintiff had filed Miscellaneous

Appeal in MA No.48/2021 and the first Appellate Court

allowed the said appeal in part and directed the plaintiff and

defendants to maintain status-quo as regards the disputed

passage pending disposal of the suit, however, permitted

defendants to construct a building in the remaining area of

- 4 -

their property as per their building permission issued by the

competent authority. Aggrieved by the same the petitioners

are before this Court seeking for the aforesaid reliefs.

5.

Sri. Shreevatsa Hegde, learned counsel for the petitioners

would submit that, the entire property belonged to

Khandagale family. In the partition dated 13/05/1949, one

portion of the property on the western side was allotted to

Bahu Sakharam Khandagale and property on the eastern

side was allotted to Raghunath Sakharam Khandagale. The

petitioners are the subsequent purchaser under Bhau

Sakharam Khandagale, while respondent is the purchaser

under Raghunath Sakharam Khandagale. He submits that,

in terms of partition in the year 1949, there is a limited

easement which had been granted by both of them to each

other, inasmuch as 3 ft passage on the southern side was

permitted by Bhau Sakharam Khandagale to be used for the

purpose of accessing the common toilet by Raghunath

Sakharam

Khandagale,

while

Raghunath

Sakharam

Khandagale permitted the use of 3 ft wide passage in the

property falling to the share of Raghunath Sakharam

- 5 -

Khandagale for the use and access of a well situated in the

common area.

6.

In the said partition deed, it has been clearly stated that 3 ft

wide space was made available to access the common area

of 8 ft and 10½ ft on the southern side of the well by both

brothers. On the basis of the said document, he submits that

the passage was only for the access of toilet and well and

not for the access of college road, which is claimed by the

plaintiff and therefore the defendants could not have been

directed to maintain status-quo on the property.

7.

Per contra, Sri. Ramachandra Mali, learned counsel

appearing for caveator/respondent would, again relying upon

the very same partition deed, contend that the passage

extends up to the college road which is situated on the

western side of the property and therefore the respondent

had the right to use the said passage t