Sheshamma vs Channappa

H.G. Ramesh, J.—Appeal arises out of the dismissal of the suit filed by the plaintiffs for injunction in respect of the way being used in property bearing Sy.No.8 measuring 15 acres situate at Kaluvehalli Village belonging to them, which has fallen to their share in the partition.

As per the admitted facts, property in Sy.No.18 and 20 has fallen to the share of the defendants. It appears on the ground although there are separate ways on the eastern and western side of Sy.No.8 beyond the boundaries but still the defendants are trying to interfere and making use of the road in Sy.No.8 as such, the suit came to be filed for permanent injunction.

The matter was contested by the defendants on the ground that the way claimed is already in existence since time immemorial and it is also being used not only by the defendants but also by other neighboring owners.

The trial court raised relevant issues for consideration and held that plaintiffs are not entitled for an order of injunction. In the appeal filed against the said order by the plaintiffs, it was contended that there is no way available in Sy.No.8. Even though on both the eastern and western side of the property in Sy.No.8 there is a tar road available, unnecessarily the defendants are trying to interfere with the peaceful enjoyment of the property by making a road despite there is no such road on Sy.No.8.

Meanwhile it appears there is an application filed by the respondents/defendants before the Tahsildar seeking for report as to existence of road in Sy.No.8 belonging to the appellants herein pursuant to which an exparte report is submitted stating there is a road available based on which the lower appellate court decided the case against the plaintiffs. Hence, this second appeal.

Heard the counsel representing the parties.

The contention of the appellants is, such a report has been submitted unilaterally by the Tahsildar without notice to the plaintiffs. This aspect has been controverted by the respondents.

Be that as it may, against the order of the Tahsildar when plaintiffs approached the Assistant Commissioner, the Assistant Commissioner rather instructed them to approach the civil court. However, meanwhile, it appears based on the report of the Tahsildar, the claim of the plaintiffs for permanent injunction has been dismissed.

The substantial question of law that arises for consideration is whether the report of the Tahsildar in identifying the road on Sy.No.8 without notice to the plaintiffs/appellants and the lower appellate court acting upon the same amounts to illegality and thereby there is an error committed by the lower appellate court in dismissing the suit for permanent injunction.

As long as title is not in dispute, suit for permanent injunction is maintainable. If there is dispute as to title and interest if any, available then necessarily it has to be treated as a comprehensive suit for declaration, possession and injunction as the case may be. The stand of the defendants appears to be that there is a road available from time immemorial, being used not only by the defendants but some others also and the road runs beyond Sy.No.8 belonging to the plaintiffs and so contending, obtained a report from the Tahsildar . A finding could have been given by the Tahsildar in the circumstances on visiting the spot and examining the situation before such an injunction order could be issued on the property bearing Sy.No.8 by way of prohibitory injunction/permanent injunction. On such spot inspection, if there is no total privacy in Sy.No.8, it could have been reported so stating that it is not fit to use. Even if it is considered there is usage by way of prescription, the trial court and the lower appellate court could have issued an injunction if there is cogent evidence. But, what is being asserted in the written statement by the defendants is, there is a right of way available since time immemorial. That needs little exhaustive inquiry by way of declaration and to get the right declared by the defendants by filing a counter suit (comprehensive suit) for declaration. Now since the report states that there is a road since time immemorial, in the absence of the plaintiffs at the time of spot inspection, that would necessarily affect the right of the plaintiffs.

Only from the point of compliance of natural justice, to ascertain as a matter of fact finding, once again spot inspection be conducted by the Surveyor in the presence of the parties based on which if there is a road in existence, then question of granting permanent injunction in favour of the plaintiffs does not arise. So far as the right to be asserted by the defendants if any, permanently based on prescription etc., counter suit has to be filed by him.

For the present, what is being asserted by the defendants is, they do not assert right over the property by way of a road in Sy.No.8 but they have only removed the shrubs which had grown on the hedges and no such interference is being caused to the property of the plaintiffs. If such a submission is taken on record, there would be no impediment for the plaintiffs to protect their property by putting a fence. Ordered accordingly.

While answering the substantial question of law accordingly, appeal is disposed of.