The High Court
Case Details
- 1 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 3332 OF 2025 (CPC) BETWEEN: SMT.NANCY PAIS AGED ABOUT 68 YEARS, R/A NO 1231, 'O'BLOCK, PLATINUM CITY, BANGALORE-560058 (BY SRI. D R RAVISHANKAR, SENIOR COUNSEL FOR SRI. KETHAN KUMAR, ADVOCATE) …APPELLANT AND: SR.G.SRINIVAS LEGAL HEIRS OF SMT KAMALAKSHI, AGE NOT KNOWN, MAJOR, R/A SITE NO, 10, INFRONT OF G.J.NEST, NO. 8, 4TH CROSS, LOTTTEGOLLAHALLI BANGALORE-560094 (BY SRI. H MALTESH, ADVOCATE FOR C/R) …RESPONDENT THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 08.04.2025 PASSED ON IN O.S.NO.5455/2024 ON THE FILE OF THE XXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-14, DISMISSING THE IA.NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, 1908 AND ETC. IA NO.I THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL JUDGMENT
Legal Reasoning
The above appeal is filed by the plaintiff calling in question the order dated 08.04.2015 passed on IA.No.1 in OS.No.5455/2024 by XXXI Additional City Civil and Sessions Judge, Bengaluru (CCH-14)1, whereunder IA.No.1 filed by the plaintiff has been rejected and IA.No.3 filed by the defendant has been allowed. 2. The relevant facts in a nutshell leading to the present appeal are that the appellant/plaintiff instituted a suit in OS No.5455/2024 seeking a declaration that the Sale Deed dated 12.08.2005 is null and void and to direct the defendant to hand over possession of the property to an extent of 450 sq.ft., in the suit schedule ‘A’ property, as also for other reliefs. The defendant entered appearance in the suit and filed his written statement contesting the case of the plaintiff. Along with the suit, the plaintiff filed IA.No.1 to restrain the defendant from alienating the suit schedule ‘B’, ‘C’ and ‘D’ properties. The Trial Court, vide ex parte order dated 1.8.2024, granted the 1 Hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR relief sought in IA.No.1. Thereafter, the defendant filed objections to the application as also an application under Order XXXIX Rule 4 of the Code of Civil Procedure, 19082 to set aside the ex parte order dated 1.8.2024. The Trial Court, vide the impugned order dated 8.4.2024 dismissed IA.No.1 and allowed IA.No.3. Being aggrieved, the present appeal is filed by the plaintiff. 3.
Legal Reasoning
Learned Senior Counsel Sri D.R.Ravishankar appearing along with learned counsel Sri Kethan Kumar, for the appellant contends that the extent of property purchased by the plaintiff is evident from the Sale Deeds dated 15.11.2002 and 25.10.2005. It is further contended that the wife of the defendant having purchased the property under the Sale Deed dated 12.8.2005, wherein the extent is clearly mentioned, as also the fact that the vendor of the wife of the defendant having been a party to the Sale date dated 15.11.2002, under which the vendor of the plaintiff purchased the properties, the question of the vendor of the defendant conveying a larger extent than what was allotted to him under the palupatti dated 16.10.1995 under which he acquired the property does not 2 Hereinafter referred to as ‘CPC’ - 4 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR arise. It is further contended that the Trial Court erred in not noticing the fact that the plaintiff has made out a prima facie case and ought to have granted injunction as sought for vide IA.No.1. 4. Per contra, learned counsel Sri Malathesh appearing for the respondent contends that the wife of the defendant has purchased the suit schedule ‘B’ and ‘C properties under the registered Sale Deed dated 12.8.2005 and the wife of the defendant as also the defendant having been in possession of the said property ever since the date of purchase, the question of any order of injunction being passed at the present stage would not arise. It is further contented that although the plaintiff has purchased the property vide Sale Deed dated 25.10.2005, it is only in the year 2024 that the suit has been filed after an inordinate delay. Hence, the question of granting any interim relief as sought for in IA.No.1 does not arise. 5. The submissions of both the learned counsels have been considered and the material on the record has been perused. The question that arises for consideration is, whether the interim order dated 8.4.2025 passed by the Trial Court is erroneous and liable to be interfered with? - 5 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR 6. Admittedly, the plaintiff is the owner of site No.11, which is described as schedule ‘A’ to the plaint having purchased the same vide registered Sale Deed dated 25.10.2005. In the said Sale Deed, measurements of site No.11 are mentioned as, east to west (44+46)/2 ft., and north to south 70 feet (totally measuring 3150 sq.ft.). The vendor of the plaintiff purchased the said site No.11 vide registered Sale Deed dated 15.11.2002 wherein the measurements of site No.11 are also mentioned as east to west (44+46)/2 ft., and north to south 70 ft., (totally measuring 3150 sq.ft.). It is relevant to note that the vendor of the wife of the defendant i.e., P.Ananda has signed as consenting witness No.2 to the said Sale Deed dated 15.11.2002. 7. The wife of the defendant purchased site No. 10, which is morefully described as schedule ‘B’ property to the plaint vide registered Sale Deed dated 12.8.2005, wherein the measurements of the said site No.10 are shown as east to west 44¾ ft., and north to south 78 ft., (totally measuring 3490 sq.ft.,). The wife of the defendant has also purchased site No.9, which is morefully described as schedule ‘C’ property to the plaint, vide another registered Sale Deed dated 12.8.2005, - 6 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR wherein the extent of property is mentioned as east to west 20 ft., and north to south 70 feet, (totally measuring 1400 sq.ft.). 8. It is forthcoming from the records that the wife of the defendant has amalgamated the suit schedule ‘B’ and ‘C’ properties i.e., site Nos.9 and 10 and the same has been re- numbered as site No.9. The amalgamated property is described as schedule ‘D’ to the plaint, which indicates the property owned by the defendant is a total extent of 4890 sq.ft. 9. It is the case of the appellant/plaintiff that the vendor of the wife of the defendant i.e., P.Anand was allotted site Nos.9 and 10 vide the palu patti dated 16.10.1995, to which the predecessor in title to both the plaintiff i.e., Annappa and the predecessor in title to the defendant i.e., P.Ananda are parties and that the extent of site No.11 allotted to Annappa is correctly mentioned as east to west (44+46)/2 ft., and north to south 70 ft., which is the total extent of 3150 sq.ft. Similarly, in the said palu patti dated 16.10.1995 the measurements of site No.10, which was allotted to Ananda are shown as east to west 44 ft., and north to south 70 ft. Hence it is contended that the vendor of the wife of the defendant i.e., P.Ananda having been - 7 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR allotted an extent of 44 ft., x70 ft., could not have conveyed an extent of 44¾ ft., x 78 ft., vide the Sale Deed dated 12.8.2005. 10. It is relevant to note here that in the plaint, the plaintiff has averred that an additional extent of 450 sq.ft., has been fabricated by the defendant and the defendant is now claiming a total extent of 4890 sq.ft. In support of the said contention, the appellant also rely upon the notice dated 27.9.2005 issued by Bangalore Mahanagara Palike, whereunder apart from the extent of 3080 sq.ft., in site No.10 and 1400 sq.ft., in site No.9, it is shown that a further extent of 410 sq.ft., of adjoining land is claimed by the defendant. 11. It is the case of the defendant that ever since the date of purchase from 12.8.2005, the defendant has been in possession of the entire extent as mentioned in suit schedule ‘D’ property. 12. It is clear from the aforementioned rival contentions of the parties that the present case is one where the plaintiff alleges encroachment of 450 sq.ft., by the defendant, which aspect is required to be adjudicated during the course of trial. 13. However, in this context it is relevant to note that the alleged encroachment is sought to be alleged by the - 8 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR plaintiff nearly 20 years after the purchase of the property by the wife of the defendant. At para 6 of the plaint, it is averred that there was litigation going on between the plaintiff and Bangalore Development Authority3 and when the officials of the BDA created interference in the peaceful utilization of the property in the year 2021, the plaintiff approached the jurisdictional Court seeking for an order of injunction against the officials of the BDA in OS No.25315/2015, wherein a written statement was filed by the BDA mentioning an endorsement having been issued to the plaintiff, which was annexed to the sketch, which indicated that site No.11 was an extent of 2829 sq.ft. It is further averred by the plaintiff that the actual extent of the property of the plaintiff being 3150 sq.ft., the plaintiff realized the encroachment by the defendant. 14. However, it is relevant to note here that although the plaintiff seeks to aver knowledge regarding the alleged encroachment consequent to filing of OS No.25315/2021, there is no explanation by the plaintiff regarding any action having been taken ever since the date of sale in the year 2005 insofar 3 Hereinafter referred to as ‘BDA’ - 9 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR as the extent of the property of the plaintiff and the alleged encroachment. 15. It is the vehement contention of the learned counsel for the defendant that acquisition proceedings were initiated by BDA and the plaintiff having failed in the challenge to the same, the present suit is filed attempting to claim a further extent of property from the defendant. 16. In view of the aforementioned fact situation, in view of the assertion made by the plaintiff that the defendant has encroached an extent of 450 sq.ft., and in view of the denial of the same, pending adjudication of the same by the Trial Court in the suit filed by the plaintiff and in view of the fact that the alleged encroachment is now sought to be asserted nearly 20 years from the date of purchase, the Trial Court was justified in not granting an order of injunction as sought for in IA.No.1 by the plaintiff. 17. Accordingly, the question framed for consideration is answered partly in the affirmative. 18. However, the interest of justice would be served if the above appeal and IA.No.1 filed by the plaintiff before the trial Court are disposed of by observing that any alienation - 10 - NC: 2025:KHC:21101 MFA No. 3332 of 2025 HC-KAR made by the defendant of the alleged encroached portion would be subject to the result of the suit. 19. Accordingly, IA.No.1 filed by the plaintiff before the Trial Court and the above appeal are disposed of. 20. The observations made by the Trial Court vide the impugned order dated 8.4.2025 and this Court while disposing of the present appeal are only for consideration of the interim applications and the Trial Court shall adjudicate upon the suit uninfluenced by the observations made either by the Trial Court or by this Court. SD/- (C.M. POONACHA) JUDGE ND List No.: 2 Sl No.: 13