Writ Petition No. 16940 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 16940 OF 2025 (GM-CPC) BETWEEN: SRI SRINIVASA @ BABU S/O LATE BHEEMANNA AGED ABOUT 70 YEARS RESIDENT OF HONNALI ROAD SHIKARIPURA TOWN SHIVAMOGGA DISTRICT PIN CODE NO. 577 427. (BY SRI ASWATHANARAYANA REDDY, ADVOCATE) …PETITIONER Digitally signed by NAGAVENI Location: High Court of Karnataka AND:
Legal Reasoning
1. SMT. YASHODAMMA W/O LATE K.T.BABU RAO HOUSE HOLD WORK AGED ABOUT 72 YEARS R/O HONNALI ROAD SHIKARIPURA TOWN PIN CODE NO. 577 427. 2. K.T.RATESH S/O LATE AVALAKKI THIMMANNA ABOUT ABOUT 68 YEARS AGRICULTURIST R/O HONNALI ROAD SHIKARIPURA TALUK - 2 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR pin CODE NO. 577 427. (BY SRI NAGAIAH, ADVOCATE) …RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS IN RESPECT OF THE ORDER DATED 06.03.2025 PASSED ON I.A NO.1 IN OS NO.86/2025 ON THE FILE OF THE I ADDITIONAL JUDGE AND JMFC SHIKARIPURA, SHIVAMOGGA DSITRICT AND ORDER DATED 25.04.2025 PASSED AN IA NO.1 IN MA 8/2025 ON THE FILE OF I ADDITIONAL JUDGE AND JMFC SHIKARIPURA SHIVAMOGGA DISTRICT. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner – plaintiff is before this Court calling in question order dated 06.03.2025, passed by the 1st Additional Judge and JMFC, Shikaripura, Shivamogga District, on an application – I.A.No.1 filed under Order XXXIX Rules 1 and 2 r/w. Section 151 of the CPC seeking temporary injunction by the plaintiff, stands rejected, which is affirmed by the Senior - 3 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR Civil Judge and JMFC, Shikaripura, by an order dated 25.04.2025, passed in M.A.No.8/2025. 2. Heard Sri Aswathanarayana Reddy, learned counsel for petitioner and Sri Nagaiah, learned counsel for respondents. 3. The petitioner is the plaintiff, files a suit seeking possession of the suit scheduled property. The issue is not on the merit of the matter. The petitioner also files an application – I.A.No.1 seeking temporary injunction restraining the defendants from digging any foundation or construction of permanent structure by changing the nature of the suit scheduled property. 4. The concerned Court rejects the application of the petitioner by rendering the following reasons: “18. Further it is important to note that defendants have specifically contended that they are in possession of alleged place of constructing house which is situated in Sy.No.306/1 since from 1981 and also prior to granting land bearing Sy.No.306/1. Therefore, the plaintiff has to establish as to when he was in possession of alleged 1 gunta which is situated after channel. The plaintiff has filed present suit for recovery of possession only after alleged survey is conducted and Surveyor has shown 1 gunta of alleged encroachment in the suit schedule property. However, the plaintiff has not pleaded as to when and on what date defendant no.1 encroached 1 - 4 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR gunta. Therefore, at this juncture, contention of plaintiff cannot be accepted that defendant no.1 has encroached 1 gunta in Sy.No.305/1. Suit being for possession, burden is on the plaintiff to prove that the place where defendant no.1 is constructing house is belonging to plaintiff. Therefore, at this stage, the contention of plaintiff cannot be accepted without proving that 1 gunta is belonging to plaintiff. 19. Furthermore, if the plaintiff succeeds in proving that 1 gunta is belonging to him alleged to be wherein constructing house by defendant no.1, he will entitle for the relief of recovery of possession as main relief in the present suit is recovery of possession. Therefore, at this stage, the plaintiff has not made out prima-facie case. Whereas if plaintiff succeeds, he would entitle for recovery of possession of alleged 1 gunta even if defendant no.1 has constructed house. 20. The Judgment relied by the learned counsel for plaintiff in the case of Deepika S. Vs. State of Karnataka reported 2025(1) KCCR 384. On perusal of said Judgment it is evident that in the said suit survey was conducted and also phodi was effected and Commissioner report was also in favour of plaintiff that there was encroachment. Hence, interim application in the said suit was allowed. However, coming to the present suit survey sketch itself is not proper being all adjacent lands were not surveyed and no notice was issued to the adjacent land owners. Therefore, the said ratio will not come to the aid of plaintiff at this stage. Thus, balance of convenience is also not lies in favour plaintiff. If Temporary Injunction is granted without proving the contention of plaintiff that 1 gunta is encroached by defendant no.1 then more hardship would cause to the defendants. As such, this Court answered Point No.1 to 3 in the Negative. 21. Point No.4: For the forgoing reasons, discussion and findings on Points No.1 to 3, this Court proceeds to pass the following:
Decision
ORDER - 5 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR The I.A.No.I filed by plaintiff Under Order XXX1X Rule 1 and 2 R/w Sec.151 of CPC., is hereby rejected. No order as to costs.” (Emphasis added) This is called in question before the first appellate Court in M.A.No.08/2025. The first appellate Court in terms of its order dated 25.04.2025, confirms the order of the trial Court. Initially, the first appellate Court grants an interim order of status quo and after hearing the parties, rejects the said application filed by the petitioner. It is this, that has driven the petitioner to this Court in the subject petition. 5. Learned counsel for petitioner contends that if construction has been put up in one acre of land and therefore, the sketch should be looked into. The first Appellate Court after granting the interim order of status quo, appointed a Court Commissioner to submit a report as well as the sketch. - 6 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR 6. The first appellate Court in M.A.No.8/2025, has observed as follows: “13. The plaintiff has contended that, the plaintiff got conducted survey to his property recently. After conducting survey by the Surveyor, the Surveyor came to know that, the defendants have encroached 1 gunta of land in property bearing Sy.No.305/1 out of 1 acre 19 guntas. To that effect, the Surveyor has clearly identified the encroached portion of land in his sketch. 14. On the other hand, the defendants have contended that, the defendant No.1 has been constructing the residential house in the portion of the property bearing Sy.No.306/1, not in the property of the plaintiff. It is also their specific case that, there exists a Water Canal in between the plaintiff's and the defendants' property. The said Water Canal separates the plaintiff's and defendants' property. The defendant No.1 has been constructing the residential house after the existence of the Water Canal from the plaintiff's land. Therefore, the question of encroachment does not arise. Hence, it has the strongly contended by defendants have not encroached the plaint schedule property. the defendants that, 15. The Court Commissioner has filed his report stating that, as contended by the plaintiff that, the defendants have encroached the 1 gunta of land in the property bearing Sy.No.305/1. It is also reported by him that, the plaintiff has also encroached 1½ guntas of the defendants' property. To the said report, the plaintiff alone has filed his objection and contended that, the plaintiff has not encroached 1 ½ guntas of land of the defendants' existing in the property of the defendants. The Commissioner has not identified the boundary marks and Surveyor Sketch to measure the plaintiff and the defendants' property. Therefore, it is prayed to reject the Commissioner Report. - 7 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR 16. At this stage, it is necessary to rewrite the contention of the plaintiff in his objection to the Commissioner Report. "ವರ(cid:3) ನ(cid:5)ೆಯ(cid:8)(cid:9) (cid:10)ೋ(cid:13)(cid:14)ರುವ (cid:16)ಾಲು(cid:19)ೆಯ (cid:16)ೇವಲ ಸ(cid:19)ೆ(cid:21) ನಂಬ(cid:24) 306/1 ದ 306/2 ರ(cid:8)(cid:9) (cid:26)ಾತ(cid:28) ನ(cid:5)ೆಯಂ(cid:10)ೆ (cid:29)ಾದು(cid:29)ೋಗುತ(cid:31) ೆ ಆದ"ೆ (cid:16)ೋ#(cid:21) ಕ%ೕಷನ(cid:24) ರವರು (cid:16)ಾಲು(cid:19)ೆ 305 ಮತು(cid:31) 304 ರ ಮು(ಾಂತರ (cid:29)ಾದು (cid:29)ೋಗುತ(cid:31) ೆ ಎಂದು ನ(cid:5)ೆ. ವರ(cid:3) ಸ(cid:8)(cid:9)(cid:14)ರುವ*ದು ತ+ಾ,-ದು. ಸೃ01(cid:14) ಾ.-ರುತ(cid:31) ೆ." As per the above said contention by the plaintiff, it is the specific case of the plaintiff that, the Water Canal is existing in the property of the defendants, not in the plaintiff's property. In order to strengthen the said contention, the plaintiff has also produced Atlas Copy (Sketch). Where it has been shown the exact location of the Water Canal as stated by the plaintiff. The Water Canal exists in the property of the defendants as per the sketch produced by the plaintiff. Even on careful perusal of the said Water Canal in the said sketch, both sides of the Water Canal, the land of the defendants exists. As per the Sketch of the Court Commissioner, the plaintiff has encroached 1 1/2 guntas of land of the defendants, is believable in view of the stand taken by the plaintiff to the Commissioner Report as well as sketch produced by him. above, 18. As stated herein the Court Commissioner identified the Water Canal. According to the Commissioner, the Water Canal flows from South to North in the both lands of the plaintiff and the defendants. No doubt, the present sketch is tallying with the sketch produced by the plaintiff along with the plaint. As per the own contention of the plaintiff that, the Water Canal flows in the property of the defendants. When the Water Canal existing in the property of the defendants alone, contending by the plaintiff that, his property existing after the Water Canal is not believable at this stage. Therefore, as contended by the defendants that, the Water Canal separates the plaintiff's and defendants' properties is believable at this stage. No doubt, the plaintiff has produced the sketch in which the said Water Canal exists. But subsequent sketch says some other facts. All those facts can be considered after the full pledged Trail. - 8 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR 17. As stated herein above, both the parties have agreed the identification of their respective properties as identified by the Court Commissioner. When such being the case, the contention of the plaintiff that, the property of the plaintiff exists even after the Water Canal is not acceptable at this stage. Therefore, the plaintiff has not made out prima-facie case at this stage. On the other hand, the balance of convenience lies in favour of the defendants. 18. Admittedly, the defendants have started to put up construction in their property. The construction is going on. The photographs clearly show that, the defendants have purchased some materials to construct the residential house. It is not the case of the plaintiff that, the defendants are violated the building bye-laws. When such being the case, if the interim injunction is granted in favour of the plaintiff at this stage, the defendants will be put into hardship which cannot be compensated in terms of money. Therefore, there is no ground to interfere in the Trail Court's order. Though the Trail Court has said some facts which are not relevant to at this stage, that itself is not a ground to the plaintiff to say that, the plaintiff has made out a prima facie case. As stated herein above, even as per the sketch produced by the plaintiff, from both the ends i.e. after the existence of the Water Canal, the property of the defendants exists. When such being the case, the contention of the plaintiff that, the Surveyor has wrongly measured the suit schedule property as well as the defendants' property is not correct. It is also necessary to say that, in view of the Court Commissioner's Report and as per the sketch produced by the plaintiff himself, it is clear that, the plaintiff has not approached the Court with clean hands. Not approaching with clean hands is also one of the grounds to reject the application. Therefore, there is no interfere in the Trail Court order. Therefore, the point No.1 held in the Negative. 19. POINT NO.2: For the reasons stated herein above while discussing point No.1, the following: - 9 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR ORDER The Miscellaneous Appeal filed by the plaintiff is hereby dismissed with costs. The interim order granted by this Court dated:26.03.2025 is hereby vacated. Orders of in O.S No.86/2025 I.A. No.I dated: 06.03.2025 is hereby confirmed. the Trail Court The Trail Court shall not influence by this order while disposing the merits. suit on merits.” (Emphasis added) In the afore-quoted order of the first appellate Court, it is observed that in terms of the report of the Court Commissioner, which clearly indicates that the defendants have not encroached upon any land of the plaintiff and therefore, rejects the appeal. 7. A perusal at the aforesaid orders of both the civil Court and the first appellate Court would not warrant any interference as they are based upon cogent reasons. In that light, finding no merit in the petition, the petition stands rejected. It is made clear that observations made in the course of the order is only for the purpose of answering the claim of the petitioner seeking temporary injunction, therefore, this shall - 10 - NC: 2025:KHC:21413 WP No. 16940 of 2025 HC-KAR not bind or influence the proceedings pending before any other civil Court or fora. Sd/- (M.NAGAPRASANNA) JUDGE NVJ List No.: 1 Sl No.: 15 CT:SS