MRS. REGINA THOBIASARLUSAMY v. MR. SHIVAPPA

MR. VENUGOPAL @ MESTRU S/O MR. VENKATAPPA AGED ABOUT 45 YEARS RESPONDENTS NOS.1 TO 5 ARE R/A DODDAJALA VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK-562157. (BY T. CAVEATOR/RESPONDENT NO.4) PRAKASH SRI. …RESPONDENTS HEBBAR, ADVOCATE FOR THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED

05.09.2024 PASSED ON IA NO. 7, IN OS NO.102/2012, FILED BY THE PETITIONER UNDER SECTION 151 OF CPC ON THE FILE OF THE HON'BLE ADDL. CIVIL JUDGE AND JMFC, DEVANAHALLI PRODUCED HEREWITH AS ANNEXURE-A AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ ORAL ORDER The plaintiff in O.S.No.102/2012 pending trial before the Additional Civil Judge and JMFC, Devanahalli (henceforth referred to as 'Trial Court') has filed this writ petition challenging the correctness of an order dated 05.09.2024 by which, an application (I.A.No.7) filed by her under Section 151 of the Code of Civil Procedure, 1908 (henceforth referred to as - 3 - NC: 2024:KHC:44871 WP No. 29272 of 2024 'CPC') for a direction to the Station House Officer, Chikkajala police station to provide protection to implement the order dated 27.06.2012 was rejected.

The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the plaintiff, while the respondents were the defendants before the Trial Court.

A suit in O.S.No.102/2012 was filed for perpetual injunction in respect of a property bearing old Sy.No.46/P3-P1, New No.254 situate at Doddajala village, Jala Hobli, Bengaluru North Taluk, measuring 1-25 acres. The plaintiff in the suit claimed that she purchased the suit property lawfully in terms of a sale deed dated 10.05.2000 and that she was placed in possession. She claimed that revenue records of the suit property were transferred to her name. She claimed that the defendant Nos.1 to 3 having sold the suit property attempted to interfere with her possession and therefore, she was advised to seek for perpetual injunction against them to restrain them from interfering with her possession and from demolishing the compound wall constructed around the suit property. Along - 4 - NC: 2024:KHC:44871 WP No. 29272 of 2024 with the suit, the plaintiff filed two applications under Order XXXIX Rules 1 and 2 of CPC for interim injunction to restrain the defendants from interfering with her possession and from demolishing the compound wall constructed around the suit property.

The suit was contested by the defendants inter alia contending that the property claimed by the plaintiff is different from the property claimed by them. Applications for interim injunction were also contested by them.

5. The Trial Court after considering the contentions of both the parties, allowed the applications in terms of the order dated 27.06.2012 restraining the defendants from interfering with the possession of the plaintiff and from demolishing the compound wall constructed around the suit property.

Later, defendant No.1 filed M.A.No.10/2014 before the Senior Civil Judge and JMFC, Devanahalli (henceforth referred to as 'Appellate Court') challenging the aforesaid order of injunction granted by the Trial Court. The Appellate Court in terms of the order dated 18.02.2015 rejected the appeal. - 5 - NC: 2024:KHC:44871 WP No. 29272 of 2024

Following this, the plaintiff filed an application (I.A.No.7) under Section 151 of CPC for a direction to the Station House Officer, Chikkajala police station to provide protection to implement the order dated 27.06.2012. In the affidavit accompanying the application, it was claimed that on

30.05.2018, the defendants tried to interfere with the possession of the plaintiff and despite resistance, they demolished the compound wall and also erected some structures. She claimed that she lodged a complaint against the defendants before the jurisdictional police, who registered Crime No.95/2018. She claimed that the police did not take any action against the defendants. Thereafter, she filed an application under Order XXXIX Rule 2A read with Section 151 of CPC to punish the defendants for violating the order of injunction granted. She contended that the defendant Nos.1 and 4 filed a counter suit against her for declaration and other reliefs, which is pending consideration before the Principal Senior Civil Judge at Devanahalli. However, the defendants could not obtain any interim orders in the said suit. She claimed that the defendants kept quiet for some time but later attempted to disturb her possession on 13.08.2024. She - 6 - NC: 2024:KHC:44871 WP No. 29272 of 2024 claimed that the defendants along with others demolished the compound wall and also constructed new structures. She again approached the jurisdictional police on 16.08.2024, who registered Crime No.171/2024 but yet again, did not take any action.

The defendant No.4 contested the application contending that the allegation made against the defendants of violating the order of injunction was far from the truth. He also claimed that he was in possession of the suit property.

The Trial Court after considering the contentions, rejected the application in terms of the impugned order on the ground that the plaintiff had already filed an application under Order XXXIX Rule 2A read with Section 151 of CPC alleging that the defendants had pulled down the compound wall and that the said application was pending consideration. It also perused the photographs produced by the plaintiff and held that the photographs did not indicate that the alleged acts were committed by the defendants. It held that though the plaintiff had installed CCTV, the footages of the CCTV were not - 7 - NC: 2024:KHC:44871 WP No. 29272 of 2024 produced before the Court. Consequently, it rejected the application for grant of police protection.

Being aggrieved by the said order, the plaintiff is before this Court in this writ petition.

The learned Senior counsel the plaintiff contended that when once the Trial Court had granted order of injunction, which was upheld by the Appellate Court, it was the duty of the defendants as well as the jurisdictional police to ensure compliance of the order. He submits that the Trial Court has prima-facie found that the plaintiff is in possession of the suit property and therefore, the defendants cannot be allowed to take law into their hands to dispossess the plaintiff from the suit property. He contends that having regard to the strife between the plaintiff and the defendants over the suit property, the apprehension placed before the Trial Court was just enough to invoke the powers of the Court under Section 151 of CPC to compel it to direct the jurisdictional police to provide protection to implement the order dated 27.06.2012.

The learned counsel for the defendant No.4 contended that the defendant No.4 is in possession of the - 8 - NC: 2024:KHC:44871 WP No. 29272 of 2024 property that was conveyed to him by the defendant Nos.1 to

3. He contends that there is a dispute regarding identity of the property and the same needs to be determined after a trial in the suit. He contends that allowing the application for grant of police protection may result in dispossessing the defendant No.4 from the suit property. He therefore, contends that the Trial Court was justified in refusing to grant any direction to the jurisdictional police.

I have considered the submissions of the learned Senior counsel for the plaintiff as well as the learned counsel for the defendant No.4.

In order to ascertain the nature of the development in the suit schedule property, this Court vide order dated

04.11.2024, appointed a Commissioner to inspect the suit property and report about the development in the suit property.

The Commissioner has submitted his report, today, along with the photographs of the construction as on

05.11.2024. He has reported that on the southern side of the property, a compound wall is constructed using readymade - 9 - NC: 2024:KHC:44871 WP No. 29272 of 2024 cement slabs and the said construction is put up within one week. He has found that a trench was laid on the southern side and cement bricks and M-sand were stored in the eastern side of the property. He has also found that some stone slabs were freshly installed. He has also reported that fencing around the property is installed recently. He has also reported that some portion of the compound, zinc sheets are fencing towards south and the compound wall appears to be recently laid. He has also reported that a gate is installed in the property, which is old and a shed is constructed on the south west corner. He has reported that the hind portion of the shed is covered by a old sheet, while front portion is newly constructed.

Therefore, it appears that some attempt is made to put up some construction by some persons, which could either be the plaintiff or the defendant No.4. This makes it more than apparent that there is an attempt at one-upmanship between the plaintiff and the defendant No.4 to claim possession of the suit property. Now that the Trial Court had granted order of interim injunction restraining the defendants from interfering with the possession of the plaintiff in the suit schedule property - 10 - NC: 2024:KHC:44871 WP No. 29272 of 2024 and also restraining the defendants from demolishing the compound wall, the said order needs to be given effect to.

The learned Senior counsel the plaintiff submitted that the plaintiff shall not put up any construction of a permanent nature in the suit property until disposal of the suit. He contends that there would be no difficulty, if the jurisdictional police is directed to grant need based protection to implement the order dated 27.06.2012 passed by the Trial Court.

Having regard to the above, since the plaintiff is found to be prima facie in possession of the suit property by the Trial Court and the Appellate Court, such possession has to be protected until disposal of the suit. The report of the Commissioner throws light on the fact that some persons were putting up construction in the suit property. Since it is the claim of the plaintiff that the defendants have pulled down the compound wall that existed and have now installed a cement slab compound wall, it is appropriate to ensure that the defendants do not in any manner overreach the orders passed by the Trial Court by taking law into their hands. In that view - 11 - NC: 2024:KHC:44871 WP No. 29272 of 2024 of the matter, the impugned order passed by the Trial Court refusing to grant an order directing the jurisdictional police to provide protection warrants interference.