The High Court
Case Details
- 1 - NC: 2025:KHC:2369 MFA No. 7176 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO. 7176 OF 2024 (CPC) BETWEEN: 1. MUNISHAMANNA S/O LATE GIDDAPPA AGED ABOUT 54 YEARS R/AT CHEEMANDAHALLI VILLAGE KASABA HOBLI, HOSAKOTE TALUK BENGALURU RURAL DISTRICT-562114. …APPELLANT (BY SRI. B. RAMESH, ADVOCATE) AND: 1. SMT. SAROJAMMA W/O LATE MUNIKRISHNAPPA AGED ABOUT 73 YEARS R/AT CHEEMANDAHALLI VILLAGE KASABA HOBLI, HOSAKOTE TALUK BENGALURU RURAL DISTRICT-562114. (BY SMT. K.UMADEVI & SMT. T.N.GAYATRI, ADVOCATES FOR C/R) …RESPONDENT THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 05.09.2024 PASSED ON I.A.NO.1 IN O.S.NO.589/2024 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSAKOTE, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2369 MFA No. 7176 of 2024
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH JUDGMENT Heard learned counsel for the appellant and learned counsel for the caveator-respondent. 2. This appeal is filed challenging the order passed by the Trial Court on I.A.No.1, wherein temporary injunction is granted in favour of the respondent/plaintiff restraining the appellant/defendant from putting up further construction over suit schedule ‘B’ property, pending disposal of the suit. 3. The factual matrix of the case of the plaintiff while seeking the relief of temporary injunction before the Trial Court is that she is the absolute owner of all that piece and parcel of the property bearing Sy.No.44, old Sy.No.44/P13 and new Sy.No.83 measuring to an extent of 12½ guntas out of the total extent of 2 acres 2 guntas on the southern side of the suit schedule ‘A’ property consisting of a newly constructing structure on it without having roof measuring 1,001 feet of the structure. The suit schedule ‘B’ property is the part and parcel of the suit schedule ‘A’ property and sought for the relief of temporary injunction. - 3 - NC: 2025:KHC:2369 MFA No. 7176 of 2024 4. While seeking such relief, it is pleaded before the Trial Court that plaintiff is the absolute owner in possession and enjoyment of the suit schedule ‘A’ property having acquired the same by way of inheritance. The defendant without any right and title is trying to interfere with portion of 12½ guntas i.e., suit schedule ‘B’ property on the western side of the suit schedule ‘A’ property and planting small coconut tree and on southern side illegally constructed the structure. Hence, plaintiff lodged a complaint before the jurisdictional police and also filed an application before the Deputy Commissioner, Bengaluru Rural District on 31.07.2024. Hence, prayed the Court to grant the relief of temporary injunction. 5. In pursuance of the suit summons, the defendant appeared and filed written statement contending that averment made in the plaint is not correct and plaintiff is in possession of excess of land what she had claimed in the present suit and the plaintiff as on today is in possession of 2 acres 36 guntas and she herself has encroached a land measuring to an extent of 34 guntas which is in possession of adjacent lands which are granted in favour of third parties as claimed by the plaintiff in the present suit and the plaintiff is in possession of 2 acres 36 - 4 - NC: 2025:KHC:2369 MFA No. 7176 of 2024 guntas as on today. Hence, the suit filed by the plaintiff is devoid of merits and prayed the Court to dismiss the application. 6. The Trial Court having considered the grounds urged in the application as well as the statement of objection, formulated the points whether the plaintiff has made out prima facie case in her favour, whether balance of convenience lies in her favour and if temporary injunction is not granted who will suffer hardship and injustice. 7. The Trial Court having considered the material on record, comes to the conclusion that plaintiff has made out a prima facie case that there is an encroachment and comes to the conclusion that by virtue of the grant made by the Tahsildar as per Saguvali Chit dated 30.04.1998, the plaintiff is in possession and enjoyment of the suit schedule property. On perusal of the Haddubasthu sketch produced by the plaintiff, it clearly goes to show that the person who is in possession of resurvey No.44 has encroached an extent of 12½ guntas in suit ‘B’ schedule property and also observed that considering the photographs, it goes to show that the defendant is in - 5 - NC: 2025:KHC:2369 MFA No. 7176 of 2024 possession of adjacent property of the plaintiff. Therefore, the Trial Court comes to the conclusion that ‘B’ schedule property was encroached by the defendant, but the same was denied as false. If the defendant is allowed for further construction by encroaching the suit schedule ‘B’ property, the plaintiff may be put to great loss and injustice. Hence, granted the relief of temporary injunction. Being aggrieved by the said order passed by the Trial Court, the present appeal is filed before this Court. 8. The main contention of the learned counsel for the appellant before this Court is that, as pleaded before the Trial Court in the written statement, the defendant is in excess possession of the property to the extent of 2 acres 3 guntas, though land was granted only to the tune of 2 acres 2 guntas. When such argument was made before this Court, with the consent of learned counsel for both the parties, Commissioner was appointed and the Commissioner has also filed the report before this Court. Now, learned counsel appearing for the appellant would vehemently contend that even as per the land shown in the Commissioner report, claim of the appellant/defendant is 2 acres, but the area in occupation is to - 6 - NC: 2025:KHC:2369 MFA No. 7176 of 2024 the extent of 2 acres 30 guntas. Learned counsel also would vehemently contend, though it is stated by the Commissioner that shed is in the land belonging to the plaintiff and the same is only maximum to the extent of 0.00½ gunta and not to the extent of 12½ guntas as contended by the plaintiff. Hence, the Trial Court committed an error in coming to such conclusion that ‘B’ schedule property was encroached by the appellant and the very impugned order passed by the Trial Court is not maintainable and it requires interference of this Court. 9. Per contra, learned counsel for the caveeator- respondent/plaintiff would contend that the property granted is clearly mentioned in the sketch i.e., ‘ACIJKM’ to the extent of 2 acres 2 guntas and report is also very clear that portion of the property was encroached by the defendant. Hence, the Trial Court rightly granted the relief of temporary injunction not to put up any construction. The counsel also would contend that already phodi work was done with regard to the said area is concerned. Hence, it does not require any interference. 10. In reply to the argument of the learned counsel for the caveator-respondent, learned counsel appearing for the - 7 - NC: 2025:KHC:2369 MFA No. 7176 of 2024 appellant would vehemently contend that even though the land is shown as ‘ACIJKM’ to the extent of 2 acres 2 guntas, but in point No.4, it is mentioned that they are in possession to the extent of 2 acres 5 guntas as per ‘BDHLNV’ in respect of very same Sy.No.44. The counsel also brought to notice of this Court that extent of 4 guntas was in possession of the defendant i.e., ‘DEFGH’ and having taken note of said fact into consideration, it is very clear that plaintiff is in excess possession of the property. 11. Having heard learned counsel appearing for the appellant and learned counsel appearing for the caveator- respondent and also considering the Commissioner report as well as the very contentions of the respective counsel, the points that would arise for consideration of this Court are: (i) Whether the Trial Court committed an error in granting the relief of temporary injunction in favour of the plaintiff and whether it require interference of this Court? (ii) What order? - 8 - NC: 2025:KHC:2369 MFA No. 7176 of 2024 Point No.(i) 12. Having heard learned counsel appearing for the appellant/defendant and learned counsel appearing for caveator- respondent/plaintiff, it is not in dispute that land was granted in favour of the plaintiff to the extent of 2 acres 2 guntas. The report of the Commissioner is very clear identifying the property which was granted in favour of the respondent/plaintiff and the same is phoded and shown as ‘ACIJKM’. Hence, the report of the Commissioner is very clear with regard to the fact that the appellant is claiming the land i.e., ‘BNOPQRSTUV’ which belongs to the defendant in Sy.No.44, old Sy.No.44/P5 and claim is to the extent of 3 acres. But, as per report, the possession and enjoyment, the same is only to the extent of 2 acres 30 guntas. No doubt, the Commissioner is also appointed, the excess land which is in possession of the plaintiff i.e., on the northern side of the property of the plaintiff is not claimed by the appellant/defendant and the same is very adjacent to ‘Halla’. The Court has to take note of granted land which is demarcated as ‘ACIJKM’. Having taken note of the said area which is - 9 - NC: 2025:KHC:2369 MFA No. 7176 of 2024 demarcated, portion of the said area is encroached which has been phoded after grant made in favour of the plaintiff. 13. When such material is available on record and the red line which is shown in the survey sketch comes within the area of ‘ACIJKM’ i.e., in between ‘AB’ and ‘ABN’, the same is clearly disclosed in the report of the Commissioner and also no specific report is given as regards what is the extent of encroachment, but the fact is that construction made by the defendant is stalled, in view of the order passed by the Trial Court that the construction made by the appellant/defendant comes within the area of ‘ACIJKM’ and it is very clear that shed is constructed in the encroached area of the plaintiff. When such being the case and material available on record, the report of the Commissioner clearly discloses with regard to the encroachment made by the defendant. The total area of the land of the defendant is shortfall to the extent of 10 guntas instead of 3 acres. Even if the plaintiff is in possession of any additional land, the Court has to take note of the granted area which is mentioned in the report and the Commissioner report clearly disclose that within the area of ‘ACIJKM’ itself, - 10 - NC: 2025:KHC:2369 MFA No. 7176 of 2024 construction of shed is taken up by the appellant/defendant. When such being the case, I do not find any error committed by the Trial Court and the Trial Court comes to the conclusion that with regard to the portion of the property which is mentioned as ‘B’ schedule property, interim relief is granted. The encroachment of 12½ guntas of land has to be considered during the course of trial and at this juncture, the Court cannot decide the same and the matter requires trial with regard to the encroachment is concerned. But, prima facie, the construction taken up by the defendant comes within the area of ‘ACIJKM’ and in terms of the survey report, portion of construction is in the said area and hence, defendant is restrained from putting up any construction in the area which is clearly mentioned in the report filed by the Commissioner i.e., the portion demarcated as ‘ACIJKM’ and the order impugned is modified to that extent. Accordingly, I answer point No.(i) as ‘partly affirmative’. Point No.(2) 14. In view of the discussion made above, I pass the following: - 11 - NC: 2025:KHC:2369 MFA No. 7176 of 2024
Decision
ORDER (i) The appeal is allowed in part. (ii) The appellant is directed not to put up any construction in the area which is identified by the Commissioner in the sketch as ‘ACIJKM’ and the same is phoded. (iii) The Trial Court is directed to dispose of the suit within a time bound period of one year from the date of receipt of copy of this order and both the plaintiff and the defendant and their respective counsels are directed to assist the Trial Court in disposal of the case within the time bound period of one year. (iv) The respective counsels of the parties are directed to produce copy of this order to the Trial Court, forthwith to enable the Trial Court to dispose of the matter in a time bound period. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 46