Karnataka High Court
Smt Ramakka vs Sri P Thayanna Reddy on 25 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:43095
MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6998 OF 2022(CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7030 OF 2022
IN MFA No. 6998/2022
BETWEEN:
1. SMT RAMAKKA
W/O LATE B H RAMAIAH REDDY
AGED ABOUT 81 YEARS
2. SRI R RAJENDRA REDDY
S/O LATE B H RAMAIAH REDDY
AGED ABOUT 57 YEARS
SRI R PAPAIAH REDDY SINCE DECEASED BY HIS LRS
ALREADY ON RECORD
3. SRI ANANDH
Digitally signed by S/O LATE B H RAMAIAH REDDY
REKHA R
Location: High Court of
AGED ABOUT 53 YEARS
Karnataka
4. SRI MANJUNATH
S/O LATE B H RAMAIAH REDDY
AGED ABOUT 42 YEARS
5. RANI
D/O LATE B H RAMAIAH REDDY
AGED ABOUT 45 YEARS
6. BABY
D/O LATE B H RAMAIAH REDDY
AGED ABOUT 43 YEARS
-2-
NC: 2024:KHC:43095
MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
ALL ARE R/AT NO.108, MANJUNATHA NILAYA
BEHIND HARYANA HANDLOOMS HOUSE
RAMAMURTHY NAGAR MAIN ROAD
RAMAMURTHY NAGAR POST
BANGALORE-560016
...APPELLANTS
(BY SRI. LEELADHAR H.P., ADVOCATE)
AND:
1. SRI P THAYANNA REDDY
S/O LATE C PILLA REDDY
AGED ABOUT 68 YEARS
R/AT BANASWADI VILLAGE,
OLD POST OFFICE ROAD,
BANGALORE-560 043.
2. SRI P CHANDRASHEKAR REDDY
S/O LATE C PILLA REDDY
AGED ABOUT 58 YEARS
R/A HOYSALA NAGAR
T C PALYA MAIN ROAD
BANGALORE-560016
3. SMT SUSHEELAMMA
D/O LATE C PILLA REDDY
AGED ABOUT 73 YEARS
4. SRI A MUNIRAJU REDDY
S/O LATE RAMASWAMY REDDY
AGED ABOUT 56 YEARS
5. SRI R SRIDHAR
S/O LATE RAMASWAMY REDDY
AGED ABOUT 52 YEARS
6. SRI R VISHWANATH
S/O LATE M MUNI REDDY
AGED ABOUT 50 YEARS
7. SRI P HANUMA REDDY
S/O LATE M MUNI REDDY
AGED ABOUT 52 YEARS
-3-
NC: 2024:KHC:43095
MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
8. SMT RAJESHWARI
D/O LATE RAMASWAMY REDDY
AGED ABOUT 48 YEARS
9. SMT SUMITHRA
D/O LATE M MUNI REDDY
AGED ABOUT 48 YEARS
10. SRI VINODH
S/O LATE M MUNI REDDY
AGED ABOUT 46 YEARS
11. SRI NAGAVENAMMA
W/O LATE M MUNI REDDY
AGED ABOUT 75 YEARS
R3 TO R11 ARE R/AT BANASWADI VILLAGE
OLD POST OFFICE ROAD
BANGALORE-560043
12. R ANJILE
D/O LATE B H RAMAIAH REDDY
W/O P JAYARAM REDDY
AGED ABOUT 64 YEARS
R/A NEAR SHIVA PARVATHI
KALYANA MANTAPA
OMBR LAYOUT,
BACK SIDE RELIANCE FRESH SHOP
BANGALORE-560043
...RESPONDENTS
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE FOR C/R1-R11)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 12.09.2022 PASSED ON I.A.
NO.2/2019 IN O.S.NO. 4772/2019 ON THE FILE OF THE
XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, REJECTING I.A. NO.2/2019 FILED UNDER
ORDER XXXIX RULES 1 AND 2 OF CPC.
-4-
NC: 2024:KHC:43095
MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
IN MFA NO. 7030/2022
BETWEEN:
1. SMT. RAMAKKA
W/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 81 YEARS,
2. SRI. R. RAJENDRA REDDY
S/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 57 YEARS,
3. SRI. R. PAPAIAH REDDY
SINCE DECEASED BY HIS LRS.,
SRI. ANANDH,
S/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 53 YEARS,
4. SRI. MANJUNATH
S/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 42 YEARS,
5. RANI
D/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 45 YEARS,
6. BABY
D/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 43 YEARS,
ALL ARE R/AT NO. 108, MANJUNATHA NILAYA,
BEHIND HARYANA HANDLOOMS HOUSE,
RAMAMURTHY NAGAR MAIN ROAD,
RAMAMURTHY NAGAR POST,
BANGALORE-560 016.
...APPELLANTS
(BY SRI. LEELADHAR H.P., ADVOCATE)
-5-
NC: 2024:KHC:43095
MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
AND:
1. SRI. P. THAYANNA REDDY
S/O. LATE C. PILLA REDDY,
AGED ABOUT 68 YEARS,
R/AT BANASWADI VILLAGE,
OLD POST OFFICE ROAD,
BANGALORE-560 043.
2. SRI. P. CHANDRASHEKAR REDDY
S/O. LATE C. PILLA REDDY,
AGED ABOUT 58 YEARS,
R/AT HOYSALA NAGAR,
T.C. PALYA MAIN ROAD,
BANGALORE-560 016.
3. SMT. SUSHEELAMMA
D/O. LATE C. PILLA REDDY,
AGED ABOUT 73 YEARS,
4. SRI. A. MUNIRAJU REDDY
S/O. LATE RAMASWAMY REDDY,
AGED ABOUT 56 YEARS,
5. SRI. R. SRIDHAR
S/O. LATE RAMASWAMY REDDY,
AGED ABOUT 52 YEARS,
6. SRI. R. VISHWANATH
S/O. LATE M. MUNI REDDY,
AGED ABOUT 50 YEARS,
7. SRI. P. HANUMA REDDY
S/O. LATE M. MUNI REDDY,
AGED ABOUT 52 YEARS,
8. SMT. RAJESHWARI
D/O. LATE RAMASWAMY REDDY,
AGED ABOUT 48 YEARS,
-6-
NC: 2024:KHC:43095
MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
9. SMT. SUMITHRA
D/O. LATE M. MUNI REDDY,
AGED ABOUT 48 YEARS,
10. SRI. VINODH
S/O. LATE M. MUNI REDDY,
AGED ABOUT 46 YEARS,
11. SRI. NAGAVENAMMA
W/O. LATE M. MUNI REDDY,
AGED ABOUT 75 YEARS,
R3 TO R11 ARE R/AT BANASWADI VILLAGE,
OLD POST OFFICE ROAD,
BANGALORE-560 043.
12. R. ANJILE
D/O. LATE B. H. RAMAIAH REDDY,
W/O. P. JAYARAM REDDY,
AGED ABOUT 64 YEARS,
R/AT NEAR SHIVA PARVATHI KALYANA MANTAPA,
OMBR LAYOUT,
BACK SIDE RELIANCE FRESH SHOP,
BANGALORE-560 043.
...RESPONDENTS
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE FOR C/R1-R11)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 12.09.2022 PASSED ON
IA NO.3/2019 IN O.S.NO.4772/2019 ON THE FILE OF THE
XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, REJECTING IA NO.3/2019 FILED UNDER
ORDER 39 RULES 1 AND 2 OF CPC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-7-
NC: 2024:KHC:43095
MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for the appellants and also learned counsel for the respondents.
2. Both these appeals are filed against rejection of I.A.Nos.2 and 3, challenging the rejection of I.As filed against the defendants/respondents not to put up any construction in respect of suit schedule 'B' property and also I.A.No.3 from alienating, creating any third party right in respect of suit schedule 'B' property.
3. The right claimed by the plaintiff before the trial Court is that the suit schedule property was part and parcel of Sy.No.23, measuring 28 guntas of Dodda Banaswadi Village, out of 28 guntas landwhich 5 guntas of land were in peaceful possession of Sri. B.H.Ramaiah Reddy, i.e., father of plaintiff Nos.1 to 7 by virtue of registered settlement deed dated 15.01.1957 effected between his brother Sri.H.Krishna Reddy and himself. -8-
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022
4. It is also the case of the plaintiff that a civil suit was filed by Sri.H.Krishna Reddy against Sri.B.H.Ramaiah Reddy for partition in O.S.No.412/1984 for the relief of partition and separate possession of the family properties, which came to be settled between them and the suit schedule property allotted to the share of Sri.B.H.Ramaiah Reddy. Sri.B.H.Ramaiah Reddy obtained a valid plan and license and No Objection Certificate duly sanctioned by the City Municipal Corporation, office of Byappanahalli Village Panchayath to an extent of East to West 68.3 feet North to South 80 feet i.e., suit schedule 'A' property and suit schedule 'B' property for parking their vehicles and other bonafide reasons.
5. It is also the contention of the plaintiff in the suit that defendant Nos.1 to 11 are making unauthorized attempts to encroach the suit schedule 'B' property, which is southern side and tried to put up an unauthorised construction and hence, lodged complaint on 02.07.2016 and 25.06.2019 before the jurisdictional police. It is also -9- NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 the specific case of the plaint that 2 guntas of land situated in Sy.No.22 belongs to defendant Nos.1 to 11 is situated in southern side of suit schedule 'A' and 'B' properties and the defendants are making an attempt to encroach upon the portion of the property which is specifically described in suit schedule 'B' property. In support of the claim made by the plaintiffs, they have also produced the documents of Photostat copy of I.A. under Order 22 Rule 3 of CPC and also O.S.No.412/1984 and the suit by Sri.H.Krishna Reddy against the father of the plaintiffs. It is also the contention that I.A. shows that 5 guntas of land registered under registered settlement deed dated 15.01.1957 was allotted to the share of Sri.B.H.Ramaiah Reddy and also produced a copy of the complaint given by plaintiff Nos.2, 4 and 5 to the Banaswadi Police station on 02.07.2016 and also alleged in the complaint that defendant Nos.1 to 11 have constructed a building by encroaching land 22 x 68.3 feet towards southern side of their 5 guntas of land. It is also taken note that plaintiffs have filed a suit for the relief for
- 10 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 mandatory injunction to remove the illegal unauthorized construction of suit schedule property i.e., to the extent of encroached portion East to West - 68.3 feet and North to South - 22.6 feet by demolishing the existing construction. Plaintiffs have also relied upon the documents which shows the sketch of bricks, construction materials, etc.
6. The defendants appeared and filed written statement contending that they never encroached upon the property of the plaintiffs and they made their specific claim in the written statement contending that in order to claim the relief of declaration and for mandatory injunction they have not produced any documentary proof except the application filed under Order 22 Rule 3 for compromise and also it is contended that no sketch is produced for identification of the property. They have claimed that suit schedule 'A' property belongs to them and suit schedule 'B' property is a portion of suit schedule 'A' property and also contended that they are absolute owners in physical possession of immovable property bearing house line
- 11 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 No.382/4 as described in the schedule A to the plaint and that Sri.B.H.Ramaiah Reddy, who was the husband of plaintiff No.1 and father of defendant Nos.2 to 7 and defendant No.12 died intestate in 2004 leaving behind the plaintiffs to succeed to his estate. It is also contended that claim title on the basis of said right and their specific case is that the said property is part and parcel of Sy.No.23 and also not denies the fact that defendants are owners of the property bearing Sy.No.22. The plaintiffs are not having any right, title in respect of suit schedule 'A' property and they are not in possession of the suit schedule property and the very claim made by them based on the compromise entered between the parties in O.S.No.412/1984, wherein defendants are not parties to the said suit. It is contended that property which has been described as schedule 'A' and schedule 'B' property is not in existence.
7. The allegations made in the plaint also that an attempt is made to encroach upon portion of suit schedule
- 12 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 'B' property is erroneous and contends that the defendants are the absolute owners in so far as the property which they are claiming in Sy.No.22 and also produced the documents of the year 1951 and also the property comes within the jurisdiction of Bengaluru Mahanagara Palike and also contends that property building which is in existence is constructed by the defendants in their property i.e., in Sy.No.22 and also to evidence the said fact they have produced Photostat report to this Court.
8. Learned counsel also vehemently contends that in order to prove the existence of suit schedule 'A' and 'B' properties, there is no any sketch or any document of identification and hence, the trial Court having taken note of the material on record has rightly dismissed the I.As and also relief is sought for the relief of mandatory injunction apart from the relief of declaration and have to prove the very existence of the property and also while seeking the relief of mandatory injunction, they must establish that there is encroachment as contended in the
- 13 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 plaint and hence, the trial Court having taken note of the relief sought in the I.As has rightly dismissed the applications.
9. In reply to the arguments of learned counsel for the appellants, learned counsel for respondents vehemently contends that the very contention of the defendants that not specifically pleaded with regard to the identification of the property cannot be accepted. The learned counsel brought to the notice of this Court para No.7, wherein it is pleaded with regard to the property of the defendants and prior to that para Nos.2, 3 and 4 have pleaded with regard to the prima facie right in respect of their property and also specifically in para No.7 stated that defendant Nos.1 to 11 are not in possession of 2 guntas of land in old Sy.No.22 and new Sy.No.22/1 of Dodda Banaswadi Village and the same is on the southern portion of the plaintiffs' property and except 2 guntas of land, defendant Nos.1 to 11 are not having any inch of land on southern side and also relied upon the documents to that
- 14 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 effect and those documents have not been discussed by the trial Court while passing such an order. The learned counsel also vehemently contends that the trial Court also committed error in making an observation that nowhere in their plaint specifically pleaded as to when exactly defendant Nos.1 to 11 have encroached the suit schedule 'B' property and what is the nature of the construction, if any filed by the defendant Nos.1 to 11 in suit schedule 'B' property and that the same is erroneous and it requires interference.
10. Having heard the learned counsel for appellants and also learned counsel for respondents and also taking into note of specific contention of the plaintiffs and defendants both are claiming right in respect of the distinct property, plaintiffs' claim in respect of property bearing No.23 and also it is a specific case that in Sy.No.23 totally which was measuring 28 guntas and also contend that 5 guntas was allotted to them and out of 5 guntas also a claim was made by the brother of plaintiffs
- 15 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 by filing original suit in O.S.No.412/1984, wherein the matter was also settled.
11. It is also the claim of the plaintiffs that the suit schedule 'A' property was allotted in favour of the plaintiffs in the said settlement and also relies upon order copy produced before the Court i.e., Order 22 Rule 3 of CPC, wherein the matter was compromised and also relies upon some of the photographs. The defendants claim that they are the owners of the property bearing Sy.No.22 and also relief sought in the plaint by the plaintiff is not only for the relief of declaration to declare that plaintiffs are absolute owners in possession of southern vacant portion of suit schedule 'B' property measuring East to West - 68.3 feet and North to South - 22.6 feet of the suit schedule property, which is part and parcel of suit schedule 'A' property and also mandatory injunction is sought to the very same existence stating that to demolish the existence structure at their cost and restore the same to the plaintiffs. Having taken note of these two facts, it is clear
- 16 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 that plaintiffs are seeking relief of declaration in respect of suit schedule 'B' property, as the same is part of suit schedule 'A' property and also admitted that there is an illegal encroachment and construction and sought for mandatory injunction also.
12. When such being the case, the relief sought before the trial Court is with regard to not to put up the construction and also not to alienate the property. When there is a claim with regard to Sy.No.23 by the plaintiffs and defendants claiming that old Sy.No.22 and new Sy.No.22/1 and also the plaintiffs have pleaded that defendants are also having Sy.No.22 on the southern side of the property and also that relief is sought for relief of mandatory injunction that there is an illegal construction and then the plaintiffs have to prove the very identity of the property and also if any illegal construction is made by the defendants in respect of the property of the plaintiffs i.e., in Sy.No.23, unless a prima facie material is placed before the Court, question of granting any relief of
- 17 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 temporary injunction as sought and already construction was made by the defendants and also relief is sought i.e., mandatory injunction to remove the same and hence, granting of relief of not to put up construction does not survive for consideration.
13. However, it is the contention of the learned counsel appearing for appellants that at least trial Court ought to have granted the relief of not to alienate the same and the fact that already construction has been made in suit schedule 'B' property which is part of suit schedule 'A' property that is the specific pleadings of the plaintiffs may not establish the identity of the property is concerned, except the plaintiffs relying upon the settlement in original suit in O.S.No.412/1984. With regard to identity of the property is concerned, no documents of sketch or any survey sketch or plan is placed before the trial Court and when such being the case, question of granting any relief not to alienate the same also does not arise. No doubt learned counsel
- 18 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 appearing for the appellants would contend that earlier suit was filed by one Munireddy against the appellants and the said suit was dismissed and also appeal was dismissed.
14. There is also no dispute with regard to the title in respect of suit schedule 'A' property is concerned and having taken note of the relief sought only in respect of declaration of suit schedule 'B' property and the relief for mandatory injunction and hence, granting relief and dismissal of suit filed by Munireddy against the plaintiffs would not come to the aid even for granting relief not to alienate and unless the property is identified and prima facie establish that there is encroachment by the defendants in respect of Sy.No.23, which the plaintiffs claim, question of granting relief not to alienate also does not arise, since the defendants is not claiming any right in respect of Sy.No.23 and they are claiming only in respect of old Sy.No.22, new Sy.No.22/1 and hence, question of granting the other relief of not to alienate also does not
- 19 -
NC: 2024:KHC:43095 MFA No. 6998 of 2022 C/W MFA No. 7030 of 2022 arise and it is the matter of the trial to be decided before the trial Court for identification of property that whether there is any encroachment in Sy.No.23 or defendants have put up construction in old Sy.No.22, new Sy.No.22/1. Hence, no grounds are made to grant any such relief. In view of the discussions made above, I pass the following:
ORDER
(i) Both appeals are dismissed.
(ii) However, taking into note that suit is of the year 2019 and both the parties are claiming distinct property and identification of the property is required and hence, the trial Court is directed to dispose of the suit within a time bound period of one year.
(iii) The respective appellants and respondents and their respective counsel are directed to assist the trial Court in disposal of the time bound period of one year.
SD/-
(H.P.SANDESH) JUDGE RR List No.: 1 Sl No.: 52