Karnataka High Court
Brigadier V S Madhavan (Retd) vs Sena Vihar Owners Welfare Association on 7 November, 2012
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
M.F.A. No.9767/2012 (CPC)
BETWEEN:
1. Brigadier V.S. Madhavan (Retd.)
S/o late Raman Nair
Aged 70 Years
2. Mrs.Devaki Madhavan
W/o Brigadier V.S.Madhavan
Aged 60 Years
Both are r/at No.1, Senavihar
Kammanahalli Main Road
Bangalore - 560 043. ... Appellants
(By Sriyuths K.N.Purushothaman & Nile A.P., Advocates for
M/s.Carnatic Law Associates, Advocates)
AND:
Sena Vihar Owners Welfare Association (Regd.)
Kammanahalli Main Road
Kalyan Nagar Post
Bangalore - 560 043
Rep. by its President. ... Respondent
(By Sri D.Manmohan, Advocate for C/R)
This appeal is filed under order 43 Rule 1(r) CPC,
against the order dated 06.08.2012, passed on IA.No.1 in
2
O.S.No.814/2012, on the file of XLIII Additional City Civil &
Sessions Judge, Bangalore, rejecting IA.No.1 and etc.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
The trial court has refused to grant an order of temporary injunction. Therefore, plaintiffs are before this court.
2. I have heard Sri.K.N.Purushothaman, learned counsel for appellants/plaintiffs and Sri.D.Manmohan, learned counsel for respondent/defendant.
3. The plaintiffs had sought for an order of temporary injunction interalia contending that vacant space lying between southern side of plot No.1 and boundary wall of Sena Vihar Housing Complex was allotted to them on payment of additional premium of Rs.5,000/-.
4. The learned trial judge on examination of material documents relied upon by plaintiffs has held that the claim of plaintiffs that they were allotted 2000 Sq.ft. land, which is vacant land lying between plot No.1 and the boundary wall of 3 Sena Vihar Housing Complex on payment of additional premium of Rs.5,000/- is prima-facie untenable. The learned trial judge has held that vacant land lying between southern side of plot No.1 and boundary wall is a common area which is meant for use of all the occupants of Sena Vihar Housing complex. The learned trial judge has held that the plaintiffs have not made out a prima-facie case and refused to grant an order of temporary injunction.
5. The learned counsel for appellants/plaintiffs would submit that vacant land lying between southern side of plot No.1 and boundary wall of Sena Vihar Housing complex is a common area; this area belongs to BBMP and defendant cannot construct walking track without obtaining licence from BBMP.
6. The learned counsel for respondent would justify the impugned order to contend that the land abutting plot no.1 and boundary wall is a common area meant for walking track of residents of Sena Vihar Housing complex. 4
7. As could be seen from tenor of submissions made by learned counsel for plaintiffs, plaintiffs have not been consistent in their stance. Before the trial court, plaintiffs have contended that they are the owners in possession of 2000 Sq.ft. land along with vacant space lying towards southern side of plot No.1 and boundary wall of Sena Vihar Housing complex. Before this court, they have contended that this common area belongs to BBMP and walking track cannot be constructed without obtaining licence from BBMP.
8. On hearing learned counsel for parties and after going though the impugned order and also noticing the inconsistent stands taken by appellants/plaintiffs, I am of the considered opinion that the plaintiffs have failed to make out a prima-facie case. Therefore, the learned trial judge was justified in refusing an order of temporary injunction. Even otherwise, if the walking track is constructed in the land lying between southern side of Plot Nos.1,2,3, 21 and 22 and boundary wall of Sena Vihar Housing complex, ultimately, if plaintiffs were to establish their rights over this property, walking track can be removed. Therefore, 5 construction of waling track would not result in irreversible situation. The learned counsel for appellants/plaintiffs submit that walking track cannot be constructed without approved plan from BBMP. If that is so, appellants can agitate the same before BBMP.
9. Therefore, I do not find any merit in the appeal. The appeal is accordingly dismissed.
Sd/-
JUDGE Np/-