Karnataka High Court
Somanagouda S/O Basangouda ... vs Smt. Dyamavva @ Shantavva W/O ... on 30 May, 2013
Author: B.S Patil
Bench: B.S.Patil
WP 76034/2013
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 30TH DAY OF MAY 2013
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.76034/2013 (GM-CPC)
BETWEEN:
Somanagouda,
S/o Basangouda Kallappagoudar,
Age: 65 years, Occ: Agriculture,
R/o Benakankonda,
Tq: Ranebennur, Dist: Haveri. ..PETITIONER
(By Sri Laxman T.Mantagani, Adv.)
AND:
1. Smt. Dyamavva @ Shantavva,
W/o Shivabasangouda
Kallappagoudar,
Age: 65 years,
Occ: Household work.
2. Smt. Susilavva,
D/o Shivabasangouda
Kallappagoudar,
Age: 52 years,
Occ: Household work.
3. Smt. Anasuya,
D/o Shivabasangouda
Kallappagoudar,
Age: 53 years,
Occ: Household work.
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WP 76034/2013
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All are R/o Benakankonda,
Tq: Ranebennur, Dist: Haveri. ..RESPONDENTS
(By Sri M.H.Patil, Adv. for C/R-2)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to set aside the impugned order
passed by the Addl. Senior Civil Judge, Ranebennur in Misc.
Appeal No.37/2012 dated 05.01.2013 vide Annexure-F.
This writ petition is coming on for Preliminary Hearing,
this day the Court made the following:-
ORDER
1. In a suit for injunction filed by the petitioner, the Trial Court on an application filed by the petitioner-plaintiff granted an order of temporary injunction restraining the defendants from obstructing the plaintiff from putting up construction of the collapsed wall which exists in between the property of the plaintiff and the defendants. Aggrieved by the same, defendants-resaopndents herein filed M.A.No.37/2012 before the lower Appellate Court. The lower Appellate Court has set aside the order passed by the Trial Court and has directed both the parties to maintain status quo. Aggrieved by this order of the lower Appellate Court, the present writ petition is filed.
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2. I have heard the learned Counsel for both parties and perused the orders passed by the Courts below and the pleadings.
3. Plaintiff claims that the collapsed wall absolutely belongs to him. Whereas, defendants assert that the wall in question belongs to them. The fact remains that the wall in question bifurcates the properties of the plaintiff and the defendants. It is also not in dispute that a portion of the wall has collapsed. This is evident from the report of the Court Commissioner. Whether the wall belongs to the plaintiff or the defendants is not the matter for consideration here, nor is it an issue at this stage as to whether the plaintiff has right over the wall.
4. Pending disposal of the suit, plaintiff wanted to put up construction of the collapsed wall to prevent further damage to the wall and also to ensure proper enjoyment of the property by both parties. While the Trial Court after appreciating the prima facie case made out by the plaintiff has permitted him to put up construction of the wall pending disposal of the suit, the lower Appellate Court has interfered with the said order on the ground that the report of the Commissioner should not 3 WP 76034/2013 4 have been relied upon as the evidentiary value of the same was yet to be examined at the time of final disposal of the suit.
5. Whether the report of the Commissioner has to be belived or not is undoubtedly the matter which has to be taken up at the stage of final adjudication. But, prima facie, it is clear that a portion of the wall bifurcating the two properties has collapsed and the plaintiff intends to construct the collapsed portion to prevent further damage.
6. During the course of arguments, learned Counsel for the plaintiff-petitioner submits that in case he looses in the suit, he will not lay any claim over the disputed wall. This stand of the plaintiff is fair.
7. I am not able to appreciate how any prejudice would be caused to the defendants if the collapsed portion of the wall is allowed to be constructed so as to prevent further damage to the wall and also to ensure proper enjoyment of the property by both parties during the pendency of the suit. Hence, in my considered view, the lower Appellate Court has committed serious illegality in interfering with the order passed by the Trial Court.
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8. Therefore, this writ petition is allowed. The impugned order of the lower Appellate Court is set aside. The order of temporary injunction passed by the Trial Court is restored making it clear that the plaintiff shall not claim any exclusive right over the wall, in case he fails in the suit.
Sd/-
JUDGE KK 5