Karnataka High Court
Sri M Chandra Reddy vs Sri Harish on 20 June, 2017
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE 2017
BEFORE
THE HON' BLE MR. JUSTICE B.VEERAPPA
M.F.A. No.5202 OF 2015 (CPC)
BETWEEN:
Sri. M.Chandra Reddy,
S/o. Late Muniswamy Reddy,
Aged about 65 years,
R/at No.2491, 17th Main,
HAL II Stage, Indiranagar,
Bangalore-560 008.
... APPELLANT
(By Sri.K.Vijaya Kumar, Advocate)
AND:
1. Sri. Harish,
S/o. Late Papanna,
Aged about 37 years,
Resident of Munnekolala,
Varthur Hobli,
Bangalore East Taluk,
Bangalore-560 037.
2. Sri. Atul Malhotra,
S/o. Brig.S.K.Malhotra,
Aged about 59 years,
R/at 1/21,3rd Floor,
Shanthi Niketan,
New Delhi-110021.
2
3. Smt. Komal Malhotra,
W/o. Late Atul Malhotra,
Aged about 56 years,
R/at 1/21, 3rd Floor,
Shanthi Niketan,
New Delhi -110021.
... RESPONDENTS
(By Sri. P.B. Ajith, Advocate for R1;
Notice to R2 is dispensed with vide Order dated 27-4-2017;
R3 served)
****
This M.F.A. is filed under Order 43 Rule 1(r) of Code of
Civil Procedure, against the order dated 10.6.2015 passed on
I.A.No.1 in O.S.NO.6528/2014 on the file of the 42nd
Additional City Civil and Sessions Judge, Bangalore,(CCH
43) dismissing IA No.1 filed under order 39 Rule 1 and 2 of
CPC and etc.
This Appeal coming on for Admission, this day, the
Court made the following:
JUDGMENT
The plaintiff filed the present Miscellaneous First Appeal against the order dated 10th June 2015 passed on I.A.No.1 in O.S.No.6528/2014 on the file of the 42nd Additional City Civil and Sessions Judge, Bengaluru City (CCH 43), dismissing the application filed by the 3 plaintiff under Order 39 Rule 1 and 2 of Code of Civil Procedure.
The facts of the case are:
2. The plaintiff filed suit in O.S.No.6528/2014 for permanent injunction restraining the defendants either from encroaching or from blocking or from digging road situated towards western side of the suit schedule property, including on the part of suit schedule property by encroachment, morefully described as Yellow, Green and Yellow colours in the layout map in any manner either by defendants themselves or by their agents, contending that the plaintiff is the owner of Survey No.63/1 measuring 02 Acres 07 guntas situated at Thubarahalli village, Varthur Hobli, Bangalore East Taluk, morefully described as suit schedule property. He further contended that based on the registered documents, revenue entries were made in his name. It is the 4 specific case of the plaintiff that he is the owner in possession of the suit schedule property and defendants have no manner of right title or interest over the suit schedule property. Towards the western side of suit schedule property there is a road left and formed by new layout in Survey No.48 during the year 1995. While the suit schedule property ends and belongs to Thubarahalli village and the land in Survey No.48 where a layout of residential houses was formed belongs to Munekolalu village. The existence of the road has been confirmed by the survey conducted by the Department of Survey and etc.
3. The defendants filed written statement denying the entire plaint averments and contending that there is no road exists. Except admitting the ownership of the plaintiff in respect of Survey No.63/1, all other averments made in the plaint were denied and sought for dismissal of the suit.5
4. The plaintiff has also filed I.A. for temporary injunction reiterating the plaint averments contending that he is in possession of the property and defendants are trying to encroach the western portion of the road excluding petitioner's property. The said application was resisted by the defendants reiterating the averments made in the written statement. The Trial Court, considering the entire material on record, by the impugned order dated 10th June 2015 dismissed the application holding that plaintiff has not made out any prima facie case and balance of convenience does not lies in his favour and defendants have proved that they are entitled to vacate the exparte interim order granted by the Trial Court and accordingly, rejected the application for temporary injunction. Hence, the present Miscellaneous First Appeal is filed.
5. I have heard learned counsel for the parties to the lis.6
6. Sri. K.Vijaya Kumar, learned counsel appearing for the appellant vehemently contended that the impugned order passed by the Trial Court rejecting the application filed for temporary injunction is erroneous and contrary to material on record. He further contended that it is the contention of the plaintiff that, in between survey No.63/1 and survey No.48, there is a road. Plaintiff sought injunction in respect of the said road restraining defendants or blocking the said road and the said aspect of the matter has not been considered by the Trial Court.
7. He further contended that the sale deed produced by the defendant No.1 discloses that towards North there is a road. Inspite of sufficient documents produced, the Trial Court proceeded to dismiss the injunction application without considering the material on record. Therefore sought to allow the appeal. 7
8. Per contra, Sri Ajith, learned counsel for the first respondent sought to justify the impugned order.
He specifically contended that there is no road existing as alleged in the plaint. The material documents produced viz., village map of Thubarahalli and Atlas for the land in Sy.No.63/1 and 63/2 discloses that Sy.No.48 and 63 are situated side by side. Therefore he sought to dismiss the appeal.
9. It is undisputed fact that the impugned order passed as long back as on 10.06.2015 till today there is no interim order staying the order passed by the Trial Court rejecting the application for temporary injunction.
10. Now the learned counsel for both the parties submit that the matter is posted for cross examination of P.W.1. Therefore, both counsel fairly submit that the Trial Court may be directed to decide the suit itself. The submission is placed on record.
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11. Without adverting to merits and demerits of the case and the points raised by the learned counsel for both the parties, it is suffice to direct the Trial Court to decide the suit itself as expeditiously as possible, since the matter is posted for cross-examination of P.W.1. Both the parties shall cooperate for early disposal of the suit. The trial Court shall decide the suit based on the oral and documentary evidence to be adduced and produced by the parties without being influenced by any of the observations made in the impugned order of the Trial Court. Accordingly appeal is disposed of.
Sd/-
JUDGE tsn*/kcm