Karnataka High Court
Sri B Ramaiah vs Smt G K Deepika on 18 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:2368
MFA No. 7761 of 2022
C/W MFA No. 7759 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 7761 OF 2022 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7759 OF 2022 (CPC)
IN MFA NO.7761/2022
BETWEEN:
SRI. B. RAMAIAH,
S/O SRI. BETTAIAH,
AGED ABOUT 56 YEARS,
R/AT NO.150, 4TH MAIN ROAD,
10TH BLOCK, 2ND STAGE,
NAGARABHAVI MAIN ROAD,
BENGALURU - 560 072.
...APPELLANT
Digitally signed (BY SRI. D.R. RAJASHEKHARAPPA, ADVOCATE)
by SHARANYA T
Location: HIGH
COURT OF AND:
KARNATAKA
SMT. G.K. DEEPIKA,
W/O LOKESH K REDDY
AND D/O LATE V. KRISHNA REDDY,
AGED ABOUT 30 YEARS,
R/AT HOUSE NO. 40,
2ND MAIN ROAD, RMV II STAGE,
VENKATACHARI NAGARA,
BENGALURU - 560 094.
...RESPONDENT
(BY SRI. SRINATH P., ADVOCATE FOR C/R)
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NC: 2024:KHC:2368
MFA No. 7761 of 2022
C/W MFA No. 7759 of 2022
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED.18.08.2022 PASSED ON
IA NO.1 IN O.S.NO.4449/2021 ON THE FILE OF THE LII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
(CCH-53), DISMISSING IA NO.1 FILED U/O.39 RULE 1 AND 2
R/W SEC.151 OF CPC.
IN MFA NO.7759/2022
BETWEEN:
SRI. B. RAMAIAH,
S/O SRI. BETTAIAH,
AGED ABOUT 56 YEARS,
R/AT NO.150, 4TH MAIN ROAD,
10TH BLOCK, 2ND STAGE,
NAGARABHAVI MAIN ROAD,
BENGALURU - 560 072.
...APPELLANT
(BY SRI. D.R. RAJASHEKHARAPPA, ADVOCATE)
AND:
SMT. G.K. DEEPIKA,
W/O LOKESH K REDDY
AND D/O LATE V. KRISHNA REDDY,
AGED ABOUT 30 YEARS,
R/AT HOUSE NO. 40,
2ND MAIN ROAD, RMV II STAGE,
VENKATACHARI NAGARA,
BENGALURU - 560 094.
...RESPONDENT
(BY SRI. SRINATH P., ADVOCATE FOR C/R)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED.18.08.2022 PASSED ON
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NC: 2024:KHC:2368
MFA No. 7761 of 2022
C/W MFA No. 7759 of 2022
IA NO.II IN O.S.NO.4449/2021 ON THE FILE OF THE LII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
(CCH-53), ALLOWING THE IA NO.2 FILED U/O.39 RULE 4 OF
CPC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed against the order passed on I.A.No.1 and 2, i.e. the applications filed under Order 39 Rule 1 and 2 and under Order 39 Rule 4 read with Section 151 of CPC seeking vacation of the interim order granted earlier.
2. Factual matrix of the case is that the plaintiff while seeking relief of permanent injunction on OS No.4499/2021 contended that the plaintiff is the absolute owner of the property bearing Nos.5 and 10 carved out of Sy.No.42 of Nagarabhavi village, Yeshwanthapura Hobli, Bengaluru North Taluk. The said property originally belonging to Sri.Sanjeevappa. The said Sri.Sanjeevappa had sold the property to Sri.B.V.Lakshminarayana vide sale deed dated 30.10.1980 and the said property was further gifted in favour of his son Sri.B.L.Keshava Kumar vide gift deed dated 15.12.2011. The said Sri.B.L.Keshava Kumar has sold the property to the plaintiff vide registered sale deed dated 24.02.2016. The plaintiff while seeking relief of permanent -4- NC: 2024:KHC:2368 MFA No. 7761 of 2022 C/W MFA No. 7759 of 2022 injunction filed an application interalia seeking relief of temporary injunction contending that the plaintiff is in peaceful possession and enjoyment of the suit schedule property as absolute owner. As regard the property bearing Nos.4 and 11, which are situated adjoining to his property is belonging to the defendant and the defendant encroached upon his property to the extent of 3 feet. Defendant has got complete disregard to the right of plaintiff. The counsel for plaintiff contends that the plaintiff has got prima facie case for grant of injunction order and there is balance of convenience in favor of the plaintiff and if the order of injunction is not granted, the plaintiff would be put to irreparable harm.
3. The defendant has not filed any separate objections, but has filed only a written statement and prayed the court to adopt his written statement as objections to I.A.No.1. The main contention of the defendant in the written statement is that father of the defendant namely Sri.V.Krishna Reddy filed suit in OS No.6836/2006 for permanent injunction against the plaintiff and another before CCH-13. One Krishna had filed OS No.3174/2006 against the vendor of the plaintiff and others praying for the relief of enforcement of contract in -5- NC: 2024:KHC:2368 MFA No. 7761 of 2022 C/W MFA No. 7759 of 2022 respect of the said property bearing Nos.4 and 11. The suit bearing OS No.6836/2006 came to be decreed vide judgment dated 16.09.2008. The decree in OS No.6836/2006 was not challenged by the plaintiff and it has attained finality. The plaintiff has nothing to do with the defendant's property. The suit bearing OS No.3174/2006 came to be dismissed. One Sri.Krishna Reddy had preferred RFA No.1884/2011 before this Court. The father of the defendant Sri.Krishna Reddy has also preferred RFA Crob No.10/1012. The vendor Smt.Manjula also preferred RFA Crob No.11/2012 against the Krishna and others. This Court clubbed all the appeals and passed a common order. The appeal preferred by the Krishna came to be dismissed on 01.02.2021 by confirming the judgment and decree passed in OS No.3174/2006. Being aggrieved by the said order Krishna has filed special leave appeal No.8277/2021 before Hon'ble Supreme Court of India and the same was also dismissed. Plaintiff purchased the suit 'A' schedule property from Sri.Keshav Kumar during the pendency of the above proceedings on 24.02.2016. The plantiff does not have any right with respect to the property belonging to the defendant. Subsequent to the purchase of the property, the father of the -6- NC: 2024:KHC:2368 MFA No. 7761 of 2022 C/W MFA No. 7759 of 2022 defendant namely Sri.V.Krishna Reddy erected a compound wall and got perfected his right and title over the property in question since 09.03.2006 by continuous and uninterrupted possession over the purchased property. During the pendency of the RFA No.1884/2011, father of the defendant died. The defendants and other has succeeded to the estate of late Sri.V.Krishna Reddy. It is contended that Sri.V.Krishna Reddy had erected the compound wall without making any encroachment over the property of the plaintiff and the judgment and decree in OS No.6836/2006 is binding upon the plaintiff. The counsel contends that the defendant has already got judgment and decree in his favour, so the question of granting any relief does not arise. The Trial Court having considered the points, Whether the plaintiff has made out prima facie case? Whether there is any balance of convenience lies in his favour? Whether any irreparable harm would be caused to the plaintiff? Whether the defendant made out a case to allow I.A.No.2 to vacate the interim order? The Trial Court having consider the pleadings of the both the counsels and also on perusal of the material on record, dismissed the application -7- NC: 2024:KHC:2368 MFA No. 7761 of 2022 C/W MFA No. 7759 of 2022 filed by the plaintiff and allowed the application filed by the defendant and vacated the interim order.
4. Being aggrieved by the order, these two appeals are filed before this Court. The main contention of learned counsel for appellant is that the Trial Court committed an error relying upon the judgment passed in OS No.6836/2006 and also in another judgment OS No.3174/2006 and dismissed the RFA to vacate the order of temporary injunction granted in favour of the appellant. Such an approach adopted by the Trial Court is totally erroneous and it requires interference. The counsel for appellant vehemently contends that already an application is filed for amendment, seeking relief of declaration and the said application was filed on 28.06.2022 and the same is pending for consideration.
5. Per contra, learned counsel for respondent submits that the Trial Court while allowing the application filed under Order 39 Rule 4, in detail discussed the same and came to the conclusion that when a specific pleading is made that already the defendant has encroached the property of the plaintiff, in suit for bare injunction, relief cannot be granted. The counsel also brought to the notice of this Court that with -8- NC: 2024:KHC:2368 MFA No. 7761 of 2022 C/W MFA No. 7759 of 2022 regard to the relief sought for, there are no grounds to allow these appeals.
6. Having heard the appellant's counsel and also considering the grounds which have been urged in both the appeals as well as contentions of the counsel for respondent, this Court has to look into the material on record. Relief sought for in the I.A. is granted vide temporary injunction order, i.e. restraining the defendants from raising any construction or encroaching the suit 'B' schedule property, pending disposal of the case. The pleading of the plaintiff is very clear that the defendant has encroached 3 feet and the same is already taken note of in paragraph 2 of the order passed by the Trial Court. While dismissing the case of the plaintiff, it is also taken note of defense which has been taken by the defendant, wherein they have contended that already there was a decree, when the suit was filed by the defendants for the relief of permanent injunction against the plaintiff in OS No.6836/2006 and the same is binding. It is also not in dispute that an application is filed seeking relief of declaration before the Trial Court by the appellant in 2022 itself and the same is pending for consideration. The Trial Court also while considering the relief -9- NC: 2024:KHC:2368 MFA No. 7761 of 2022 C/W MFA No. 7759 of 2022 sought in the I.A. and the factual aspects of the case in paragraph No.16, has made an observation that the plaintiff in the suit has not specifically mentioned the date on which the defendant has encroached the property. The Trial Court also took note of the fact that the pleading has been stating that the compound wall was constructed in 2006 itself. The copies and photographs are also produced and the same are taken note of. Trial Court comes to the conclusion that in suit for permanent injunction, when there is no specific pleading is made that defendant has encroached into the property of the plaintiff by 3 feet, mere injunction suit is note maintainable and also question of granting said relief does not arise since already specific pleading is made that the compound wall was erected in 2006 itself. The Trial Court took note of the encroachment by 3 feet and the same is a matter for consideration on merits. When there were pleadings of encroachment and plaintiff has not made out any prima facie case, having considered the reasoning given by the Trial Court and also the pleadings of the parties, I do not find any error committed by the Trial Court in rejecting the prayer sought in I.A.No.1 and allowing I.A.No.2 for vacating the interim order. There must be specific pleading
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NC: 2024:KHC:2368 MFA No. 7761 of 2022 C/W MFA No. 7759 of 2022 in suit for bare injunction that he has been in possession and there has been interference in the possession. Having considered the fact that there was already a decree in favour of the defendant, the matter requires to be adjudicated in a comprehensive suit. The counsel for appellant submits that an application is filed for amendment of plaint seeking the relief of declaration i.e., comprehensive relief of declaration and possession filed in the year 2022, the same is pending consideration.
6. Hence, this Court can give direction to the Trial Court to consider the said I.A. within a period of one month from the date of next hearing and pass appropriate order. With these observations, appeals are disposed off.
Sd/-
JUDGE NJ List No.: 1 Sl No.: 42