Karnataka High Court
Anand Shivaji Deshmukh vs Abhay R S on 16 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 1099
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO. 2956 OF 2019 (CPC)
BETWEEN:
ANAND SHIVAJI DESHMUKH
AGED ABOUT 35 YEARS,
SON OF SHIVAJI ATHMA RAM DESHMUKH
RESIDING AT NO.9,
CHIKKAGARADI, 2ND CROSS,
R. T. STREET, CHIKPET,
BENGALURU - 560 053.
... APPELLANT
(BY SRI. HARSHA KUMAR GOWDA H R., ADVOCATE)
AND:
1. ABHAY R S @ R HERAMBHA
AGED ABOUT 22 YEARS
SON OF T. RAMANJINAPPA.
2. T. RAMANJINAPPA
AGED ABOUT 76 YEARS,
SON OF LATE SRI THADAPPA
BOTH ARE RESIDING AT NO.298
NAGASHRI, 17TH CROSS,
2ND BLOCK R. T. NAGAR
BENGALURU - 560 032.
... RESPONDENTS
(BY SRI.CHENNARAYA REDDY S., ADVOCATE)
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THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
19.03.2019 PASSED ON I.A. NO.1 IN OS. NO. 1298/2018 ON
THE FILE OF THE III ADDITIONAL SENION CIVIL JUDGE,
BENGALURU RURAL DISTRICT BENGALURU, DISMISSING THE
I.A. FILED BY PLAINTIFFS UNDER ORDER 39 RULE 1 AND 2
OF CPC.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the impugned order.
2. This appeal is filed calling in question the order dated 19.3.2019 in O.S.No.1298/2018 on the file of the III Additional Senior Civil Judge, Bangalore Rural District, Bangalore (for short, 'the civil Court') whereby, the appellant
- plaintiff's application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908 (For short 'CPC') for injunction against the respondents from interfering with -3- the appellant's possession and enjoyment of the suit schedule property is dismissed.
3. The learned Counsel for the appellant submits that the appellant is the owner of the site No.19, carved out of Sy.No.15 of Lingadheeranahalli village, Yeswanthapura Hobli, Bangalore North Taluk ("suit schedule property"). It is not in dispute that the respondents are the absolute owners of site bearing Nos.20, 21, 22, and 23 also carved out of Sy.No.15 of Lingadheeranahalli village, Yeswanthapura Hobli, Bangalore North Taluk. However, the dispute between the appellant and the respondents is because the respondent No.1, who claims to have purchased the property bearing site Nos. 20, 21, 22 and 23, is encroaching upon the appellant's property i.e., site No. 19 because the respondent No. 1 does not have possession of site No.23. The learned Counsel for the appellant relies upon a sale deed purportedly executed for the site No.23 way back in the -4- year 1998 by the undisputed owner in favour of a third party- purchaser to assert that the respondents could not have purchased the site No.23, or be in possession thereof, in view of this prior transfer in favour of the third party purchaser.
4. The learned counsel for the appellant does not dispute that this sale deed dated 18.1.1998 executed for site No.23 in favour of the third party purchaser is not placed before the civil Court. The learned Counsel for the respondents, while supporting the impugned order submits that the sale deed dated 18.1.1998 relied upon by the learned counsel for the appellant does not pertain to site No.23 and therefore, no reliance can be placed upon it by the appellant.
5. However, it is undisputed that the civil Court has disposed of the appellant's application under Order XXXIX Rule 1 and 2 of the CPC without considering the -5- question of prima facie case in the light of the sale deed relied upon by the plaintiff. The lis between the appellant and the respondents ultimately would hinge on the question whether the appellant is able to establish that indeed site No. 23 was transferred way back in the year 1998 much before the sale of the site Nos. 20, 21,22 and 23 in favour of the respondent No.1, and the respondent No. 1, who does not have possession of the site No.23, has encroached site No. 19.
6. It is undisputed that during the pendency of the proceedings before the civil Court and this court, the respondent No.1 has constructed an industrial shed in the suit schedule property viz., the site claimed by the appellant as site No.19 and by the respondents as part of site Nos.20, 21, 22 and 23, and has leased it out to third party. Furthermore, the learned counsel for the respondent No.1 submits that during the pendency of the suit the respondent No.1 does not propose to make any additional -6- constructions or alienate or sell or create third party rights in the subject property.
7. In the circumstances of the case and the nature of the dispute, this Court is of the considered opinion that the question of possession of the subject property as of the date of the suit will have to be ascertained at the time of final adjudication after trial with both the appellant and the respondent/s leading their respective evidence to bolster their corresponding claims. But, the possession of the respondent No. 1 based on construction put up during the consideration of the application now rejected would be litigious, though the statement on behalf of the respondent No.1 that the respondent No. 1 would not put up additional construction or create third party rights will protect the nature of the property during the pendency of the lis. The balance of convenience will also have to be considered in the facts and circumstances of the case while deciding on the prayer for temporary injunction. The benefit of -7- construction put up by the respondent No.1 in the suit schedule property during the pendency of the suit cannot yield entirely to him if the appellant ultimately succeeds in the suit.
8. Therefore, this Court is of the considered view that while the appeal could be disposed of taking on record the submissions on behalf of the respondent No.1 that the respondent No.1 will not alienate or put up any additional construction in the disputed property viz., the property claimed as site No.19 by the appellant and site No.20 by the respondent No. 1 subject to the further condition that the respondent No.1 shall deposit with the civil Court bi- monthly 50% of the rent received from the tenant/s who occupy the construction with liberty to the parties to make necessary application for deposit of the amounts accumulated in fixed deposit for a term co-terminus with the disposal of the suit.
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The appeal is accordingly disposed of observing that any observation in the impugned order or in the course of this order shall not influence the civil Court in final adjudication of the suit.
SD/-
JUDGE nv CT:sr