Karnataka High Court
Sri H T Muniraju vs East Point Group Of Institutions on 17 September, 2018
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
MFA NO.4688/2014 (CPC)
C/W
MFA NO.4692/2014 (CPC)
BETWEEN
SRI H T MUNIRAJU
S/O LATE THAMMAIAH
AGED ABOUT 46 YEARS
R/AT HEERANDAHALLI VILLAGE
BIDARAHALLI HOBLI
BANGALORE EAST TALUK
... APPELLANT
(COMMON IN BOTH APPEALS)
(BY SRI. K. H. THIMMAIAH, ADVOCATE)
AND
1. EAST POINT GROUP OF INSTITUTIONS
R/AT 147, VIRGONAGAR POST
OFF OLD MADRAS ROAD
BANGALORE-560 049
REP. BY S.M. VENKATAPATHY
MANAGING DIRECTOR
S/O LATE MUNISHAMAPPA
2. M. G. CHARITABLE TRUST
HAVING ITS OFFICE AT NO.147
VIRGONAGAR POST
OFF OLD MADRAS ROAD
BANGALORE-560 049
ALSO AT: NO.143, BIDARAHALLI
BIDARAHALLI HOBLI
BANGALORE EAST TALUK
2
REP. BY ITS CHAIRMAN
SRI. S. M. VENKATAPATHI
S/O LATE MUNISWAMAPPA
... RESPONDENTS
(COMMON IN BOTH APPEALS)
(BY SRI. N. THIMME GOWDA, ADV. FOR R1 & R2)
MFA NO.4688/2014 AND MFA NO.4692/2014
ARE FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 22.04.2014, PASSED ON
IA NO.II & IA NO.1 RESPECTIVELY IN OS NO.571/2010
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE, BENGALURU (R) DISTRICT, BENGALURU,
DISMISSING IA NO.II FILED UNDER ORDER 39 RULE 1
& 2 OF CPC.
THESE MFAs COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the respondents on merits of the appeals at the admission stage itself.
2. The appellant, who is aggrieved plaintiff in OS No.571/2010 approached this court by way of two appeals challenging the order passed by the II Additional Civil Judge, Bengaluru Rural District in OS No.571/2010 on IA Nos. 1 & 2. IA No.1 was filed by the plaintiff seeking an interim order of temporary injunction restraining the defendants from obstructing 3 the ingress and egress to 'A' & 'B' suit schedule properties and also IA No.2 seeking for an order of temporary injunction restraining the defendants from trespassing into 'A' & 'B' suit schedule properties. The plaintiff claims that, he is the owner of Survey No.149/2 measuring 11 guntas and 149/3 mesuring 10 guntas of Heerandahalli village.
3. It is the contention of the plaintiff that, he is the absolute owner in possession and enjoyment of the 'A' & 'B' suit schedule properties and also 'C' suit schedule property is a road, which is used by the plaintiff for ingress and egress to 'A' & 'B' suit schedule properties. It is also the contention of the plaintiff that, the defendants have interfered with the possession of 'A' & 'B' suit schedule properties and made attempts to trespass into 'A' & 'B' suit schedule properties and also prevented the plaintiff from using 'C' suit schedule property ie., a road for ingress and egress to 'A' & 'B' suit schedule properties, which promoted the plaintiff to file the above said application in suits for grant interim orders.
4
4. The defendants appeared before the court and filed their objections to the above said applications stating that there is no access to 'C' suit schedule property at all. However, it is the defence taken by the defendants that, the plaintiff has executed an agreement of sale in the year 2009 by taking consideration amount and delivered possession of 'A' & 'B' suit schedule property, therefore, the plaintiff is not entitled for any injunction order, as they (defendants) are in possession and enjoyment of 'A' & 'B' suit schedule properties and there is no existence of 'C' suit schedule property at all.
5. After contest, the trial Court has considered the documents and pleadings of the parties and came to a conclusion that, the plaintiff has not produced any material with regard to 'C' suit schedule property to establish tentatively that he has been using 'C' schedule property ie., a road for the purpose of ingress and egress to 'A' & 'B' schedule properties and therefore, it rejected the prayer sofaras IA No.1 is concerned. However, the trial Court has made an observation that, 5 the RTC extract show the name of the plaintiff sofar as 'A' & 'B' schedule properties are concerned. The trial Court has also considered the plea of the defendants that the plaintiff has executed an agreement and the said agreement clearly discloses that, possession of 'A' & 'B' schedule properties have been delivered to the defendants.
6. Learned counsel for the appellant/plaintiff has strenuously contended that, the said agreement is not a registered document, therefore no injunction or possession can be claimed with respect to the said properties in view of the Indian Easements Act and Transfer of Property Act. The matter is still to be adjudicated with regard to, whether the defendants can put forward the said agreement as a shield, though unregistered and assert that they are before the court to protect their possession by defending the case as against the plaintiff, who actually sought for injunction. So far as 'A' & 'B' suit schedule properties are concerned, they entered the said properties by means 6 of the said agreement and therefore, they have to be dispossessed by due process of law.
7. After hearing both the parties, it is to be ascertained that, though the 'A' & 'B' suit schedule properties are originally agricultural properties, but for the present no agricultural operations are being taken place in the said properties and it is kept as an open field. In the circumstances, till the possession over the said property is decided by the trial Court as to who has been in actual possession and enjoyment of the 'A' & 'B' properties, in my opinion, if both the parties are directed to maintain status-quo with regard to 'A' & 'B' suit schedule properties concerned as on today, it would serve the purpose.
8. In sofar as 'C' suit schedule property is concerned, the learned counsel for the appellant (plaintiff) in MFA No.4692/2014 submits that, he would establish during the course of trial that, there is existence of a road to 'A' and 'B' suit schedule properties and it is the only access to 'A' & 'B' suit 7 schedule properties Therefore, the finding given by the trial Court that the plaintiff has not tentatively shown that 'C' suit schedule property ie., a 'Road' is an ingress and egress to 'A' & 'B' suit schedule properties, need not be interfered.
9. In the above facts and circumstances of the cases, no interference is required in sofar as MFA No.4692/2014 is concerned. Hence, the said MFA requires to be dismissed. However, MFA 4688/2014 is concerned, the order of the trial Court is hereby modified and both the parties are hereby directed to maintain status-quo as on today sofar as 'A' & 'B' suit schedule properties are concerned, till disposal of the cases before the trial Court.
The trial Court is directed to expedite the trial itself and dispose of the suits within a period of one year from the date of receipt of a copy of this judgment, as the matter is of the year 2014.
The trial Court is further directed that, any of the observation made by this court in the body of this judgment should not be taken into consideration while 8 disposing of the suits on merits and the suits should be decided purely on the basis of the pleadings and the evidence that may be adduced by the parties before the trial Court.
With the above observation, MFA No.4688/2014 is also disposed of.
In view of disposal of the appeals, the application-IA No.1/2014 filed for Temporary Injunction in both the appeals do not survive for consideration. Accordingly, the said application in both appeals are dismissed.
Sd/-
JUDGE KGR*