The court disposed of a miscellaneous first appeal challenging the rejection of an interim injunction application. The higher court found no cause to interfere with the lower court's decision given that there were no imminent changes to the encroached property. The appellant's relief was denied without any operative order found in the text.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2022
BEFORE
THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.1255/2022
BETWEEN:
SRI. SYED PYARU AGED ABOUT 61 YEARS S/O SYED IBRAHIM AGRICULTURIST R/AT J.M. ROD, MUDIGERE TOWN CHIKKAMAGALUR DISTRICT - 577 132.
... APPELLANT
(BY SRI. K. K. VASANTH, ADVOCATE)
AND:
S/O JUNJEGOWDA R/AT BANKENAHALLI VILLAGE MUDIGERE TALUK CHIKKAMGALURU DISTRICT - 577 113.
... RESPONDENTS
(BY SRI. PRAKASH M H, ADVOCATE FOR R1)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 24.01.2022 PASSED ON I.A.NO.1 IN OS.NO.28/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MUDIGERE, REJECTING THE I.A.NO.I FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S.No.28/2021 on the file of the Senior Civil Judge and JMFC, Mudigere (for short, ' the civil Court '), has impugned the civil Court's order dated 24.01.2022. The civil Court by this impugned order has rejected the appellant's application (I.A.No.1) under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ' CPC' ).
described as Schedule 'A'. The appellant has also sought for permanent injunction against the respondents from interfering with the Schedule 'A' property.
- 5 -
Mr. Oliver Wilfred Coellho - could not have transferred the portions which have been described as Schedule 'B', 'C' and 'D' in the Schedule 'A' property because he has lost out in the suit for declaration of title. The suit for declaration of title is dismissed by the civil Court and confirmed by the first appellate Court in the first appeal. This Court in the pending appeal in RSA No.1639/2013 has appointed a Court Commissioner who has filed his Report and in this report, it is mentioned that the respondents are in possession of the property described in Schedule 'B', 'C' and 'D' properties.
"On perusal of the survey report submitted by the plaintiff at Sl.No.10 and 11 which reveals that the matter is pending before the Hon'ble High Court of Karnataka for consideration. So the plaintiff cannot
submit that as per the said report the defendants have encroached the land of plaintiff. Because it requires fullfledged trial of the parties. When the matter is pending before the Hon'ble High Court of Karnataka it is not proper and safe to discuss anything about those documents before this court. Besides this, the plaintiff himself in plaint para No.4 in last 3 lines has stated that he had not got surveyed the land at the time of taking possession of the plaint schedule property and he was of the opinion that it measured 8 acres 10 guntas and in para No.5, he states that thereafter he got confirmed about the encroachment through private survey. But the said private survey report is not before the court to support the plaintiff's claim. So on over all perusal of the plaint averments and the documents relied by the plaintiff, it reveals that as per the plaint averments he states 'A' schedule property is measuring 8 acres 12 guntas, the documents at Sl.No.3 to 5 speaks the property of plaintiff is measuring 8 acres 12 guntas, the plaintiff in para No.4 of plaint states that at the time of taking possession of plaint schedule property he was of the opinion that it measured 8 acres 10 guntas and the surveyor report says that the plaintiff is in actual possession of only 5 acres of land. So the plaint averments and that of the documents relied by the plaintiff and that of the actual possession
of land by plaintiff are different from one another. And the plaintiff by only relying upon the survey report submitted in RSA No.1639/2013 has stated that the defendant No.1 to 3 have encroached 'A' schedule property. If it is so, first the plaintiff has to prove the plaintiff's possession of suit 'A' schedule property then only the plaintiff has to prove the alleged encroachment by properly measuring the encroached property. So for all these process it requires full fledged trial. Moreover, as already stated that there is a dispute pending before the parties in RSA No.1639/2013 before the Hon'ble High Court of Karnataka, the plaintiff not being the party and the defendant No.3 also not being the party in the said RSA, the plaintiff cannot rely upon the said survey report and seek an equitable relief of injunction when there is a doubt regarding the plaintiff's actual possession. So for all these reasons the plaintiff has failed to establish before the court the prima facie case for granting temporary injunction. So the balance of convenience is also not in favour of the plaintiff. And no irreparable loss and hardship will be caused to the plaintiff if injunction is withheld. Hence, the plaintiff has not made out any ground to allow the application. Therefore, I answer all these points in “Negative.”
appellant submits that the appellant has sought for multifold relief in the application for temporary injunction, but that is only in the context of the appellant's case for rectification, possession and permanent injunction. The appellant does not really apprehend interference with the possession of 5 acres out of the total extent of 8 acres. However, the appellant would be entitled to some protection against changing the nature of the encroached portion viz ., Schedule 'B', 'C' and 'D' properties. The appellant will not be bound by the decree in the earlier proceedings if certain circumstances are established, and in the event the appellant is able to establish those circumstances, but if there are changes in the encroached portions in the meanwhile, the appellant would be put to irreparable injury. The civil Court has not considered these circumstances either in assessing prima facie case, or balance of convenience or irreparable hardship.
- 9 -
7. With this categorical submission, the only
question for consideration would be whether the civil Court has erred in rejecting the appellant's application insofar as the request for injunction against changing the nature of the encroached portions. When queried, Sri. Prakash M.H., the learned counsel for the first respondent, submits that this respondent has always been categorical that he would utilize the land in his possession chiefly for coffee plantation and if there is any other change it would not undermine the use of coffee plantation. This submission could be even by the other contesting respondents. In which event there would be no cause for the present application. Therefore, this Court is not persuaded to opine that there should be interference, and as such, the appeal stands disposed.
SD/JUDGE
RB
Sri. Syed Pyaru
Sri. D.R. Raju
B.M. Shyam Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
