Writ petition under Article 226 challenging orders refusing a temporary injunction in a suit for permanent injunction regarding a water sump. Court upheld lower courts' finding that petitioner failed to prove sump was on his property.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.19264 OF 2022 (GM-CPC)
BETWEEN:
…PETITIONER
Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA
(BY SRI. P. NATARAJU, ADV.,)
AND:
MYSURU DISTRICT-571101.
…RESPONDENTS
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE ORDER PASSED BY THE LEARNED CIVIL JUDGE AND JMFC AT T.NARASIPURA IN OS.NO.231/2020 ON IA NO.02 DATED 03.01.2022 VIDE ANNEXURE-G AND THE JUDGEMENT AND ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC AT T.NARASIPURA IN MA.NO.05/2022 DATED 18.07.2022
VIDE ANNEXURE-H AND MAY BE PLEASED TO ALLOW IA NO.2 IN OS.NO.231/2020 ON THE FILE OF THE LEARNED CIVIL JUDGE AND JMFC AT T.NARASIPURA. GRANT AN INTERIM ORDER TO RESTRAINING THE DEFENDANTS, THEIR AGENTS, SERVANTS, WORKERS OR ANYBODY ACTING ON ITS BEHALF FROM INTERFERING WITH PEACEFUL POSSESSION AND ENJOYMENT OF THE PETITIONER SUIT SCHEDULE PROPERTY IN ANY MANNER WHATSOEVER TILL PENDING OF THE DISPOSAL OF THE ABOVE WRIT PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed under Article 227 of the Constitution of India by the plaintiff seeking prayer to quash the order dated 03.01.2022 passed on I.A.No.2 in O.S.No.231/2020 by the Civil Judge and JMFC at T.Narasipura and the judgment and order dated 18.07.2022 passed in M.A.No.5/2022 by the Sr. Civil Judge and JMFC, T.Narasipura by allowing I.A.No.2.
the petitioner has filed O.S.No.231/2020 seeking prayer for permanent injunction against the defendants restraining them and their family members from interfering with the plaintiff's lawful possession of the suit schedule property in
any manner. The plaintiff has described the suit schedule property as house property bearing No.1068/899/3 situated at Cinema Road, Bannur Taluk, T.N.Pura Taluk, Mysuru District. During the pendency of the suit, the petitioner has filed an application under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 seeking temporary injunction restraining the defendants, their agents, or anyone acting under them, from interfering with the peaceful possession and enjoyment of the plaintiff's suit schedule property. The said application was opposed by the defendants. The Trial Court, on considering the rival submissions, has rejected the application vide impugned order dated 03.01.2022 which has been confirmed by the Appellate Court in its order dated 18.07.2022 in M.A.No.5/2022. Under these actual circumstances, the present petition is filed by the plaintiff assailing both the orders.
Court have committed grave error in rejecting the application filed by the petitioner seeking prayer for temporary injunction. It is submitted that the petitioner is in lawful possession of the suit schedule property and the subject water sump is constructed in the year 1969 itself along with the building and the said water sump was constructed on the suit schedule property and not outside. It is further submitted that at the instance of the defendant No.2, the defendant No.1 has initiated the proceedings and issued notices asking the plaintiff to remove the sump from the suit schedule property. It is also submitted that the documents on record clearly establish that the neighbours of the petitioner have also constructed a sump encroaching the public road. Hence, he submits that taking action only against the petitioner is incorrect. It is also submitted that the Trial Court as well the Appellate Court have not properly considered the evidence on record, which has resulted in passing of the impugned orders.
NC: 2023:KHC:34534 WP No.19264 of 2022
not made out any prima facie case to grant temporary injunction.
Sd/JUDGE
RV
2 issues framed by the court
Whether the High Court should interfere with the lower court orders refusing to grant a temporary injunction in a property dispute concerning a water sump.
Whether the Trial Court committed an error in finding that the petitioner failed to establish a prima facie case that the water sump was constructed on his property rather than on a public road.
SRI. B.L. BOREGOWDA
THE CHIEF OFFICER BANNUR TOWN MUNICIPALITY
SRI. M. SUNIL
VIJAYKUMAR A. PATIL
As recorded by the court registry
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