Plaintiffs appealed against rejection of their interim injunction application and vacation of an ex-parte injunction in a suit alleging defendants' encroachment of a portion of their property. The High Court held the BBMP notices showed construction was on defendants' own third floor, not the encroached portion, and dismissed the appeal.
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 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 1459 OF 2024 (CPC)
BETWEEN:
Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA
APPELLANT NOS.1 TO 4 REP. BY GPA HOLDER MR. MANJUNATHA M
APPELLANT NO.1 AND 5 R/AT NO.28, VGB ROAD, ST. THAMOS TOWNPOST, BENGALURU-560 084.
…APPELLANTS
(BY SRI. RAMESH P KULKARNI, ADVOCATE)
AND:
BOTH ARE R/AT NO.307, VGB ROAD, ST. THOMAS TOWN POST, KACHARAKANAHALLI, BENGALURU-560 084.
…RESPONDENTS
(BY SRI. K.H.THIMMAIAH, ADVOCATE FOR CAVEATOR RESPONDENT NOS.1 AND 2)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED 17.02.2024 PASSED ON I.A.NO.2 IN OS.NO.5694/2023 ON THE FILE OF THE XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH12, ALLOWING THE I.A.NO.2 FILED UNDER ORDER 39 RULE 4 READ WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs in O.S.No.5694/2023 on the file of the XVI Additional City Civil and Sessions Judge, Bengaluru (henceforth
referred to as 'Trial Court') have filed this appeal challenging an
order dated 17.02.2024 in O.S.No.5694/2023 by which, their
NC: 2024:KHC:10188 MFA No. 1459 of 2024
application for interim injunction was rejected and the application filed by the defendants for vacating the ex-parte interim injunction granted was allowed.
declaration that the plaintiffs are the absolute owners of the suit schedule property and to direct the defendants to vacate the entire schedule 'B' property and deliver the vacant possession of the same to the plaintiffs. The schedule 'B' property was a property bearing No.63, Khatha No.46, situate at Kacharakanahalli, Kasaba Hobli, Bengaluru North Taluk, measuring East to West 24 feet and North to South 8 feet, over which a two square RCC roof house existed which was provided with separate electricity and water connection.
18.12.2004, the 'A' schedule property measuring East to West
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24 feet and North to South 8 feet was allotted to their propositus. On the south of this property, a portion was allotted to the propositus of the defendants. They claimed that their propositus purchased another property on the north of the schedule 'A' property, where a building belonging to the plaintiffs existed where they resided. They alleged that during 2020, the defendants trespassed into the schedule 'A' property, on the south west portion, to an extent of 2 feet x 10 feet and to an extent of 6 feet x 14 feet on the south eastern side of the schedule 'B' property. The encroached portion was described as the 'B' schedule property. The plaintiffs claimed that as they were related to the defendants, they tried to amicably settle the dispute. However, the defendants postponed the issue, though they agreed that they were in possession of the plaintiffs' property. The plaintiffs alleged that the defendants put up further construction during third week of August 2023, on the southern side of the property of the plaintiffs. The plaintiffs therefore, sought for the aforesaid reliefs.
NC: 2024:KHC:10188 MFA No. 1459 of 2024
would suffer untold hardship and injury. He relied upon the spot inspection by the officers of the BBMP on the complaint lodged by the plaintiffs, which indicated that there was a difference in the measurement of the property possessed by the defendants. He relied upon certain notices issued by the BBMP to contend that the defendants were putting up construction.
NC: 2024:KHC:10188 MFA No. 1459 of 2024
learned counsel for the plaintiffs as well as the learned counsel for the defendants.
have not only sought for the relief of declaration of title to the suit schedule property but also for recovery of possession of the encroached portion. It is undisputed that a two square RCC building exists on the property that was allotted to the share of the plaintiffs, while a six square RCC building was allotted to the share of the propositus of the defendants and both the suit properties lay adjacent to each. Therefore, there is no question of encroaching the building of the plaintiffs by the defendants. Since it is stated by the plaintiffs that the defendants have already encroached into the property belonging to them, while the defendants contend to the contrary and claimed that the construction put up by them is not on the alleged encroached portion but on the third floor of their building. The spot inspection by the BBMP does indicate that there was some discrepancy in the measurement of the property possessed by the defendants but the notices issued by the BBMP to defendants indicate that the construction put up by the
defendants was not on the property owned by the plaintiffs but was on the third floor of the property belonging to the defendants. Therefore, the defendants are not putting up any construction as alleged by the plaintiffs in the 'B' schedule property. Be that as it may, since the plaintiffs have already sought for the relief of recovery of possession of the encroached portion, any construction that may be put up by the defendants in this encroached portion, is always subject to the result of the suit and the plaintiffs will be entitled to restoration of the possession of the encroached portion, if they succeed in the suit.
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any, do not survive for consideration and the same stand dismissed.
Sd/JUDGE
PMR
List No.: 1 Sl No.: 44
1 issue framed by the court
Whether the trial court erred in vacating the ex-parte interim injunction and rejecting the plaintiffs' injunction application regarding alleged encroachment.
3 provisions across 1 enactments
Smt. Gowramma
Smt. Nanjamma
Smt. Mala
Smt. Lakshmi
Sri. Manjunatha M.
Sri. Venkatesh
R. Nataraj
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
