Disposed

Sri R K Arun v. Smt Saraswathi

Karnataka HC21 Sept 2024MFA/6122/2024

Case brief

AI extract

What is this about?

Appeals against orders on injunction applications in a suit alleging encroachment of suit 'B' schedule property during construction. The High Court upheld the trial Court's refusal of injunction, finding encroachment a trial issue, but modified the order to direct the defendant to file an affidavit not claiming equities if the plaintiff succeeds.

What did the court decide?

Trial Court order modified: defendant directed to file affidavit within one month that she shall not claim equities if the suit succeeds; appeals disposed of.

Sri R K Arun Vs Smt Saraswathi — Specific Performance | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 21^ST DAY OF SEPTEMBER, 2024

¶4

BEFORE

¶5

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 6122 OF 2024 (CPC)

¶6

C/W

¶7

MISCELLANEOUS FIRST APPEAL NO. 6123 OF 2024 (CPC) MISCELLANEOUS FIRST APPEAL NO. 6124 OF 2024 (CPC)

¶8

IN MFA No. 6122/2024

¶9

BETWEEN:

¶10

SRI. R.K. ARUN S/O SRI. KEMPAHANUMAIAH, AGED ABOUT 37 YEARS, R/AT NO. 03, 9^TH CROSS, 5^TH MAIN, GIRINAGAR 3^RD PHASE, BENGALURU - 560 085

¶11

Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

¶12

…APPELLANT

¶13

(BY SRI. BHAT GANAPATHY NARAYAN, ADVOCATE)

¶14

AND:

¶15

SMT. SARASWATHI W/O SRI. SRINIVAS MURTHY, AGED ABOUT 62 YEARS, R/AT NO. 04 KALLAPPA BLOCK ROAD, BASAVANAGUDI, BENGALURU - 560 004

¶16

…RESPONDENT

¶17

2 - NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶18

(BY SRI. ANUP SEETHARAM RAO, ADVOCATE FOR C/R)

¶19

THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 19.08.2024 PASSED ON I.A.NO.1 IN OS.NO.3927/2024 ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CCH.NO.15, BENGALURU, REJECTING THE IA.NO.I FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

¶20

IN MFA NO. 6123/2024

¶21

BETWEEN:

¶22

SRI. R.K. ARUN S/O SRI. KEMPAHANUMAIAH, AGED ABOUT 37 YEARS, R/AT NO. 03, 9^TH CROSS, 5^TH MAIN, GIRINAGAR 3^RD PHASE, BENGALURU - 560 085

¶23

...APPELLANT

¶24

(BY SRI. BHAT GANAPATHY NARAYAN, ADVOCATE)

¶25

AND:

¶26

SMT. SARASWATHI W/O SRI. SRINIVAS MURTHY, AGED ABOUT 62 YEARS, R/AT NO. 04 KALLAPPA BLOCK ROAD, BASAVANAGUDI, BENGALURU - 560 004

¶27

...RESPONDENT

¶28

(BY SRI. ANUP SEETHARAM RAO, ADVOCATE FOR C/R)

¶29

3 - NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶30

THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 19.08.2024 PASSED ON I.A. NO. 3 IN O.S.NO. 3927/2024 ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-15), ALLOWING THE I.A. NO.3 FILED UNDER ORDER XXXIX RULE 4 OF OF CPC.

¶31

IN MFA NO. 6124/2024

¶32

BETWEEN:

¶33

SRI. R.K. ARUN S/O SRI. KEMPAHANUMAIAH, AGED ABOUT 37 YEARS, R/AT NO. 03, 9^TH CROSS, 5^TH MAIN, GIRINAGAR 3^RD PHASE, BENGALURU - 560 085

¶34

...APPELLANT

¶35

(BY SRI. BHAT GANAPATHY NARAYAN, ADVOCATE)

¶36

AND:

¶37

SMT. SARASWATHI W/O SRI. SRINIVAS MURTHY, AGED ABOUT 62 YEARS, R/AT NO. 04 KALLAPPA BLOCK ROAD, BASAVANAGUDI, BENGALURU - 560 004

¶38

...RESPONDENT

¶39

(BY SRI. ANUP SEETHARAM RAO, ADVOCATE FOR C/R)

¶40

THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 19.08.2024 PASSED ON I.A. NO. 2 IN O.S.NO. 3927/2024 ON THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,

¶41

¶42

NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶43

BENGALURU (CCH-15), REJECTING THE I.A. NO.2 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

¶44

THESE APPEALS, COMING ON FOR ADMISSION, THIS

¶45

DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶46

CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

¶47

ORAL COMMON JUDGMENT

¶48

Aggrieved by the orders passed on I.A.Nos.1 to 3 in O.S.No.3927/2024 dated 19.08.2024, by the Court of the VIII Additional City Civil and Sessions Judge (CCH-15) at Bengaluru, three appeals are filed before this Court by the appellant/plaintiff. MFA No.6122/2024 is arising out of I.A.No.1 which is filed seeking injunction restraining the defendant from interfering with the peaceful possession and enjoyment of plaintiff's suit 'A' schedule property. Against order passed on I.A.No.3 filed under Order XXXIX Rule 4, MFA No.6123/2024 is filed and MFA No.6124/2024 is arising out of I.A.No.2 which is filed seeking the relief of restraining the defendant from putting up construction in the suit 'B' schedule property. As the trial Court had disposed of all IAs. by way of a common order, this

¶49

5 - NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶50

Court is also disposing of all the appeals by way of a common order.

¶51

The suit is filed seeking a declaration that the schedule 'B' property is the part of schedule 'A' property as per the gift deed dated 18.03.2021, registered as Document No.6612/ 2020-21 belonging to the plaintiff and mandatory injunction directing the defendant to demolish the encroached portion of the schedule 'A' property i.e., schedule 'B' property and hand over the possession to the plaintiff and in case defendant fails to demolish the same, the Court may direct to demolish the same through agency of the Court in the interest of justice and equity. Further, relief of permanent injunction restraining the defendant and her agents, servants, henchmen, agents or anybody claiming through or under her from interfering with the peaceful possession and enjoyment of the suit schedule 'A' property and also sought for a permanent injunction restraining the defendant from putting up the construction on the suit schedule 'B' property. It is the specific case of the plaintiff that the property originally belongs to one Mr. Channayyappa alias Channaiah, the same has been acquired through registered sale deed dated 22.03.1945.

¶52

¶53

NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶54

Subsequent to the death of Channaiah, the lands have been succeeded by his children and they have partitioned the properties on 25.04.1979. As per the partition, the property measuring 1 acre 4 guntas, out of 3 acres 10 guntas bearing Sy.No.29, Avalahalli Village, Uttarahalli Hobli, Bangalore South Taluk fell into the share of Mr.A.C.Narasimaiah and the property was mutated in his name. Thereafter, they have executed a GPA in favour of Mr. Kempahanumaiah in respect of the portion of the property and empowering him to do all acts, deeds and things on his behalf, through registered GPA dated 21.10.1988. Thereafter, they have sold the portion of the property to Mrs. Rathna, which is registered by way of sale deed dated 13.11.2003. Thereafter, the name of Mrs.Rathna has been reflected in the encumbrance certificate. She gifted the portion of the property by affixing the sketch in favour of her son, who is the plaintiff in the suit through registered gift deed dated 18.03.2021 in respect of the schedule 'A' property. By virtue of the gift deed, the plaintiff has become absolute owner of the suit schedule 'A' property and he is in peaceful possession and enjoyment of the same and he is also paying the property tax. The defendant being the owner of the

¶55

¶56

NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶57

adjacent property, started constructing of the building recently i.e., in the first week of April-2024 and she has demolished the compound wall existing in between the plaintiff and the defendant's property and she is encroaching the portion of the property measuring 619 sq. ft. on the southern side of schedule

¶58

'A' property. Now they are putting compound wall by encroaching the schedule 'B' property, which made him to come before the Court and seek the reliefs. The defendant had filed the detailed Written Statement. According to the defendant, he is the absolute owner in possession of Site No.190, situated at Avalahalli Village, Uttarahalli Hobli, Bangalore South Taluk, which is allotted to him by Vishwa Bharathi Housing Co-Operative Society measuring East to West: 80 ft and North to South: 50 ft. and the plaintiff has no right, title and interest over any portion of Site No.190 owned and possessed by the defendant. The Society has converted the said land from agricultural to non-agricultural purpose. After approval of the layout, the layout was sanctioned vide Board Resolution dated 02.05.1973. Smt. Savithri who is the sister of

¶59

the defendant gifted Site No.190 to the defendant under gift deed dated 07.11.2005. Thereafter, the defendant had

¶60

¶61

NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶62

obtained the building licence and building plan dated 29.11.2023 from the BBMP for construction of new residential building. The defendant dug a bore-well in her property and commenced construction of the new residential building in January-2024. The defendant denied the allegation of the plaintiff that the defendant removed the plaintiff's compound wall to encroach the schedule 'B' property. The compound wall put up by the plaintiff between his petrol bunk and the defendant's property is intact and they filed the photographs in that regard. According to them, there is no encroachment by the defendant. For the best reasons known to the plaintiff, had come before this Court. I.A.Nos.1 and 2 were dismissed by the Court. It is the case of the plaintiff that the defendant has already encroached the suit 'B' schedule property. On the other hand, the defendant has taken up a specific stand that the property of the plaintiff and the defendant is clearly bifurcated by a compound wall put up in the year 1986. The defendant had produced the photographs which reflects the existence of compound wall. At this stage, there is sufficient material on record to show that the property of the plaintiff and the defendant is bifurcated by a strong compound wall, which

¶63

¶64

NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶65

remains even now. There is nothing on record to show that the said compound wall is demolished or damaged in any way. Therefore, even if there is an encroachment, the same will be considered only during the trial and not at this stage. In view of the same, the Court had declined to pass an order to stop further construction in suit 'B' schedule property as sought for in I.A.No.1. Coming to I.A.Nos.2 and 3, if the defendant is prevented from putting up the construction, it will cause hardship to the defendant and not to the plaintiff and the Court felt that there is balance of convenience in favour of the plaintiff. Accordingly, I.A.Nos.1 and 2 filed by the plaintiff are dismissed and I.A.No.2 filed by the defendant is allowed. Aggrieved thereby, the plaintiff is before this Court.

¶66

Learned counsel appearing for the appellant/plaintiff submits that the trial Court without considering any of the parameters for grant of an injunction, had dismissed the applications. He submits that if the defendant is permitted to put up construction, it would cause irreparable loss and damage to the plaintiff, which was not considered by the Court. He submits that in case, the Court finds that there is an

¶67

10 -

¶68

NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶69

encroachment as now he is putting up the construction, he shall not claim any equities.

¶70

Learned counsel appearing for the respondent/ defendant submits that when the plaintiff has not able to make out a prima facie case, he is not entitled for any of the injunction that is sought by way of I.A.Nos.1 and 2 and the trial Court had rightly dismissed the applications i.e., I.A.Nos.1 and 2 filed by the plaintiff. There is no illegality with the order passed by the trial Court.

¶71

Having heard the learned counsel on either side, perused the material on record. It is the case of the plaintiff that the plaintiff is not questioning the title to the defendant and his case is that the defendant is encroaching his property. It is the case of the defendant that he is not encroaching the property and in fact the compound wall is intact. The trial Court observes that whether there is encroachment or not, has to be decided after a full fledged trial and the plaintiff is not entitled

¶72

for any injunction restraining the defendant from putting up further construction. As far as findings of the Court that there is balance of convenience is in favour of the defendant and there

¶73

11 -

¶74

NC: 2024:KHC:39094 MFA No. 6122 of 2024 C/W MFA No. 6123 of 2024 MFA No. 6124 of 2024

¶75

cannot be any injunction restraining him from putting up construction and all other reliefs that were rejected by the Court were based on a sound reasoning, which this Court is not interfering. However, one aspect is that after full fledged trial, if the suit is decreed in favour of the plaintiff, in that event, if the defendant claims equities, then it would definitely come in the way of the plaintiff. In that view of the matter, this Court is passing the following:

¶76

ORDER

¶77

1. The order of the trial Court is modified to the extent that in the event the plaintiff succeeds, the defendant shall not claim any equities and an affidavit shall be filed before the trial Court by the defendant within a month.

¶78

1. Accordingly, the appeals are disposed of .

¶79

1. All IAs. in the appeals shall stand closed.

¶80

SD/(LALITHA KANNEGANTI) JUDGE

¶81

¶82

Ct: SNN

Sri R K Arun v. Smt Saraswathi

Case brief

What is this about?

What did the court decide?

Sri R K Arun v. Smt Saraswathi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Aswini Kantharaj Vs Sri Tejaswi v

Smt Gowramma Vs Smt Choodamma

National Highway Authority of India, Vs Chandrashekar B Mada

Sri Ramesh Vs Gowramma

Sri L C Krishnamurthy Vs Smt Kalpana

M/S Esteem Xen Shelters Private Limited Vs Annayappa T