Allowed

Smt. Deepika S., v. the State of Karnataka

Karnataka HC22 Oct 2024MFA/879/2024

Case brief

AI extract

What is this about?

Plaintiff sought injunctions against alienation and construction on her portion of partitioned land, alleging encroachment by the police department. Trial Court rejected I.A.Nos.1 and 2 citing survey number discrepancies. High Court, weighing the Haddubasth Nakshe and commissioner's report showing encroachment, set aside the order and granted both injunctions.

What the court decided

AI extract

Smt. Deepika S., Vs the State of Karnataka — Land Acquisition | Karnataka HC (2024)

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1 - NC: 2024:KHC:42356 MFA No. 879 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO.879 OF 2024 (CPC)

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BETWEEN:

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SMT. DEEPIKA S D/O LATE A SHIVAIAH AGED ABOUT 59 YEARS R/O NO 85, ABBIGERE CHIKKABANAWARA POST BENGALURU NORTH TALUK BENGALURU - 560 090

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…APPELLANT

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(BY SRI NARASIMHARAJU, ADVOCATE) AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA REP. BY PRINCIPAL SECRETARY DEPARTMENT OF REVENUE VIDHANA SOUDHA BENGALURU – 560001

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THE STATE OF KARNATAKA REP. BY PRINCIPAL SECRETARY HOME DEPARTMENT VIDHANA SOUDHA BENGALURU - 560 001

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THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT

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NC: 2024:KHC:42356 MFA No. 879 of 2024

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BEHIND KANDHAYA BHAVAN K G ROAD

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BENGALURU – 560009

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THE TAHSILDAR BENGALURU NORTH TALUK YESHWANTHPURA

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BENGALURU – 560010

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THE ASSITANT EXECUTIVE ENGINEER DASARAHALLI SUB-DIVISION BRUHAT BENGALURU MAHANAGARA PALIKE BAGALAGUNTE CHIKKBANAWARA POST BENGALURU – 560090

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THE POLICE INSPECTOR GANGAMMANA GUDI POLICE STATION GANGAMMANA GUDI ABBIGERE, CHIKKABANAWARA POST BENGALURU - 560090

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…RESPONDENTS

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(BY SRI GOPAL KRISHNA SOODI, AGA)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF CPC, AGAINST THE ORDER DATED 17.01.2024 PASSED ON I.A. NOs. 1 AND 2 IN O.S.NO. 3904/2023 ON THE FILE OF THE XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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NC: 2024:KHC:42356 MFA No. 879 of 2024

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ORAL JUDGMENT

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This Miscellaneous First Appeal is filed challenging the order dated 17.01.2024 passed on I.A.Nos.1 and 2 in O.S.No.3904/2023 by the XIV Additional City Civil and Sessions Judge, Bengaluru.

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Heard the learned counsel appearing for the respective parties.

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The main contention of the appellant is that the government who is having gomala land in Sy.No.13 which is adjacent to the suit schedule property encroached to an extent of 1¼ guntas of land and main document relied upon by the plaintiff before the Trial Court is document No.9 that is Haddubasth Nakshe prepared by the surveyor which is also shows the encroachment to that extent and the same is resisted by the State by filing the statement of objections.

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NC: 2024:KHC:42356 MFA No. 879 of 2024

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The main contention of the plaintiff that there

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was a partition on 17.04.2006 in respect of Sy.No.12/1A5 total extent is 2 acres 17 guntas among the family members of the plaintiff in terms of document No.2 wherein the plaintiff is allotted 7 guntas of land and out of that 7 guntas, encroachment is to an extent of 1¼ guntas.

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The counsel also submits that after the partition, all revenue entries were also changed in the name of the plaintiff and so also 7 guntas also has been converted in terms of document No.5. The counsel also brought to notice of this Court the error committed by the Trial Court wherein in paragraph 17, discussion was made by the Trial Court while rejecting the application coming to the conclusion that there is a discrepancy mentioning the plaintiff’s claims in respect of Sy.No.12/1A7 and the partition is in respect of Sy.No.12/1A5 and the matter requires trial. The counsel also brought to notice of this Court the observation made in paragraph 18 by the Trial Court wherein observation is made that the Haddubast Nakshe produced by the plaintiff is pertaining to

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NC: 2024:KHC:42356 MFA No. 879 of 2024

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Sy.No.12/1A7 which is not corresponding with the schedule in the partition deed. The counsel would vehemently contend that Sy.No.12/1A7 was given only subsequent to the partition after the phodi work done and hence, the Trial Court committed an error in coming to such a conclusion. The counsel also brought to notice of this Court that the commissioner also appointed by this Court and the commissioner given the report wherein also specifically stated with regard to encroachment of the plaintiff’s property. No doubt, the Government also filed objection to the said report. Having taken note of the document at document No.9 as well as report filed by the commissioner, it is clearly demarcated that police department have put up the fence with regard to the encroached area.

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The counsel for the respondent submits that Trial Court not committed any error in dismissing the applications unless the property is identified and

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NC: 2024:KHC:42356 MFA No. 879 of 2024

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possession is proved, the question of granting such relief does not arise.

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Having heard the learned counsel appearing for

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the respective parties and also on perusal of the commissioner’s report, it discloses that in terms of I.A.No.1, the plaintiff sought for the grant of an ad-interim order of temporary injunction restraining the defendants, their agents or anybody claiming under them from alienating or creating third party interest in respect of ‘B’ schedule property till the disposal of the suit. In terms of I.A.No.2, the plaintiff sought for the temporary injunction restraining the defendants, their agents or anybody claiming under them form changing the nature or put up any construction on ‘B’ schedule property till the disposal of the suit. When the plaintiff has produced the document of partition deed, no doubt, bearing Sy.No.12/1A5 was allotted to the extent of 7 guntas and subsequently, revenue entries are also changed and phodi work was done and reassigned the number as Sy.No.12/1A7 that is

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7 - NC: 2024:KHC:42356 MFA No. 879 of 2024

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the portion of 7 guntas of land allotted in favour of the plaintiff. When the documents are produced before the Trial Court to that effect and apart from that the commissioner also appointed before this Court and he also given the report stating that portion of plaintiff’s property has been encroached by the police department and they put up the fencing, the reason assigned by the Trial Court is erroneous in considering the applications. Trial Court also while rejecting the applications comes to the conclusion that plaintiff has produced the photographs but there are no documents to show the possession of the plaintiff over the suit schedule property. When the relief is sought for not to alienate or not to change the nature of the property and main case of the plaintiff is also that there is an encroachment and prima facie document is placed before the Trial Court that is document No.9 the very document is prepared by the survey department that is Haddubasth Nakashe and also the commissioner report is also in favour of the plaintiff wherein it says that there is an encroachment, the Trial Court fails to take note of the

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8 - NC: 2024:KHC:42356 MFA No. 879 of 2024

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reliefs sought by the plaintiff before the Trial Court i.e., for not to alienate and not to put up any construction and change the nature of the property. No doubt, the material requires detail trial. When prima facie material is placed before the Trial Court that there was a partition and subsequent to the partition, phodi work was done and new number was assigned as Sy.No.12/1A7, Trial Court committed an error taking into note of all these documents and erroneously comes to the conclusion that not tallies with the property number as Sy.No.12/1A5 and Sy.No.12/1A7 and subsequent changes has not been noticed by the Trial Court. Hence, it is a fit case to set aside the order of the Trial Court and to grant the relief as sought in I.A.Nos.1 and 2.

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In view of the discussions made above, I pass the following:

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ORDER

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The Miscellaneous First Appeal is allowed.

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9 - NC: 2024:KHC:42356 MFA No. 879 of 2024

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The impugned order dated 17.01.2024 is set aside. Consequently, I.A.Nos.1 and 2 are allowed granting the reliefs as prayed by the plaintiff/appellant in O.S.No.3904/2023.

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The Trial Court is directed to dispose of the matter as expeditiously as possible.

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Sd/(H.P.SANDESH) JUDGE

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Smt. Deepika S., v. the State of Karnataka

Case brief

What is this about?

What the court decided

Smt. Deepika S., v. the State of Karnataka

Case brief

What is this about?

What the court decided

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