Sri C Venkataraju Vs Sri Veerabhadrappa

M/S JAYA CONSTRUCTIONS A PARTNERSHIP FIRM HAVING ITS OFFICE AT 1^ST STAGE, 7^TH 'A' CROSS, SREE SAI PARADISE ASHRAYA LAYOUT, DODDANEKUNDI BENGALURU-560 037

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REPRESENTED BY ITS PARTNERS

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i) SRI GUNTAKA SREENIVASA REDDY

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S/O KASI REDDY

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AGED ABOUT 47 YEARS

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ii) SRI KUMPATIKI RAMANAIAH S/O VENKATSWAMY KUMPATI AGED ABOUT 50 YEARS

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…RESPONDENTS

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(BY SRI. V. RAVI PRAKASH, ADVOCATE FOR C/R4)

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THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 07.07.2021 PASSED ON I.A.NO.1 IN OS.NO.519/2021 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-19, REJECTING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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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 HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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This appeal is filed by the appellant/plaintiff questioning

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the Order passed on I.A.No.1 filed under Order XXXIX Rule 1

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and 2 read with section 151 of CPC, in O.S.No.519/2021 dated 07.07.2021 passed by VII Additional City Civil and Sessions

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HC-KAR

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Judge, Bengaluru, whereby the trial court had rejected the said application.

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The rank of the parties before the trial court is retained for the sake of convenience.

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It is the case of the appellant/plaintiff that the plaintiff is the sole and absolute owner of site no.61 and another adjacent property bearing site No.62 and both are measuring to the dimension 30 x 40 feet and are formed out of Sy.No.6/3 duly converted for residential purpose situated at Kodigehalli Village, Yelahanka Hobli, Bengaluru North Taluk.

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It is contended by the learned counsel for the appellant/plaintiff that the defendants have encroached the suit schedule property to the extent of 960 sqft, East to West 80 feet and North to South 12 feet, towards northern side of the defendants property and southern side of the plaintiff’s property. Therefore, the appellant/plaintiff filed the suit for declaration and mandatory injunction restraining the defendants from alienating or encumbering the suit schedule property. Hence, filed an application before the trial court to grant an ad-interim ex-parte order of temporary injunction, for

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HC-KAR

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removing the construction and for restraining the defendants from alienating property, but said application is said to have been dismissed.

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The defendants entered into appearance and denied the case of the plaintiff. It is claimed by the defendants that their site is stretching upto raja kaluve, but in the document of joint development agreement, under the pleadings, it goes to show that the plan for construction is stretched upto the road, which means the encroachment of the plaintiff’s property. Therefore, the appellant has filed the suit.

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The trial court has dismissed the application on the reason that as per the Joint Development Agreement dated 25.3.2019, on the northern side of the property, it shows that there is existence of road and raja kaluve was shown as existing. As per the earlier sale deeds of the plaintiff’s vendor and defendants is missing in the schedule of the sale deeds. Therefore, it requires full fledged trial so as to find out the alleged encroachment. Also by looking into the photographs, the trial court has found ambiguity and therefore has opined

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HC-KAR

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that the plaintiff has failed to make out prima facie case and balance of convenience and hence dismissed the application.

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Heard learned counsel for the appellant/plaintiff.

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Learned counsel appearing for respondents/defendants

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remained absent inspite of giving sufficient opportunity.

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Based upon the pleadings of the plaint, the Trial Court

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raised following points for consideration as under:-

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(i) Whether, under the facts and circumstances of the case, the plaintiffs make out prima facie case on the basis of the materials produced before the trial court?

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(ii) Whether, under the facts and circumstances of the case, the plaintiffs make out case of balance of convenience on the basis of the materials produced before the trial court so as to grant an order of temporary injunction?

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(iii) Whether, under the facts and circumstances of the case, if an order of temporary injunction is not granted then plaintiffs would suffer any irreparable loss or injury?

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HC-KAR

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(iv) Whether, the order passed by the trial Court requires interference by this Court?

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It is not disputed that the site Nos.61 and 62 are adjacent to each other. The plaintiff is the owner of site No.61 and 62 carved out of Sy.No.6/3 and the defendant’s site is situated towards southern side of the plaintiff’s property in Sy.No.46/2 (new No.46/3).

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In the written statement, defendants have made pleadings that towards the southern side of the raja kaluve, the property bearing Sy.No.46/2 (new Sy.No.46/3) is situated. Towards northern side of the raja kaluve, the Sy.No.6/3 is situated. Therefore, it is pleaded by the defendants that the Sy.No.6/3 and old Sy.No.46/2 (new Sy.No.46/3) are divided by raja kaluve.

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It is submitted by the learned counsel for the plaintiff that the defendants are trying to construct the building beyond raja kaluve upto the road.

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It is the averment and the pleadings of the defendants in the suit that these two survey numbers are divided by raja kaluve, then the photographs shown by the plaintiff and the

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HC-KAR

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measurement of the property shows that there is encroachment by the defendants and that they are trying to stretch beyond raja kaluve upto the road. Therefore, the plaintiff has made out prima facie case that the defendants have encroached the property and prayer of the appellant is that for removing the construction made on the encroached area. Therefore, when this being the prima facie case made out, the balance of convenience lies in favour of the plaintiff and if injunction is not granted, then the plaintiff will be put into injury and loss. The only prayer of the plaintiff is that now the defendants have completed construction and if the property is alienated, then it will lead to multiplicity of proceedings causing loss to the plaintiff. Therefore, I answer point Nos.(1) to (4) in the Affirmative. Therefore, the plaintiff has made out case for grant of temporary injunction. Hence, the order passed by the Trial Court on the application for temporary injunction is liable to be set aside. Therefore, the appeal is liable to be allowed.

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In the result, I proceed to pass the following:

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NC: 2025:KHC:51879 MFA No. 2444 of 2022

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HC-KAR

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ORDER

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i. The appeal is allowed .

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ii. The order passed dated 07.07.2021 on I.A.No.1 filed under Order XXXIX Rule 1 and 2 read with section 151 of CPC, in O.S.No.519/2021 by VII Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside.

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iii. It is hereby ordered that there shall be order of temporary injunction restraining the respondents/defendants, their agents, their men or any other persons claiming through them from alienating or encumbering the suit schedule property.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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AKV_List No.: 1 Sl No.: 63

Sri C Venkataraju v. Sri Veerabhadrappa

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Sri C Venkataraju v. Sri Veerabhadrappa

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