Lokesh Naik M L Vs Sri. H P Vedavyasacharya

THIS MISCELLANEOUS FIRST APPEAL IS FILED PRAYING TO QUASH THE ORDER DATED 11.02.2025 PASSED BY THE HONBLE LXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-76) ALLOWING THE APPLICATION DATED 08.07.2022 FILED BY THE DEFENDANTS SEEKING-IMPLEAD THE PROPOSED PLAINTIFF, PRODUCED AS ANNEXURE-A.

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THIS APPEAL IS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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CAV JUDGMENT

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The appeal is filed by the appellants/proposed plaintiff Nos.3 and 4 questioning the order dated 11.02.2025 passed on I.A.No.XVII filed under Order XXXIX

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Rules 1 and 2 of CPC by defendant Nos.1 and 2 in OS.No.3938/2015 on the file of LXXV Addl. City Civil and

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Sessions Judge, (CCH-76), Bangalore, thereby, restraining appellants No.3 and 4 or their agents/henchmen or anyone claiming under them from entering or in any manner carrying out any work in the schedule properties/suit schedule properties till the disposal of the suit.

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Respondent Nos.3 and 4 who are plaintiff Nos.1 and 2 have filed the suit against respondent Nos.1 and 2 who are defendant Nos.1 and 2 for permanent injunction restraining the defendants from interfering with the plaintiffs’ peaceful possession and enjoyment of schedule ‘B’ property through common passage for ingress and egress and other legally permitted usages such as laying of water, drainage and electricity pipes and also for permanent injunction restraining defendant Nos.1 and 2 to remove the illegal structure put up by them in this space of 5 feet passage on the eastern side and also prayed for mandatory injunction directing the defendants to remove pipes fixed by defendant Nos.1 and 2, which are projecting

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to the set back left by the plaintiffs on the northern side of schedule ‘B’ property and also for mandatory injunction issuing direction to the defendants to remove the windows/window frames put up on the walls erected by the defendants on the southern side of the property without leaving any set back.

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PLAINT:

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Plaintiff Nos.1 and 2/respondent Nos.3 and 4 in this appeal have filed the suit by contending that the defendants were joint owners in possession of suit schedule ‘A’ property No.298 measuring 40 x 60 feet as described in the schedule by virtue of the sale deed dated 31.08.2005 executed by the Bangalore Development Authority.

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It is pleaded that the defendants sold a portion of property measuring 30 x 40 feet on the southern side of schedule ‘A’ property in favour of plaintiff Nos.1 and 2 under the registered sale deed dated 05.12.2008, which is

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described as schedule ‘B’ property. The Bangalore Development Authority (BDA) has approved the division of schedule ‘A’ property and assigned new numbers as 298/1 and 298/2 on 22.09.2011 and also issued separate katha certificates in respect of schedule ‘B’ property.

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It is submitted that there are terms and conditions while making the division of schedule ‘A’ property by bifurcating the same and new property as schedule ‘B’ property and there are terms and conditions in the sale deed dated 05.12.2008 with regard to usage of passage and relinquishing the rights over 2 and ½ feet on the northern side of schedule ‘B’ property by the plaintiffs in favour of defendant Nos.1 and 2. The same is found in the said sale deed at paragraph No.3 in page No.3. It is further pleaded that by virtue of the said sale deed dated 05.12.2008 the defendants retained a portion in the schedule property as a clear approach on its northern side, since it is facing towards northern side.

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6. The plaintiffs have only approach through 5 feet

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passage (located on the northern side of schedule ‘B’ property and western side of the property retained by the defendants). It is submitted that the plaintiffs have agreed

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to part with 2 and ½ feet in favour of defendants for the purpose of putting up of steps and staircase out of the portion of the property agreed to be sold in favour of the plaintiffs and in turn, the defendants have agreed to leave

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5 feet on the eastern side of schedule ‘A’ property for being used as a common passage, so as to provide ingress and egress to schedule ‘B’ property of plaintiff Nos.1 and 2. Therefore, in view of the terms and conditions in the sale deed dated 05.12.2008 the plaintiff Nos.1 and 2 have relinquished the rights over 2 and ½ feet x 35 feet in favour of defendant Nos.1 and 2 for putting up of staircase for building to be put up by defendants in their property, and ultimately retaining 27 and ½ x 40 feet i.e., schedule

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‘B’ property and have rights to use the passage of 5 feet for the purpose of ingress and egress for the property.

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Plaintiff Nos.1 and 2 have sold the schedule ‘B’

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property in favour of proposed plaintiff Nos.3 and 4. The plaintiffs have pleaded that since the defendant Nos.1 and 2 have started construction by using 2 and ½ feet left by them on the northern side of schedule ‘B’ property and when the defendants started putting up sajja in the passage and by putting sanitary and water pipes to the walls, which have been projected towards the set back of plaintiff Nos.1 and 2, therefore, plaintiff Nos.1 and 2 have filed the suit for the relief of temporary injunction as above described.

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WRITTEN STATEMENT:

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Defendant Nos.1 and 2 have filed a detailed

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written statement denying the averments made in the plaint except admitted facts. It is submitted that plaintiff Nos.1 and 2 and defendants were in goods terms and having cordial relationship between them. It is also admitted that the defendants have sold the suit schedule ‘B’ property in favour of plaintiff Nos.1 and 2 through

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registered sale deed dated 05.12.2008 by apportioning the suit schedule ‘A’ property into two halves. The southern side of the suit schedule ‘A’ property was sold to plaintiff Nos.1 and 2. Thereafter, the relationship between plaintiff Nos.1 and 2 and defendants became strained.

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It is pleading of the defendants that they have never objected to any kind of construction on the suit schedule ‘B’ property, but at a very early stage of construction in the portion allotted to the defendants in suit schedule ‘A’ property, there was interference and obstruction by the plaintiffs. Also, it is alleged that plaintiff Nos.1 and 2 have removed the pipes laid down by the defendants, which were affixed to the wall of the defendants. It is also alleged that at the initial point of time, plaintiff No.1 had beaten the son of the defendants. Thereafter, plaintiff Nos.1 and 2 laying pipes for drainage, sewerage and electricity; therefore, it is contention of the defendants that the plaintiffs have only a right of passage and do not have any other right for construction or

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development over the passage, but plaintiff Nos.1 and 2 tried to lay down pipes in the passage. In this regard, a complaint before the Police was lodged against plaintiff Nos.1 and 2.

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It is submitted that when plaintiff Nos.1 and 2 have failed to lay pipeline in the alleged common passage, plaintiff Nos.1 and 2 have negotiating with the prospective buyers and ultimately sold the suit schedule ‘B’ property to people of a community who are meat-eating people so as to give harassment to the defendants. The defendants are feeling inconvenient about selling of suit schedule ‘B’ property to the buyers who are non-vegetarian, but plaintiff Nos.1 and 2 have sold the suit schedule property in favour of plaintiff Nos.3 and 4 during subsistence of an order of temporary injunction in O.S.No.3938/2015. The defendants have filed an application for temporary injunction against the plaintiff Nos.1 and 2 not to alienate the suit schedule ‘B’ property and the trial Court has granted an order of temporary injunction on 19.06.2019

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restraining plaintiff Nos.1 and 2 from alienating the suit schedule ‘B’ property but in violation of temporary injunction order dated 19.06.2019, plaintiff Nos.1 and 2 have sold the suit schedule ‘B’ property to plaintiff Nos.3 and 4 through registered sale deed 24.06.2022. Thus, there is violation of order of temporary injunction granted by the Trial Court.

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Thereafter, plaintiff Nos.3 and 4 started to lay pipeline in the common passage; therefore, defendant Nos.1 and 2 have filed I.A.No.17 under Order XXXIX Rules 1 and 2 read with Section 151 of CPC seeking to grant an order of temporary injunction against plaintiff Nos.3 and 4 restraining them from carrying out any work in the common passage and the Trial Court has allowed the said application (I.A.No.17) restraining the proposed plaintiffs/plaintiff Nos.3 and 4 and granted an order of temporary injunction from entering or in any manner carrying out any work on the common passage.

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Being aggrieved by the said order of granting

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temporary injunction, plaintiff Nos.3 and 4 have filed the present appeal.

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Having heard the arguments from both the

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learned counsel appearing for the parties and upon perusing the oral and documentary evidence placed before

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the Trial Court and this Court, the following points would arise for my consideration:

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(i) Whether, under the facts and circumstances involved in the case, whether plaintiff Nos.3 and 4 demonstrate that the defendants have not made out prima facie case for grant of temporary injunction against plaintiff Nos.1 and 2 from carrying out work in the schedule property?

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(ii) Whether, under the facts and circumstances involved in the case, whether plaintiff Nos.3 and 4 demonstrates that the defendants do not have balance of convenience so as to grant an order of temporary injunction against plaintiff Nos.1 and 2?

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(iii) Whether, under the facts and circumstances involved in the case, if an order of temporary injunction is not granted, then plaintiff Nos.3 and 4 would suffer any irreparable loss and injury?

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

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Learned Senior counsel for the

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appellants/proposed plaintiff Nos.3 and 4 submitted that plaintiff Nos.3 and 4 have purchased ‘B’ schedule property on 24.06.2022 through registered sale deed from plaintiff Nos.1 and 2 and the appellants are now carrying out only the work of laying pipelines for sewage and drinking water facilities under the beneath of the surface in the common passage without affecting the rights of the defendants. If the appellants/proposed plaintiff Nos.3 and 4 are not permitted, then the proposed plaintiff Nos.3 and 4 would be deprived of getting basic necessities of drinking water and also discharge of sewage water. Therefore, the interim order of temporary injunction granted is causing loss and injury to the plaintiffs by which plaintiff Nos.3 and 4 are not in a position to make use of their ‘B’ schedule house property and thus, the enjoyment of basic necessities such

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as getting drinking water and discharge of sewage water, underground electricity cable connection. These basic necessities are not only fundamental, but also human rights, for which, the defendants are obstructing without any reasons. Therefore, the order of trial Court is illegal and perverse. Hence, prays to allow the appeal by setting aside the order passed by the trial Court.

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Further submitted that plaintiff Nos.1 and 2 have purchased ‘B’ schedule property out of ‘A’ schedule property which is half portion of ‘A’ schedule property. There is a recital in the sale deed dated 05.12.2008 and therefore, plaintiff Nos.1 and 2 have right over the common passage and subsequently, after purchasing ‘B’ schedule property by the proposed plaintiff Nos.3 and 4 from plaintiff Nos.1 and 2, the said right of whole passage is conveyed. Thus, the defendants are estopped in making interference and obstruction in making use of passage, but the trial Court without considering this prima facie material has granted an order of temporary injunction in favour of

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the defendants which is causing loss and injury to plaintiff Nos.3 and 4. Therefore, prays to set aside the order by allowing the appeal.

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On the other hand, learned Senior Counsel for the defendants submitted that plaintiff Nos.1 and 2 after purchasing ‘B’ schedule property out of half portion of ‘A’ schedule property has started harassment and causing injury to the defendants. Further submitted that the generosity shown by the defendants is being misused by plaintiff Nos.1 and 2 and with vengeance plaintiff Nos.1 and 2 have sold ‘B’ schedule property to plaintiff Nos.3 and 4. The defendants have obtained the order of temporary injunction on 19.06.2019 and during the subsistence of the said interim order of injunction plaintiff Nos.1 and 2 have sold the ‘B’ schedule property to proposed plaintiff Nos.3 and 4 on 24.06.2022. Therefore, plaintiff Nos.1 and 2 have violated the order of temporary injunction. Therefore, plaintiff Nos.1 and 2 as well as plaintiff Nos.3 and 4 are not entitled to the relief of

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equitable relief by uplifting the order of temporary injunction.

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Further submitted that once I.A.Nos.3 and 4 are allowed, it is not permissible for plaintiff Nos.3 and 4 to take different view as that of plaintiff Nos.1 and 2 on the principle of application of res judicata. Further submitted that the appeal filed by proposed plaintiff Nos.3 and 4 is not maintainable as they do not have locus standi to challenge the order. Therefore, submitted that the appeal filed by plaintiff Nos.3 and 4 is liable to be dismissed.

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Considering the factors that admittedly the defendants are the owners of ‘A’ schedule property having been allotted by Bangalore Development Authority through the registered sale deed dated 05.12.2008. It is stated that the defendants and plaintiff Nos.1 and 2 were having a good relationship between them and therefore, the defendants have sold half portion of the suit schedule ‘A’ property towards southern side, which is described as the

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suit schedule ‘B’ property, through registered sale deed dated 05.12.2008. Thereafter, cordial relationship between the defendants and plaintiff Nos.1 and 2 was strained, then plaintiff Nos.1 and 2 have filed the suit against the defendants in the month of November 2014, alleging that the defendants started construction by using 2 and ½ feet left by them on the northern side of the suit schedule property and also the defendants started putting up of sajja in the passage and had fixed sanitary water pipes to the walls, which have been projected towards the setback left to the plaintiffs.

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Also, it is allegation of plaintiff Nos.1 and 2 that the defendants have prevented plaintiff Nos.1 and 2 from laying water, electricity and sanitary pipes under the common passage and therefore, plaintiff Nos.1 and 2 filed a complaint before the Police. Hence, by raising these causes of action, plaintiff Nos.1 and 2 have instituted the suit.

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20. The defendants appeared in the suit and filed

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the written statement denying the plaint averments. The defendants came to know that plaintiff Nos.1 and 2 were attempting to alienate the suit schedule ‘B’ property to non-vegetarian people, which would infringe the religious sentiments of the defendants. Therefore, the defendants have filed an interlocutory application (I.A.No.4) under Order XXXIX Rules 1 and 2 read with Section 151 of CPC against plaintiff Nos.1 and 2 from alienating the suit schedule ‘B’ property. The Trial Court has allowed the said application on 19.06.2019 and the said order of temporary injunction is still in force. During the subsistence of the said order of temporary injunction on 24.06.2022, plaintiff Nos.1 and 2 have sold the suit schedule ‘B’ property in favour of plaintiff Nos.3 and 4. Hence, plaintiff Nos.3 and 4 have stepped into shoes of plaintiff Nos.1 and 2.

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It is argued by the learned Senior Counsel

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appearing for the respondents/defendants that plaintiff Nos.1 and 2 have violated the order of temporary

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injunction passed by the trial Court and for which, a separate proceeding was initiated and the same is pending before the Trial Court. Hence, submitted that plaintiff Nos.3 and 4 also do not take different view as that of plaintiff Nos.1 and 2.

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Though, according to the defendants, plaintiff Nos.1 and 2 have violated the order of temporary injunction as they have sold the suit schedule ‘B’ property to plaintiff Nos.3 and 4, the question is whether, in the common passage, when the plaintiffs are laying water pipeline and the sanitary pipeline for discharge of waste materials, whether this can be prevented in the background that these are the basic necessities for life. The proceeding for violation of order temporary injunction is different thing, but on the guise of it, how far preventing plaintiff Nos.3 and 4, restraining them from laying water pipeline and sanitary pipe line and getting other basic amenities, could be prevented. It is the pleading of the plaintiffs that in the sale deed while purchasing the suit

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schedule ‘B’ property, there is a recital in the said sale deed regarding usage of passage and relinquishing rights of 2 and ½ feet on the northern side of the suit schedule ‘B’ property by the plaintiffs. Now at the most, plaintiff Nos.1 and 2 have started the work regarding laying pipeline and sanitary pipeline for making proper way for drinking water for the house and discharge of liquid waste materials through sanitary pipes. The Trial Court devoted much space to discuss principles of governing law of injunction, but the Trial Court, in its cryptic order at paragraph No.17, stated that the plaintiffs have executed the sale deed in respect of suit schedule ‘B’ property in favour of proposed plaintiff Nos.3 and 4 on 24.06.2022 in violation of the order of injunction and hence formed opinion that the defendants have made out prima facie case and granted an order of temporary injunction restraining the plaintiffs from carrying out work on the schedule passage.

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Prima facie, from the sale deed while purchasing the suit schedule property, there is a recital to leave a common passage of 5 x 30 feet width for utilization of the common passage and for providing ingress and egress to the plaintiffs to the suit schedule ‘B’ property. At the most, it is an attempt made by the plaintiffs to lay separate pipeline for drinking water to the suit schedule ‘B’ property and laying pipeline for discharging liquid waste materials. The Trial Court has not considered this aspect before granting an order of temporary injunction, whether it would cause injury or loss to the plaintiffs or not. The Trial Court has just swayed away on the fact that while passing an order of temporary injunction that in violation of the order of temporary injunction, the suit schedule ‘B’ property was sold out. However, the Trial Court has not considered that if an order of temporary injunction is granted as prayed for by the defendants, then in what way it would cause loss and injury to plaintiff Nos.3 and 4. Therefore, the order passed

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by the Trial Court is liable to be interfered with. Thus, the

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impugned order passed by the Trial Court is set aside. Accordingly, I answer point Nos.(i) to (iv) in the Affirmative. Thus, the appeal is liable to be allowed.

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Therefore, considering the facts and

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circumstances involved in the case and respective pleadings, certain directions are necessary to be issued, which are as follows:

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a. The proposed plaintiff Nos.3 and 4 and defendants shall not make any construction over the common passage of 5 x 30 feet as set out in the registered sale deed dated 05.12.2008 of selling suit schedule ‘B’ property.

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b. The appellants/proposed plaintiff Nos.3 and 4 are given liberty to lay pipeline under the common passage only under the beneath of laying pipe for drinking water, sanitary pipes and if necessary to take electricity connection without affecting the defendants right to make use of other side of their house.

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c. The defendants shall not make any construction affecting the ingress and egress through the common passage.

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d. Plaintiff Nos.3 and 4 after laying pipeline as above stated under the ground and make surface so as to be conducive for making

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normal use of the common passage by the defendants.

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e. The proposed plaintiff Nos.3 and 4 on the guise of laying pipes under the beneath of the common passage, shall not in any way make works so as to obstruct the defendants right to use common passage.

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In the result, I proceed to pass the following:

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ORDER

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i. The appeal is allowed.

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ii. The impugned order dated 11.02.2025 passed on I.A.No.XVII filed under Order XXXIX Rules 1 and 2 of CPC in OS.No.3938/2015 on the file of LXXV Addl. City Civil and Sessions Judge, (CCH-76), Bangalore is hereby set aside and certain directions are issued as above stated.

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iii. Both the parties shall obey the directions as stated at paragraph No.24.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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PB/SRA

Lokesh Naik M L v. Sri. H P Vedavyasacharya

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Lokesh Naik M L v. Sri. H P Vedavyasacharya

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