Sri. H. M .Prakash Vs Sri. M. Mariyappa

SRI. H. L. SOMASHEKAR AGED ABOUT 56 YEARS, S/O. LAKSHMAIAH REDDY, ALL ARE RESIDENTS OF HALANAYAKANAHALLI, CARMALARAM POST, VARTHUR HOBLI, BENGALURU-560 035.

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(BY SRI. SURESH REDDY, A.M, ADVOCATE)

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…APPELLANTS

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AND:

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SRI. M. MARIYAPPA AGED ABOUT 38 YEARS, S/O. AMRUTHAIAH, R/AT NO. 715, 23^RD CROSS, L.R. NAGAR, VIVEKNAGAR POST, BENGALURU-560 047.

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…RESPONDENT

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(BY SRI. RAMESH ADITHYA, ADVOCATE)

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2 - NC: 2025:KHC:10272 MFA No. 4396 of 2018

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THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.2 6.04.2018 PASSED ON IA NO.1 IN O.S.NO.472/2018 ON THE FILE OF THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING IA NO.1 FILED U/O.39 RULE 1&2 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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Though the appeal is listed for admission, but with consent of both the learned counsels appearing for the parties, the matter is taken up for final disposal.

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The plaintiffs in O.S.No.472/2018 have filed this appeal questioning the order passed on I.A.No.I filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC in O.S.No.472/2018 on the file of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as ‘the Trial Court’ for short) thereby, an application filed for temporary injunction was dismissed.

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3 - NC: 2025:KHC:10272 MFA No. 4396 of 2018

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For the sake of convenience and easy

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reference, the parties are referred to as per their rankings before the Trial Court.

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The plaintiffs have filed suit for declaration, possession, mandatory injunction and for permanent injunction stating that the plaintiffs are absolute owners of suit schedule ‘B’ property which is part and parcel of suit schedule ‘A’ property which is encroached by the defendant and was trying to put up construction therefore filed suit for the reliefs above claimed. Also, filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of CPC praying to grant an order of temporary injunction restraining the defendant, his agents, henchmen or anybody claiming through him from altering and putting construction on suit schedule ‘B’ property. The Trial Court has dismissed the said application on the reasons that the plaintiffs have not made out prima facie case hence there is no balance of convenience. Further, the Trial Court observed that without conducting survey and without any

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4 - NC: 2025:KHC:10272 MFA No. 4396 of 2018

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sketch being obtained regarding alleged encroachment on what basis the plaintiffs are claiming that defendant has encroached 2185 sq. ft. in the suit schedule ‘A’ property is not explained by the plaintiffs. Also, assigned reason that the defendant has constructed building up to ground floor therefore dismissed the application.

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It is submitted that now the defendant has completed the construction on the suit schedule ‘B’ property. Whether, the defendant has encroached the property or not is the question to be adjudicated in the suit, but during such adjudication the Trial Court shall not get influence on the observations made in the impugned order. The observations made by the Trial Court in the impugned order is nothing but more or less appreciating the evidence on record therefore what are the observations made in the impugned order shall not be construed on merits involved in the case and the Trial Court while deciding the case shall not be influenced by the said observations.

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5 - NC: 2025:KHC:10272 MFA No. 4396 of 2018

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Further, the appellant has filed an application under Order XXVI Rule 9 of CPC for appointment of Court Commissioner and it is submitted that still the said application is pending for consideration. Further submitted that said application will be considered by the Trial Court after completion of evidence of both the parties.

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The Trial Court is directed soon after the completion of defendant evidence shall consider the said application filed for appointment of Court Commissioner and decide the said application on merits in accordance with law. Also expedite the trial and dispose of the suit on merits in accordance with law as expeditiously as possible.

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With the above said observations, the appeal is disposed of.

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SD/-

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(HANCHATE SANJEEVKUMAR) JUDGE

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SRA List No.: 1 Sl No.: 33

Sri. H. M .Prakash v. Sri. M. Mariyappa

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Sri. H. M .Prakash v. Sri. M. Mariyappa

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