Smt Vijaya Kumari Vs Sri Lakshminarayana H

THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 31.07.2025 PASSED ON I.A.NO. 2 AND 4 IN O.S. NO. 3482/2024 ON THE FILE OF THE XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH.7), ALLOWING IA NO.2 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC AND DISMISSING THE I.A.NO. 4 FILED UNDER ORDER 39 RULE 4 READ WITH SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The appeal is filed by appellants/defendant Nos.1 to 3 questioning the order passed on I.A.No.2 filed under Order XXXIX Rule 1 and 2 CPC in O.S.No.3482/2024 dated 31.07.2025, whereby the trial Court had granted an order of temporary injunction restraining the defendants/ appellants from interfering with the peaceful possession of the plaintiff over the suit schedule property.

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The suit is filed for permanent injunction stating that the plaintiff is the owner of the suit schedule property and the defendant is putting up construction abutting to

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the suit schedule property which is causing damage. Therefore, filed the suit for permanent injunction.

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Learned counsel for the appellants/defendants

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submitted that the defendants are the owners of site No.116, Khaneshmari No.43 and the plaintiff is the owner of site No.116 Panchayath Khata No.44, which are adjacent to each other. He submitted that the trial Court has granted an order of temporary injunction against the defendants restraining them to putting up any construction causing damage to the house of the plaintiff. Learned counsel further submitted that originally the site No.116 was larger extent and it was divided between Thimma and Maddurappa as per partition deed dated 08.03.1956.

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Learned counsel for respondent/plaintiff submitted that the partition is in respect of site No.115 but not in respect of site No.116. But, learned counsel for the appellants/defendants submitted that in the said partition deed, the site number is wrongly shown as 115 but it ought to have been 116 and it was corrected in the same

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deed in subsequent page by mentioning site number as 116. It is submitted that Thimma has sold 1/2 share portion to one Bayamma who is the wife of Maddurappa through registered sale deed dated 02.09.1964 and thereafter, necessary revenue entries made in favour of the Bayamma by mentioning dimensional property as 24 x 29 as per the sale deed. Therefore, after selling the property to Bayamma, Maddurappa had become owner of the site to the extent of 36 x 29. Therefore, learned counsel for the appellants submitted that now the defendants are putting up construction over the site of dimension 36 x 24 because remaining 5 feet as per the contentions of the defendants that said 5 feet is with the plaintiff. Therefore, the defendants have started construction of the house having dimension of 36 x 24 abutting to the plaintiff's house. It is the counter arguments by the respondent/plaintiff that the defendants without leaving set back as required under law, erecting pillars adjacent to the wall and foundation of the plaintiff's

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house, have started construction. Therefore, the plaintiff

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was constrained to file suit and the application filed for temporary injunction was rightly considered by the trial Court. Thus, granted an order of temporary injunction which needs no interference.

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Heard the arguments from both sides and perused the materials furnished in the appeal.

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Upon various submissions and perusal of the

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materials on record, the following points arises for consideration of this Court are:

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(i) Whether, under the facts and circumstances of the case, the defendants/appellants demonstrate that the plaintiff has not made out prima facie case so as to not to grant an order of temporary injunction?

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(ii) Whether, under the facts and circumstances of the case, the defendants/appellants demonstrate that the plaintiff has not made out balance of convenience so as to not to grant an order of temporary injunction?

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(iii) Whether, under the facts and circumstances of the case, the defendants demonstrate that if an order of temporary injunction is not granted, the plaintiff will not suffer any loss or injury?

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(iv) Whether the order passed by the trial Court by granting an order of temporary injunction requires interference from this Court?

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There are many triable issues involved in the

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case regarding dimension of Site No.116, Khaneshmari No.43 and Panchayath Khata No.44. It is the submission made by the learned counsel for the appellants/defendants that the defendants have become owner of the property having dimension of 29 x 36 but the defendants are constructing on the dimension of 24 x 36 because the remaining 5 feet left to the house of the plaintiff. Therefore, by adjusting the said dimension of 24 x 36, the defendants have putting up construction. Further, it is submitted that the sites are situated in Gramatana Zone. Therefore, there is no need to leave set back and the plaintiff has not stated proper dimension of their site.

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Therefore, it is submitted that the trial Court is not correct.

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Both sides counsels have produced some

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documents and photographs. It is not disputed that at this stage, Maddurappa had become owner of the site of dimension of 29 x 36 after purchasing the 1/2 site from Thimma through his wife Bayamma. The tax paid receipts produced by the appellants/defendants to the extent of 1044 square feet area. The appellants/defendants have produced khata certificates of site No.116 showing the sital area as 1044 square feet. Therefore, it is the case of the defendants that the defendants are owner of the sital area 29 x 36 equal to 1044 square feet. Therefore, the defendants have started construction by giving up 5 feet length and restricting the construction at the width of 24 feet in breadth and 36 feet length at the end.

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Though, the defendants are contending that the

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defendants have become owners of 1044 square feet site, which is amounting to dimension of 29 x 36 feet, but the

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plaintiff is contending that the dimension of their site is 25 x 30 and produced the revenue records showing the plaintiff's dimension is 25 x 30, which standing in the name of Venkatappa S/o. Chikka Ajjappa. It is the case of the plaintiff that the plaintiff has become owner of site dimension of 25 x 30 feet as the said Venkatappa has executed General Power of Attorney in favour of the plaintiff. Therefore, the plaintiff is claiming the ownership over 25 x 30 feet. Though the plaintiff has not produced documents in this regard, but the plaintiff herein is found to be prima-facie in possession of 25 x 30, then the question to be tried before the trial Court is regarding how the plaintiff acquired the site extent of 25 x 30 feet. But as per photographs shown by the appellants/defendants, the plaintiff is in possession over the site and house constructed on it. The photographs are showing that the defendants started laying the foundation just abutting to the foundation and wall of the plaintiff's house without leaving a setback. It is the contention of the

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respondent/plaintiff that now the said area comes within the jurisdiction of Bruhath Bengaluru Mahanagara Palike (BBMP) and without obtaining sanction plan, the defendants have started construction.

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The appellants/defendants have not produced sanction plan. Even the counsel for the appellants have not convinced the Court why sanction plan is not required. Whatever may be, the appellants/defendants have not produced sanction plan for making construction over the dimension having 24 x 36. But the photographs produced by the plaintiff that where the pillars having been tried to put up abutting to the plaintiff's property and photographs have shown the inner side wall of the plaintiff is found to be damaged. Though it is the contention of the learned counsel for the appellants/defendants that plaintiff himself has encroached the 5 feet of the defendants' property, the defendants at this stage have not established why they have not made any efforts to get back the encroached property alleged to have been encroached by the plaintiff

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as per the case of the defendants. Therefore, regarding dimension of the property of the plaintiff and defendants and the title of the plaintiff and defendants on the respective sites are to be decided in the trial. Therefore, at this stage, the plaintiff has made out a prima facie case and balance of convenience and if an order of temporary injunction is not granted, then there are chances of damaging the wall of the plaintiff's house towards northern side. Therefore, in such an even the plaintiff will put into loss and injury. Therefore, the trial Court is correct in granting an order of temporary injunction.

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Learned counsel for the appellant at this stage submitted that the defendants are ready to construct a new wall for the plaintiff, but that is to be considered at a later stage. However, as of now, it is prima facie found that the defendants have started to put up construction just abutting to the wall of the plaintiff without leaving setback and also the defendants have not produced any sanction plan while considering the application filed for

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seeking to grant an order of temporary injunction. It is submission of the appellants/defendants that now the BBMP is converted as Greater Bengaluru Authority Act. Hence, the defendants are unable to obtain sanction plan, but whatever may be the reasons for non-production of the sanction plan, but as of now, there is no sanction plan on behalf of the defendants to put up construction. Therefore, if the defendants are permitted to put up construction at this stage, then there are chances of causing loss and injuries to the plaintiff as above stated. When the dimension of the sites of the plaintiff and defendants, which is triable issue before the Trial Court. Hence, I answer point Nos.(i) to (iv) in the Negative. Thus, there is no need to make interference with the order passed by the Trial Court. Thus, the appeal is liable to be dismissed.

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Accordingly, the appeal is dismissed.

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If the competent authority issues a sanction

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plan to the defendants, then the defendants are at liberty

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to put up construction as per the sanction plan subject to

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(i) seeking permission by the Trial Court upon the application to be filed and after obtaining objection and affording opportunity of being heard to the plaintiffs.

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(ii) The Trial Court is directed to expedite the trial and dispose of the suit within one year from the date of receipt of copy of the order.

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The Trial Court is directed to expedite the trial

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and dispose of the suit as expeditiously as possible.

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SD/(HANCHATE SANJEEVKUMAR)

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JUDGE

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KA: Para 1 to 10 SRA: Para 11 to end List No.: 1 Sl No.: 19 CT: BHK

Smt Vijaya Kumari v. Sri Lakshminarayana H

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Smt Vijaya Kumari v. Sri Lakshminarayana H

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