Sri Shankaregowda Vs Sri Channegowda

1(a) MANJULA W/O LATE SHANKAREGOWDA AGED ABOUT 36 YEARS R/AT. NO.2416, 2^ND CROSS MARIGOWDA LAYOUT NEAR KALEGOWDA SCHOOL MANDYA TOWN MANDYA DISTRICT-571401.

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1(b) ABHILASH K.S. S/O LATE SHANKAREGOWDA AGED ABOUT 36 YEARS R/AT. NO.2416, 2^ND CROSS MARIGOWDA LAYOUT NEAR KALEGOWDA SCHOOL MANDYA TOWN MANDYA DISTRICT-571401.

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1(c) ASHWINI K.S. D/O LATE SHANKAREGOWDA AGED ABOUT 33 YEARS R/AT. NO.2416, 2^ND CROSS MARIGOWDA LAYOUT NEAR KALEGOWDA SCHOOL MANDYA TOWN MANDYA DISTRICT-571401.

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NC: 2025:KHC:27324 W.P. No.13655/2020

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HC-KAR

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1(d) ANUSHA K.S. D/O LATE SHANKAREGOWDA AGED ABOUT 33 YEARS R/AT. NO.2416, 2^ND CROSS MARIGOWDA LAYOUT NEAR KALEGOWDA SCHOOL MANDYA TOWN MANDYA DISTRICT-571401.

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…PETITIONERS

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(BY SRI. VIJAY SHETTY B, ADV.,)

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AND:

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SRI. CHANNEGOWDA S/O LATE MARIGOWDA AGED ABOUT 60 YEARS R/AT 2ND CROSS MARIGOWDA LAYOUT NEAR KALEGOWDA SCHOOL MANDYA TOWN MANDYA DISTRICT-571401.

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…RESPONDENT

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(BY SRI. M.S. MANJANNA, ADV.,)

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THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE HON'BLE PRINCIPAL SENIOR CIVIL JUDGE, MANDYA VIDE ANNEXURE-A IN M.A.NO.10/2020 DATED 09.11.2020, BY CONFIRMING THE ORDER PASSED BY THE HONBLE II ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA ON IA.NO.1 FILED BY THE PETITIONER HEREIN UNDER XXXIX RULE 1 AND 2 OF CPC IN O.S.NO.700/2019 DATED 06.01.2020 & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2025:KHC:27324 W.P. No.13655/2020

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking for the following relief:

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"Issue a writ of certiorari to quash the order passed by the Hon'ble Principal Senior Civil Judge, Mandya vide Annexure-A, in M.A.No.10/2020 dated 09.11.2020, by confirming the order passed by the Hon'ble II Additional Civil Judge and JMFC, Mandya on I.A. No.1 filed by the petitioner herein under XXXIX Rule 1 and 2 of CPC in O.S.No.700/2019 dated 06.01.2020."

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Sri.B.Vijay Shetty, learned counsel appearing for the petitioners submits that the petitioner-plaintiff filed O.S.No.700/2019 seeking the relief of mandatory injunction and permanent injunction with regard to the suit schedule property. Along with the said suit, the plaintiff filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908. The Trial Court, after hearing both the parties, granted the temporary injunction vide order dated 06.01.2020 by restraining the defendant from putting up further construction work on 'B' schedule property till further orders of the Court. It is submitted that the respondents filed an appeal in M.A.No.10/2020 and the Appellate Court, under

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the impugned order reversed the order of the Trial Court. It is submitted that the plaintiff and the defendant are brothers and as per the registered partition deed dated 09.03.2004, a 4 feet common passage has been earmarked. However, the defendant started putting up construction on his property by encroaching portion of passage of property. It is also submitted that this Court on 28.01.2021 directed the parties to be present before the Court and accordingly, the parties were present and on 12.02.2021, this Court has recorded that one side wall of the plaintiff's building has been left unplastered because of the objection of the defendant. This Court permitted to accomplish the plastering and repair works to the wall of the building in question and in doing that the respondent shall not in any way object or interfere. However, if the respondent interferes with the completion of plastering work, he would run the risk of being prosecuted for criminal trespass. It is submitted that the aforesaid work of plastering has now been completed. Hence, he seeks to direct the parties to maintain status quo till the completion of the suit.

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HC-KAR

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However, Sri.M.S.Manjanna, learned counsel for the respondent disputed the same and submits that there has been no encroachment as alleged in the plaint. On the upper side of the window, there is a sajja which in no way comes in the 4 feet common passage as alleged. He further submits that he has no objection if the Court directs the parties to maintain status quo till the disposal of the suit.

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Having heard the learned counsel for both the parties, having meticulously perused the material available on record and considering the nature of the dispute between the parties, I am of the considered view that since the interim order dated 30.11.2020 and the subsequent order passed by this Court are in force and the suit is still pending, the interest of justice would be met if the Trial Court is directed to dispose the suit by directing the parties to maintain status quo .

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