Sri K Channabasavaiah Vs Sri K a Ramanjanappa

S/O LATE K.A. RAMANJINAPPA, AGED ABOUT 36 YEARS, ALL ARE 1(A) TO 1(D) RESIDING AT NO.15/1, KADIGANAHALLI VILLAGE, CHIKKAJALA HOBLI, BANGALORE NORTH, BANGALORE - 562 157.

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SRI.K.A.SUBRAMANI, S/O SRI APPAIHANNA, AGED ABOUT 53 YEARS, R/AT KADIGANAHALLI VILLAGE, JALA HOBLI, BENGALURU NORTH TALUK, BENGALURU URBAN DISTRICT.

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2(A) SMT.VENKATALAKSHMAMMA, W/O SUBRAMANI, AGED ABOUT 59 YEARS,

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2(B) SRI. HARSHAVARDHAN.S, AGED ABOUT 39 YEARS, S/O LATE SRI SUBRAMANI,

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2(C) SMT.SHWETHA, AGED ABOUT 37 YEARS, D/O SUBRAMANI.K.A., ALL ARE 2(A) TO 2(C) R/AT NO.21, KADIGANAHALLI VILLAGE, JALA HOBLI, YELAHANKA, BANAGLORE - 562 157.

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…RESPONDENTS

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(BY SRI.V.N SHANKARE GOWDA, ADVOCATE FOR R1(A-D) AND R2(A-C) (ABSENT))

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO. QUASH THE IMPUGNED ORDER DTD.22.3.2017 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI IN MA NO.5/2017 VIDE

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ANNEX-B, SETTING ASIDE THE ORDER DTD.28.1.2017 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, DEVANAHALLI ON I.A.N0.1 IN O.S.NO.44/2016 AND CONSEQUENTLY CONFIRM THE ORDER OF THE TRIAL COURT.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The plaintiff in O.S.No.44/2016 pending on the file

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the Additional Civil Judge and JMFC, Devanahalli (henceforth referred to as 'Trial Court'), has filed this petition challenging the correctness of an order dated 22.03.2017, passed by the Senior Civil Judge and JMFC, Devanahalli (henceforth referred to as 'Appellate Court'), in M.A.No.5/2017 by which, it allowed the appeal and set aside the order of injunction granted by the Trial Court and remitted the case for reconsideration.

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A suit in O.S.No.44/2016 was filed for perpetual injunction in respect of a residential site bearing No.855/12/A (old No.1233) measuring 40 ft x 60 ft in Sy.No.29 of Kadiganahalli Village, Jala Hobli, Devanahalli Taluk, Bengaluru. The plaintiff claimed that he had

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purchased the suit property in terms of a sale deed dated 30.03.1981 and that his name was entered in the records

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of Sonnappanahalli Grama Panchayath and that he was paying the property tax etc., He claimed that the defendant Nos.1 and 2 were brothers and children of his vendor, who were disturbing his possession. Therefore, the plaintiff sought for perpetual injunction to restrain the defendants from interfering with his lawful possession in the suit property.

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An application was also filed by the plaintiff for interim injunction to restrain the defendants from interfering with his possession in the suit property pending disposal of the suit.

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The defendants contested the suit and claimed inter alia that the land in Sy.No.29 of Kadiganahalli Village abutted the National Highway No.7. They claimed that the National Highway Authority of India (henceforth referred to as ‘NHAI') took up widening of the existing two lane Highway into a six lane Highway with two lane of service

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road on either side and had reserved 16 feet land as the right of way after forming the road. They contended that the NHAI had acquired survey No.29 once in the year 2003 and later in the year 2010. As such, they contended that the suit property was used up for the widening of the National Highway and that the plaintiff did not disclose about the acquisition. The application for injunction was also contested on same grounds and it was claimed that the property of the plaintiff did not exist and hence, no injunction could be granted pending disposal of the suit.

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The Trial Court after considering the

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contentions urged in the application for interim injunction as well as objections thereto, held that the plaintiff had made out a prima facie case for grant of injunction. It also held that there was nothing placed before the Court to establish the contentions of the defendants that the property of the plaintiff was used up for widening of the road, though they furnished the notifications indicating the acquisition of portion of Sy.No.29.

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Being aggrieved by the said order of injunction,

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the defendants filed M.A.No.5/2017. The Appellate Court after considering the contentions urged by the defendants, held that the grant of an order of temporary injunction is discretionary and the party who approaches the Court should establish prima facie case in his favour. It held that though the Trial Court had held that there was a prima facie case in favour of the plaintiff, it did not consider the other questions i.e., balance of convenience and irreparable loss and injury that may be caused by grant of an order of injunction. It held that the Court was bound to look into the assertions made by the defendants in their written statement and objections and the notification produced by them before arriving at a conclusion that there was a prima facie case and that the balance of convenience lay in favour of the plaintiff and that he would be exposed to loss and injury by refusing to grant an order of injunction.

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Being aggrieved by the said order, the plaintiff

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is before this Court in this writ petition.

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Learned counsel for the plaintiff contends that

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the plaintiff had purchased the suit property from the father of the defendants and therefore, the defendants cannot dispute the existence of the suit property. She submits that the plaintiff had produced the original of the sale deed executed by the father of the defendants to establish that the plaintiff was lawfully entitled to the suit property.

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The learned counsel for the respondent Nos.1(a-b) and 2(a-c) is absent and therefore, this Court did not have the benefit of his submissions.

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Be that as it may, a perusal of the written statement filed by the defendants show that after the suit property was purchased by the plaintiff in the year 1981, portion of Sy.No.29 was acquired by the National Highway Authority for widening the National Highway No.7. The defendants also placed on record the notifications, which

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indicated that portion of Sy.No.29 was acquired for the widening of the road. In view of the contention of the defendants that the property of the plaintiff was used up for widening of the road, the Court was bound to thoroughly peruse the material on record before coming to the conclusion that the plaintiff had made out a prima facie case for grant of injunction. The Appellate Court has therefore rightly considered these contentions and has rightly held that the matter requires reconsideration by the Trial Court. Hence, the impugned order does not warrant interference.

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The writ petition is dismissed .

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Sd/(R. NATARAJ) JUDGE

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BKN/List No.: 1 Sl No.: 1

Sri K Channabasavaiah v. Sri K a Ramanjanappa

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Sri K Channabasavaiah v. Sri K a Ramanjanappa

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