Karnataka High Court
Kulumi Ashabi W/O Yusuf Sab vs Kulumi Fathimabi W/O Late Hamid Sab on 18 February, 2026
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NC: 2026:KHC-D:2476
WP No. 103460 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 18TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 103460 OF 2022 (GM-CPC)
BETWEEN:
KULUMI ASHABI W/O YUSUF SAB
AGE. 64 YEARS,
OCC. HOUSEHOLD WORK,
R/O. 13TH WARD , PATHANAGERI,
HARAPANAHALLI TOWN,
DIST. VIJAYANAGARA -583131.
...PETITIONER
(BY SRI. J. S. SHETTY, ADVOCATE)
AND:
KULUMI FATHIMABI W/O LATE HAMID SAB
AGE. 70 YEARS, OCC. HOUSEHOLD WORK,
R/O. 13TH WARD , PATHANAGERI,
Digitally signed by
YASHAVANT HARAPANAHALLI TOWN,
NARAYANKAR
DIST. VIJAYANAGARA.
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY MISS. RANJITA ALAGWADI, ADV.
FOR SRI.PRAVEEN TARIKAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO, A) ISSUE A
WRIT OF CERTIORARI TO QUASH THE ORDER DATED ORDER
DATED 22.6.2022 PASSED IN M.A.NO.4/2022 AND
M.A.NO.5/2022 BY THE SENIOR CIVIL JUDGE AND JMFC,
HARAPANAHALLI, THE COPY OF WHICH HAS BEEN PRODUCED
HEREWITH AND MARKED AS ANNEXURE-A; B) ANY OTHER WRIT
OR DIRECTION WHICH THIS HONOURABLE COURT DEEMS FIT
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NC: 2026:KHC-D:2476
WP No. 103460 of 2022
HC-KAR
TO GRANT MAY KINDLY BE GRANTED IN FAVOUR OF THE
PETITIONER BY ALLOWING THIS WRIT PETITION WITH THE
COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY.
THIS WRIT PETITION, COMING ON FOR DISMISSAL, THIS
DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the orders passed in MA Nos.4 and 5 of 2022, dated 22.06.2022, by the Senior Civil Judge and JMFC, Harapanahalli, the plaintiff is before this Court.
2. The petitioner/plaintiff had filed suit in OS No.41/2022 seeking a declaration that the plaintiff is the owner and possessor of the suit schedule 'A' property as mentioned in the plaint sketch and seeking an injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff and also not to lay a foundation over the suit schedule 'B' property. Along with the suit, the plaintiff had also filed IA No.1 seeking an injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule properties and also not to lay a foundation and not to -3- NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR construct the illegal building as mentioned in the plaint sketch. It is the case of the plaintiff that one Kulumi Fakruddin Sab was the owner and possessor of the suit scheduled property. The said Fakruddin Sab had three sons and one of the sons by name Ismail Sab had a wife by name Kuthijabi. They were blessed with a daughter by name Kulumi Ashabi i.e., the plaintiff in the suit. The daughter, father and mother had got divided their properties equally and the same was mentioned in the plaint sketch. They had executed a registered Gift Deed dated 26.06.1979 in favour of the plaintiff in respect of the suit 'A' schedule property. On the basis of the registered Gift Deed dated 26.06.1979, name of the plaintiff was mentioned in the demand register extract as owner and possessor of the suit scheduled property. Earlier, the property was covered with a zinc sheet roofed mud house and now the said house collapsed and at present, the suit scheduled property is a vacant site bearing old Door No.577 and new Door No.408/577/408, measuring East-West:13.71 metres and North-South:6.85 metres situated at 13th ward, Pattanageri in Harapanahalli Town. It is the case of the plaintiff that earlier -4- NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR she had filed OS No.52/1998 against the very same defendant seeking the injunction, that came to be dismissed on the ground of variation of measurements in the records and description of the suit scheduled properties in the plaint. Against that, RA No.36/2006 was filed and the same was dismissed confirming the judgment and decree of the trial Court. It is further case of the plaintiff that she is in possession of the property even till today and in the earlier suit proceedings, the defendant did not deny the existence of plaintiff's property and also enjoyment of the plaintiff in respect of the suit schedule property. The defendant, whose land is situated towards southern side of the suit property, is trying to lay a foundation and trying to evict the plaintiff from the suit schedule property. In this regard, the plaintiff had also lodged written objections before the TMC, Harapanahalli on 08.02.2022 requesting the authorities to stop the illegal construction. Hence, the plaintiff had sought for injunction.
3. It is the case of the defendant that she had purchased the property from one Hafizabi for consideration of an amount of Rs.1,000/- through registered Sale Deed dated -5- NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR 12.01.1981. On the basis of the said registered Sale Deed, the defendant is in possession of the property. Out of the said property, the Karnataka Slum Development Board had sanctioned the house permission measuring east-west 14 feet and north-south 24.27 feet after verifying all the records. It is further case of the defendant that the defendant did not encroach any portion of the plaintiff's property.
4. The trial Court by order dated 5.3.2022 had granted injunction. While granting injunction, the trial Court had observed that the Gift Deed discloses that there is overwriting on the said document in respect of the suit property towards east-west and the same is shown as 30 feet instead of 20 feet and also boundary of the said property mentioned towards southern side, there is open space which belongs to Masuti. As per the plaint schedule, towards southern side, the property of the defendant is situated. Now the point for consideration is, how much area the defendant has encroached the suit property and according to pleading, her elder mother of the plaintiff sold the property in favour of the plaintiff. But the Gift Deed discloses that the suit schedule -6- NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR property was sold by Kuttejabi, W/o Driver Naseer Sab in favour of the plaintiff. Hence, the question as to who sold the suit property in favour of the plaintiff and who are in actual possession of the suit property and how much area, the defendant had constructed house by encroaching the suit property, has to be decided by the Court after a full-fledged trial. The trial Court further observed that on perusal of the photographs, it discloses that the construction is going on and the defendant stored the men and material on the suit property. At this stage, if the construction is stopped, it is the defendant, who will put to irreparable loss, hardship and injury. Therefore, the documents produced by the plaintiff are not sufficient to grant injunction. Hence, if the plaintiff succeeds to prove the case that the defendant had encroached the property and constructed the house, the defendant has to hand over the encroached area. Considering all these facts, in case ad-interim injunction is not granted, no hardship or any injury would be caused to the plaintiff. The trial Court felt that at this stage, the plaintiff failed to make out a prime facie case and as such, the balance of convenience does not lie in her -7- NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR favour. But in the operative portion of the order, the trial Court allowed IA No.1 filed by the plaintiff under Order XXXIX Rules 1 and 2 of CPC and restrained the defendant from not to lay a foundation and not to construct the illegal building over petition schedule 'B' property.
5. Aggrieved thereby, both the plaintiff as well as the defendant had filed MA Nos.4 and 5 of 2022. The appellate Court had dismissed the appeal filed by the plaintiff and allowed the appeal filed by the defendant i.e. MA No.4/2022. While allowing the appeal filed by the defendant, the appellate Court had observed that at this stage, the Court cannot come to the conclusion as to whether the defendant is constructing the building by encroaching the plaintiff's property or not, that requires a full-fledged trial. As per the schedule shown in the plaint, the defendant's property comes towards the southern side of the plaint schedule property. Therefore, it is clear that both plaintiff's and defendant's properties are different. As per the notice issued by the TMC, the defendant had started construction in her property. The trial Court had rightly observed that at this stage if the construction is stopped, the -8- NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR defendant would be put to irreparable loss, hardship and injury rather than the plaintiff. Though certain documents have been produced by the plaintiff, the same do not disclose that the defendant is constructing the house by encroaching the plaintiff's property. As rightly observed by the trial Court, the plaintiff had failed to show the prima facie case and the balance of convenience does not lie in her favour. The appellate Court had also observed that how all the issues are held negative against the plaintiff and how an injunction order is passed by the trial Court.
6. Learned counsel appearing for the petitioner/plaintiff submits that by placing all the documents, the defendant could demonstrate before the Court that she had a prima facie title to the property and if the construction is made by the defendant, it would cause a lot of hardship to the plaintiff, both the Courts have failed to appreciate the said fact. It is submitted that if the injunction is not granted and if the defendant proceeds with the construction, the petitioner will be put to lot of hardship; both the Courts below have failed to consider this aspect as well. It is submitted that the -9- NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR plaintiff had established a prima facie case, balance of convenience and irreparable loss, which were not considered by both the Courts.
7. Learned counsel for the respondent/defendant submits that the trial Court having given all findings in favour of the defendant, however, had granted injunction. It is further submitted that the appellate Court appreciating all the aspects, particularly with regard to the discrepancy and overwriting in the Gift Deed had rightly allowed the appeal filed by the defendant. Hence, there are no grounds to interfere with the well-considered order passed by the appellate Court.
8. Having heard the learned counsels on either side, perused the material on record. The suit is filed for declaration and injunction. Along with that, she had filed an IA seeking interim injunction. When an application is filed seeking interim injunction, the burden lies on the plaintiff to prove that there is a prime facie case and a balance of convenience and if the injunction is not granted, it would cause irreparable loss to the plaintiff. In this case, the plaintiff is alleging her right to the
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NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR property based on a gift deed. The defendant is also alleging her right to the property basing on a registered document. It is an admitted fact that both of them are neighbours. It is the case of the plaintiff that the defendant is trying to encroach the property of the plaintiff and to put-up the construction. While granting the injunction restraining the defendant from making construction, in a case of this nature, the prime facie title of the plaintiff is not relevant. According to both the plaintiff and the defendant, they are the owners of the property based on certain documents. Now the issue that has to be considered by the Court is, whether there is any material before the Court to show that in the land belonging to the plaintiff, the defendant is making any construction.
9. The trial Court as well as appellate Court had rightly observed that at this stage, the Court cannot come to a conclusion that the defendant is making construction by encroaching the land belonging to the plaintiff. The TMC had already granted permission to the defendant for making construction. The petitioner had given a complaint stating that without any permission, the defendant is making
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NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR construction, however, the same would be addressed by the local authorities basing on the complaint given by the plaintiff. Now at this stage, in the backdrop of these facts, if an injunction is granted, as held by both the Courts below, it would cause hardship and irreparable loss to the defendant and denied the injunction as sought for. However, the trial Court had rightly observed that in case if the Court comes to a conclusion that the defendant has encroached the property belonging to plaintiff and made construction, the Court will direct the defendant to remove the illegal construction, which is made by encroaching the property of the plaintiff. In these circumstances, there are no ground to grant injunction in favour of the plaintiff restraining the defendant from not to put up any construction in the schedule property. Though the trial Court had rightly held, but wrongly allowed the IA, which is contrary to the finding given by it. However, the appellate Court had corrected the same and refused to grant injunction against the defendant. In that view of the matter, this Court finds no reason to interfere with the order impugned. Accordingly, this Court proceeds to pass the following:
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NC: 2026:KHC-D:2476 WP No. 103460 of 2022 HC-KAR ORDER
i) The writ petition is dismissed.
ii) Pending I.As. in this petition shall stand closed.
Sd/-
JUSTICE LALITHA KANNEGANTI JTR CT: CNB List No.: 1 Sl No.: 2