Sri. Ningaraju vs Sri. Kodigowda
2021 Latest Caselaw 6263 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF DECEMBER 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

         WRIT PETITION NO.2995/2019 (GM-CPC)


BETWEEN :


1.      SRI. NINGARAJU
        S/O LATE SRI KULLANA BOREGOWDA,
        AGED ABOUT 32 YEARS,

2.      SMT NINGAMMA
        W/O LATE SRI KULLANA BOREGOWDA,
        AGED ABOUT 63 YEARS,

        BOTH ARE R/AT
        HUNASAGAHALLI VILLAGE,
        BANNUR HOBLI,
        T.NARASIPURA TALUK,
        MYSURU DISTRICT-571101
                                   .... PETITIONERS

(BY SRI. BHARGAV G, ADVOCATE FOR
    SRI. C R GOPALASWAMY, ADVOCATE)


AND :

1.      SRI. KODIGOWDA
        S/O LATE SRI CHIKKERANA ARASEGOWDA,
        AGED ABOUT 62 YEARS,
                          2



2.   SRI NAGARAJU
     S/O LATE SRI CHIKKERANA ARASEGOWDA,
     AGED ABOUT 50 YEARS,
     BOTH ARE R/AT
     HUNASAGAHALLI VILLAGE,
     BANNUR HOBLI,
     T.NARASIPURA TALUK,
     MYSURU DISTRICT-571101.
                              ... RESPONDENTS


(BY SRI. HANUMANTHAPPA B HARAVI GOWDAR,
ADVOCATE)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 28.01.2016 PASSED ON
I.A.NO.I IN O.S.NO.277/2015 ON THE FILE OF THE CIVIL
JUDGE & JMFC, T.NARASIPURA VIDE ANNEXURE-E &
JUDGMENT       DATED    29.09.2018    PASSED      IN
M.A.NO.01/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE & JMFC, T.NARASIPURA VIDE ANNEXURE-H,
CONSEQUENTLY DISMISS THE APPLICATION FILED BY
THE RESPONDENTS/PLAINTIFFS UNDER ORDER 39 RULE
1 AND 2 CPC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING IN B GROUP, THIS DAY, THE COURT MADE THE

FOLLOWING:
                               3



                        ORDER

The petitioners are the defendants in

O.S.No.277/2015 on the file of the Civil Judge and

JMFC, T.Narasipura (for short, 'the civil Court'). The

petitioners have impugned the civil Court's order dated

28.01.2016 and the order dated 29.09.2018 in

M.A.No.01/2016 on the file of the Senior Civil Judge

and JMFC, Tirumakudalu Narasipura (for short, 'the

appellate Court'). The civil Court by the impugned order

dated 28.01.2016 has allowed the respondents'

application (I.A.No.I) under Order XXXIX Rule 1 and 2

read with Section of the Code of Civil Procedure, 1908

(for short, 'the CPC') restraining the petitioners from

interfering with the respondents' possession of the

immovable property described as measuring East to

West - 42 ½ feet and North to South - 62 feet (the

subject property). The appellate Court has affirmed the

civil Court's order by its order dated 29.09.2018.

2. The respondents have filed the suit in

O.S.No.277/2015 for declaration that they are the

owners of the subject property asserting that this

property was granted to their father in the year 1996-

1997 and their father, who had availed financial

assistance under a Government scheme, constructed

thatched accommodation for the family. With such

accommodation collapsing and because of the inter se

arrangement between them, the respondents have

mortgaged their respective portions in the subject

property under the registered mortgage deeds and put

up residential accommodation in a portion of the

subject property utilizing the remaining portion viz., the

Southern portion for the purposes of cattle shed and

other uses. It is obvious that the respondents are

categorical that they propose to construct toilets in this

vacant area and the petitioners are obstructing such

construction.

3. The petitioners, on the other hand, contend

that they are the owners of the property that is situated

on the Southern side of the subject property but the

respondents have mischievously shown the Southern

property as being bounded by the property of

Sri. Chikkeerana Arasegowda, and the respondents

have encroached an extent of 10 feet along the Northern

edge of their property. In fact, the petitioners have

reserved liberty to institute appropriate proceedings for

recovery of the encroached extent of 10 feet in their

property which is described as part of the subject

property.

4. The civil Court has allowed the respondents'

application observing that while the respondents have

placed on record the mortgage deeds executed by their

father and also other revenue records, the petitioners

rely upon an unregistered gift deed to establish their

title and possession of the property on the Southern

side of the subject property. On the question of balance

of convenience and irreparable injury, the civil Court

has concluded that the respondents intend to construct

a toilet, and there must be an order of injunction

restraining the petitioners from interfering with the

respondents' use and possession of the subject property

to avoid open defecation to promote health.

5. The appellate Court affirming the civil

Court's conclusions has rejected the petitioners' appeal.

The appellate Court has observed that though the

petitioners contend that they are the owners of the

property to the Southern side of the subject property

and the respondents, who are the owners of the

property on the Northern side, have encroached an

extent of 10 feet, they have neither in their written

statement nor in the objection statement referred to the

measurements of their property and their reliance on

the unregistered deeds cannot overwhelm the reasons

assigned by the civil Court for grant of injunction.

6. The learned counsel for the petitioners

assert that the respondents have not produced even a

copy of the Grant Certificate issued in favour of their

father, and if they have not produced this document,

they cannot claim a better case than the petitioners.

The learned counsel argues that the respondents have

not placed any material on record to demonstrate that

the property to the South of the subject property is

owned by Sri. Chikkeerana Arasegowda and does not

belong to the petitioners. Therefore, neither the civil

Court nor the appellate Court could have opined that

the respondents have established a prima facie case.

7. The learned Counsel also submits that the

petitioners, in terms of the liberty reserved by them in

the written statement, have commenced their own suit

in O.S.No.26/2016 for vindication of their case that the

respondents have encroached an extent of 10 feet in

their property. He canvasses that in these

circumstances and to prevent precipitation, this Court

must direct the parties to maintain status quo.

8. It is obvious from the records that the

respondents, who have produced subsequent deeds of

mortgage and other revenue records, have not produced

a copy of the Grant Certificate issued in favour of their

father. The respondents, who are the plaintiffs, should

also establish that the property to the south of the

subject property is owned by Sri. Chikkeerana

Arasegowda. Ultimately the question: whether there is

encroachment, or a wrong claim, by the owners of the

two adjacent properties [if the ownership to the adjacent

properties are established] will have to be decided on

the basis of the respective material on record. The

disputed extent is East to West - 42 ½ feet and North to

South - 10 feet in the subject property, and if during the

pendency of adjudication of these questions in the

pending suits there is any change in this disputed area,

there could be protraction of the proceedings.

9. The question of prima facie case, balance of

convenience and irreparable injury should be

necessarily examined in the light of these

circumstances, but the Courts below have not. This

Court therefore, must interfere with the impugned order

but to a limited extent. The parties must be directed to

maintain status quo with regard to the extent measuring

East to West - 42 ½ feet and North to South - 10 feet in

the subject property but with liberty to the respondents

to construct only a toilet in this disputed area and

subject to the final outcome. The respondents cannot

put up any construction in this disputed area

measuring East to West - 42 ½ feet and North to South

- 10 feet except toilet. Therefore, the following:

ORDER

The petition is allowed in part and the impugned

order dated 28.01.2016 in O.S.No.277/2015 on the file

of the Civil Judge and JMFC, T.Narasipura and the

order dated 29.09.2018 in M.A.No.01/2016 on the file

of the Senior Civil Judge and JMFC, T.Narasipura are

modified directing the petitioners and the respondents

to maintain status quo over the disputed extent

measuring East to West - 42 ½ feet and North to South

-10 feet in the property bearing Janjar No.42/28/28

and 42/29/29 of B.Seehalli Village, Bannur Hobli,

T.Narasipura Taluk [the Subject Property] but with

liberty to the respondents to construct a toilet.

Sd/-

JUDGE

RB