Sri T S Nagaraja vs Smt Radhamma
2021 Latest Caselaw 82 Kant

                              1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

 MISCELLANEOUS FIRST APPEAL NO.5186 OF 2020 (CPC)


BETWEEN:

SRI.T.S. NAGARAJA
S/O LATE T.K.SAMPANGI
AGEDA ABOUT 67 YEARS
RESIDING AT NO.74/2
2ND MAIN, CHAMARAJPET
BENGALURU-560018
                                      ... APPELLANT
[BY SRI.N.K.RAMESH, ADVOCATE [VIDEO CONFERENCE]


AND:

1.    SMT. RADHAMMA
      W/O VENKATESH C
      AGED ABOUT 60 YEARS
      R/AT NO.12, 2ND CROSS
      14TH MAIN, NEAR PARK
      MAGADI MAIN ROAD
      BENGALURU-560 023.

2.    SRI. S. RAJU
      S/O LATE SUBRAMANI
      AGED ABOUT 48 YEARS
      R/AT MO.7, 3RD MAIN ROAD
      4TH CROSS, T.R.NAGAR
      BENGALURU-560 028.
                               2



3.   SRI. SATISH K.
     S/O KRISHNAPPA
     AGED ABOUT 40 YEARS
     R/AT NO.12, 2ND CROSS
     14TH MAIN, NEAR PARK
     MAGADI MAIN ROAD
     BENGALURU-560 023.                  ... RESPONDENTS

[BY SRI. A.G.RAVIKUMAR, ADVOCATE FOR
C/R [PHYSICAL HEARING]


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
15.09.2020 PASSED ON IA.NO.1, O.S.NO.3232/2020 ON
THE FILE OF THE II ADDITIONAL CITY CIVIL AND
SESSIONS    JUDGE,    BENGALURU   CITY   (CCH-17),
REJECTING I.A.NO.1 FILED UNDER ORDER 39, RULES 1
AND 2 READ WITH SECTION 151 OF CPC.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

This appeal is filed challenging the order dated

15.9.2020 passed by the II Additional City Civil Judge,

Bangalore, in O.S. No.3232/2020 by which the application

filed by the appellant-plaintiff for an order of temporary

injunction restraining the respondents -defendants from

putting up construction over the suit property was

rejected.

2. The facts which are evident from the plaint are

that the plaintiff claims title to the suit property in terms of

the sale deed dated 9.9.1991 executed by one N.

Narasimhaiah, who had purchased it from one N.S.

Rajagopal in terms of the sale deed by 26.11.1980. The

plaintiff contends that the defendants taking advantage of

the lock down due to COVID-19 pandemic, had trespassed

into the suit property and put up construction illegally.

The plaintiff alleged that he came to know of the said

construction on 6.7.2020 and filed a suit for declaration of

his title to the suit property and for consequent relief of

possession of the suit property by removing the

construction put up by the defendants on the suit property.

The defendants contend that they are the owners in

possession and enjoyment of the suit property and claimed

title through Seetharamaiah who was the owner of the

land bearing Sy. No.123 of Katriguppe village. The

appellant-plaintiff had filed an application for temporary

injunction restraining respondents-defendants from putting

up further construction on the suit property. The

application was contested by the respondents-defendants

by filling their objection and they contended that they

were the owners of the suit property and that they were in

possession of the same and that they had constructed a

building thereon. The respondents-defendants denied the

title of the appellant-plaintiff to the suit property.

3. The Court below noticed that the suit was for

declaration of title and for consequent relief of possession

of the suit property by removing structures put up by the

respondents-defendants over the suit property. The Court

below also noticed that both the parties were claiming title

over the suit property, though under different owners. The

appellant-plaintiff claimed that the suit property lay within

Sy. No.124 while the respondents-defendants claimed that

the suit property lay within Sy. No.123. Since the plaintiff

categorically admitted that the defendants were in

possession of the suit property and that they had put up

construction, the Court below refused to grant an order of

temporary injunction as that would have tilted the balance

in favour of the plaintiff. Feeling aggrieved by the

aforesaid order, the plaintiff is in appeal.

4. I have heard learned Counsel for the appellant

and learned Counsel for the respondents.

5. As rightly contended by learned Counsel for the

respondents-defendants, the suit is filed not only for the

relief of declaration but also for possession of the suit

property by removing the construction put up by the

respondents-defendants. When the appellant-plaintiff had

admitted that the respondents-defendants are in

possession of the suit property and have put up

construction thereon, the title of the respective parties to

the suit property has to be decided by the Court below. In

that view of the matter, even if the respondents-

defendants put up construction of whatsoever nature over

the suit property, the same shall be subject to the

outcome of the suit. If the appellant plaintiff succeeds in

the suit, any or all construction that may be put up in the

suit property shall be liable to be removed. Hence, the trial

Court was justified in rejecting the application for

temporary injunction. I do not see any merit in this

appeal.

Hence, the appeal is dismissed.

Sd/-

JUDGE Cs