Smt. N A Hemavathy vs Sri M Anantha Murthy
2022 Latest Caselaw 3383 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 28 T H DAY OF FEBRUARY, 2022

                           BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

             MFA NO.5180 OF 2021 (CPC)


BETWEEN:


1.    Smt. N.A.Hemavathy,
      D/o. N.H.Narayana Reddy,
      Aged about 47 years,

2.    Smt. T.Pushp a,
      W/o. Sri N.H.Anantha Reddy,
      Aged about 65 years,

3.    Smt. N.A.Nalina,
      D/o. Sri N.H.Anantha Reddy,
      Aged about 42 years,

4.    Smt. N.A.Kavitha,
      D/o Sri N.H.Anantha Reddy,
      Aged about 41 years,
      By her General Power of
      Attorney Hold er,
      Sri N.H.Anantha Reddy,
      Aged about 76 years,

      All are residing at No.668,
      14 t h Cross, 14 t h Main Road ,
      II Phase, J.P.Nagar,
      Beng aluru-560078.
                                         ...Appellants

(By Sri N Shankaranarayana Bhat, Advocate)
                           :: 2 ::



AND:


1.   Sri M.Anantha Murthy,
     S/o Late Munivenkatapp a,
     Aged about 61 years,
     Residing at No.335,
     Nag avarap alya,
     C.V.Raman Nagar Post,
     Beng aluru-560093.

2.   Sri M.Srinivas,
     S/o Late Munivenkatapp a,
     Aged about 59 years,
     Residing at No.335,
     Nag avarap alya,
     C.V.Raman Nagar Post,
     Beng aluru-560093.

3.   Sri Indusekhar Kolluri,
     Aged about 46 years,
     S/o Late K.Mohan Naidu,
     D.No.1/150, Ban garu Mitta,
     Near 200 ft. By Pass Road,
     Avilala Villag e & Post,
     Tirup athi Rural, Chittor District,
     And hra Pradesh-517501.
                                           ...Respondents

(By Sri Ashok Patil, Ad vocate for C/R3)


     This MFA is filed und er Ord er 43 Rule 1(r) of the
CPC., ag ainst the order d ated 30.07.2021 passed on
I.A. in O.S.No.125/2017 on the file of the VI
Additional Senior Civil Judge, Bengaluru Rural District,
Beng aluru, dismissing the application filed under
Order 39 Rule 1 and 2 of CPC.


      This MFA coming on for admission through video
conferencing this d ay, the Court delivered the
following:
                           :: 3 ::


                       JUDGMENT

Heard Sri. N. Shankarnarayana Bhat, counsel

for the appellants and Sri. Ashok Patil, counsel for

respondent no.3.

2. This appeal is filed by the plaintiffs

aggrieved by the order dated 30 t h July, 2021,

dismissing their application filed under Order 39

Rules 1 and 2 CPC.

3. The plaintiffs claim to be the absolute

owners of 4 acres of land in Sy.No.10 of Belthur,

Bidarahalli, Bengaluru East Taluk. The plaintiffs

are the legatees under the will executed by one

Nadiga Honnappa. One K.S. Syed Mohiuddeen was

the owner of the entire extent of 5 acres 13

guntas (excluding 10 guntas of 'B' Kharab) and

that he sold four acres of land in favour of one

Kempaiah on 23.2.1960. Thereafter three sale

transactions took place in respect of the said

property and at last Nadiga Honnappa purchased :: 4 ::

that property. Defendants 1 and 2 purchased 1

acre 23 guntas from the said K.S. Syed

Mohiuddeen and then sold the same to defendant

no.3 by executing the sale deed on 3.8.2012.

4. In the suit filed by the plaintiffs they

sought declaration of the title and a direction to

the defendants to vacate 23 guntas of land

occupied by them on the Southern side of the

plaintiffs' property. This 23 guntas of land is

separately described in schedule 'B' to the plaint.

It appears that the plaintiffs filed the suit when

the defendant no.3 undertook construction in

schedule 'B' property.

5. As the order of the trial court discloses,

the plaintiffs approached this court for the first

time when their application for temporary

injunction was dismissed. The appeal was allowed

and the case was remanded to the trial court for

deciding the application afresh. As the trial court :: 5 ::

granted temporary injunction second time also,

the defendants approached this court again. The

appeal filed by them was also allowed and the

order of granting injunction was set side and the

case was remanded to trial court once again for

deciding the case on merits by appointing a

Commissioner. A surveyor was appointed as the

Commissioner and he gave a report that there was

no encroachment. So based on the survey report

and also another document, i.e., the rough sketch

produced by the plaintiffs, the trial court came to

conclusion that there was no case for granting

temporary injunction. At that time the trial court

took into consideration that 60% of the work had

been completed and if injunction was granted at

that point of time, it would cause hardship to

defendant no.3. Therefore the plaintiffs are before

this court once again.

:: 6 ::

6. Having heard both sides, it may be stated

that actual dispute revolves round 10 guntas of

Kharab land. It is not in dispute that the entire

extent of land in Sy.No.10 is 5 acres 13 guntas,

including 10 guntas of 'B' Kharab land. It is not in

dispute that the plaintiffs' predecessor in title

purchased only 4 acres of land. The sale deed

executed in favour of defendants 1 and 2 shows

that only 01 acre 13 guntas of land was sold to

them, but when they sold to defendant no.3, the

extent was mentioned as 01 acre 23 guntas. This

is the reason for the entire dispute between the

parties. According to defendant no.3, the

Government issued an order granting 9 guntas of

land to him. But the plaintiffs dispute this grant.

7. The plaintiffs say that 23 guntas of land to

the Southern side of 4 acres has been encroached

by the defendants. Whether there is

encroachment or not does not become clear :: 7 ::

without taking measurement of entire extent of

land in Sy.No.10. Now the report of the

Commissioner is available and it shows that there

is no encroachment at all and this report is

disputed by the plaintiffs. The trial court has

clearly observed that it is only after completion of

trial, it can be decided whether the

Commissioner's report can be relied upon or not.

This finding appears to be correct.

8. Coming to the factual position, it is

observed by the trial court that 60% of the

construction has been completed and at this stage

if injunction is granted, the interest of defendant

no.3 would be affected. The plaintiffs also do not

dispute the construction having come up. This suit

is for possession of schedule 'B' property. Unless

the plaintiffs are able to establish that there has

been encroachment of 23 guntas of their land,

they will not be entitled to possession. In this :: 8 ::

view, if the trial court has come to conclusion that

there is no case for granting temporary injunction,

it may be stated that the trial court has exercised

discretion correctly. Therefore I do not find any

infirmity in the dismissal of the application.

9. Further, the interest of the plaintiffs should

also be protected, because in case if the plaintiffs

succeed in proving that the defendants have

encroached upon their land, they should get back

the encroached portion and in the meantime if

defendant no.3 completes construction and sell

away the apartments, ultimately the plaintiffs may

find it difficult to recover possession. Therefore

defendant no.3, who has undertaken construction,

is now directed to file an affidavit before the trial

court that in case the plaintiffs succeed in the suit,

he will not claim any equity. The affidavit shall be

filed by the defendant no.3 within two weeks

before the trial court. The plaintiffs are also :: 9 ::

permitted to put up a board at the construction

site displaying the details of pendency of suit.

Defendant no.3 is also subjected to a condition

that before selling the property, he must disclose

the pendency of the suit to his prospective buyers.

With the above observations, appeal is

disposed of.

Sd/-

JUDGE

sd