Karnataka High Court
Sri.B.G.Nataraju vs Sri.Vokkodaiah on 30 March, 2022
Bench: Sreenivas Harish Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MFA NO.381 OF 2022 (CPC)
BETWEEN:
Sri B.G. Nataraju
S/o Late Gurusid dapp a
Aged about 40 years
R/at No.150
2 n d Main, MEI Layout
Bag alag unte
Beng aluru-560 073
...Appellant
(By Sri Akash V T, Advocate)
AND:
Sri Vokkod aiah
S/o Late Honnag iraiah
Aged about 56 years
R/at No.7, Assessment No.21/2
Near Mayanna Layout
Srikantapura, Nagasand ra Post
Beng aluru-560 073
...Respondent
(By Sri K. Narayana Swamy, Advocate)
This MFA is filed under Order 43 Rule 1(r) of
CPC, against the order d ated 06.08.2021 p assed on
I.A.No.1 in O.S.No.4916/2020 on the file of
the VII Additional City Civil and Sessions Judge,
(CCH 19), Beng aluru, allowing I.A.No.1 filed under
Order 39 Rule 1 and 2 read with Section 151 of CPC.
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This MFA coming on for Admission this d ay, the
Court delivered the following:
JUDGMENT
Heard Sri Akash V T, counsel for the appellant
and Sri K. Narayanaswamy, counsel for the
respondent.
2. The appellant is the defendant in
O.S.No.4916/2020 on the file of the VII Additional
City Civil and Sessions Judge, Bengaluru. The
respondent being the plaintiff brought a suit
against the appellant for permanent injunction in
respect of the property bearing Site No.37, Katha
No.59 in Sy.No.65/3 situated at Muneshwara
Nagar, Bagalagunte village, Yeshwantpura Hobli,
Bengaluru North Taluk, measuring east to west 40
feet and north to south 15 feet, in all measuring
600 square feet.
3. It is the case of the plaintiff that he is
the absolute owner of the suit property having
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purchased it from the father of the appellant under
a registered sale deed dated 09.08.2004. Since
the plaintiff faced interference with his possession
from the appellant, he brought a suit for
permanent injunction. He also sought an order of
temporary injunction against the appellant pending
disposal of the suit. The Trial Court by its order
dated 06.08.2021, allowed the application filed by
the plaintiff/respondent under Order XXXIX Rules
1 and 2 CPC as per IA No.1 and granted temporary
injunction restraining the appellant/defendant
from interfering with the respondent's peaceful
possession and enjoyment of the plaint schedule
property.
4. It is the argument of the appellant's
counsel that after selling 600 square feet of
property to the plaintiff, there remained another
600 square feet of land. The plaintiff has
encroached upon the remaining land and the order
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of injunction granted by the Trial Court operates in
respect of the property which was not sold. He
also argues that the impugned order does not
disclose discussion on any of the documents
produced by the defendant and in this view, the
impugned order is to be set-aside.
5. The respondent's counsel submits that
the respondent has filed the suit only in respect of
the property that he purchased from the
appellant's father on 09.08.2004. The appellant,
despite being a consenting witness to the sale
deed, interfered with respondent's possession. He
also submits that the appellant's wife, namely,
Smt. Sushma filed a suit, O.S.No.5596/2020
against the respondent and his sons and in that
suit, she had sought an order of injunction. That
application was dismissed with a clear finding that
she was not in possession of the property. After
the application in that suit was dismissed, the
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appellant interfered with the respondent's
possession and this was the reason for filing the
suit against the appellant. Therefore it is his
argument that there are no grounds to interfere
with the discretionary order passed by the Trial
Court.
6. If the impugned order is read, as has
been argued by the appellant's counsel, the Trial
Court has not assessed the case put forwarded by
the plaintiff and the defendant. It has just come
to conclusion that the documents produced by the
plaintiff would make out a prima-facie case.
Though the Trial Court has not applied its mind, if
the documents produced by either side are
considered, what appears is that the appellant was
a consenting witness to the sale deed dated
09.08.2004 executed by the power of attorney
holder of his father. This sale deed is not in
dispute. This sale deed clearly shows that site
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No.37 measuring east to west 40 feet and north to
south 15 feet was sold to the respondent. Now
the appellant's case is that the respondent has
encroached upon the land belonging to him. If
according to appellant there is any encroachment
by the respondent, he has to recover the
encroached portion by filing a suit for possession.
He simply complains of interference by the
respondent on his property. It is pertinent to note
that the appellant's wife Smt. Sushma had filed a
suit, O.S.No.5596/2020 against the respondent
and his sons and in the said suit the application
filed by her for temporary injunction was
dismissed with a clear finding that she was not in
possession.
7. In this view, it may be stated that the
respondent/plaintiff has made out his possession
over the suit property on the date of the suit.
Prima-facie case is made out. Having sold the
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property to the respondent, if the appellant still
interfered with respondent's possession, certainly
balance of convenience lies in favour of the
respondent. If injunction is not granted,
respondent's interest will suffer. Though there is
no detailed discussion in the impugned order, the
discretion for grant of temporary injunction cannot
be interfered with. There are no grounds to admit
this appeal. Therefore it is dismissed.
8. Any observation made in this judgment,
shall not influence the Trial Court while deciding
the suit on merits.
IA No.2/2022 does not survive for
consideration. It stands disposed of accordingly.
Sd/-
JUDGE
Kmv/-
