Karnataka High Court
Smt K Magileswari vs The Town Munciopal Council on 6 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:44182
WP No. 17098 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 17098 OF 2023 (GM-CPC)
BETWEEN:
SMT. K MAGILESWARI
W/O JEVARAJ,
AGED ABOUT 50 YEARS,
R/A NO.3398/1, SAIT COMPOUND,
BANGARPET TOWN AND TALUK,
KOLAR DISTRICT-563114.
...PETITIONER
(BY SRI. UDHAYA KUMAR G., ADV.)
AND:
THE TOWN MUNCIOPAL COUNCIL
BANGARPET TOWN,
Digitally BANGARPET-563114,
signed by A K REP. BY ITS CHIEF OFFICER.
CHANDRIKA ...RESPONDENT
Location: (BY SRI. VIJAY A M., ADV.)
HIGH
COURT OF THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
KARNATAKA THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
CONNECTED RECORDS AND QUASH ANNEXURE-A THE ORDER
DATED 18.07.2023 IN M.A.NO.13/2023 PASSED BY SENIOR
CIVIL JUDGE AND JMFC, KGF ITINERARY AT BANGARPET AND
CONFIRM THE ORDER OF THE 17.2.2023 PASSED ON IA NO.1
IN O.S.NO.378/2022 PASSED BY THE ADDL. CIVIL JUDGE AND
JMFC AT BANGARPET AS PER ANNEXURE-B.
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NC: 2023:KHC:44182
WP No. 17098 of 2023
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Though the writ petition is listed for hearing
I.A.No.1/2023 for vacating interim order of stay, with the
consent of the learned counsel for the parties, the matter
is taken up for final disposal.
2. The petitioner/plaintiff is before this Court, aggrieved
by judgment dated 18.07.2023 in M.A.No.13/2023 on the
file of the Additional Senior Civil Judge and JMFC, KGF
allowing appeal and setting aside order passed by the trial
Court on I.A.No.1 dated 17.02.2023 in O.S.No.378/2022
on the file of the Additional Civil Judge and JMFC,
Bangarpet.
3. Heard learned counsel Sri.Udhaya Kumar G for
petitioner/plaintiff and learned counsel Sri.Vijay A.M., for
respondent/defendant-Town Municipal Council, Bangarpet
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(for short "Municipality"). Perused the writ petition
papers.
4. Learned counsel for the petitioner/plaintiff would
submit that the suit of the petitioner/plaintiff is one for
permanent injunction in respect of the suit schedule
property i.e., vacant site and RCC Roofed house property
totally measuring East to West 20 feet and North to South
40 feet situated at Sait Compound, Bangarpet Town.
Learned counsel for the petitioner would submit that as
the respondent/Municipality tried to disturb the
petitioner/plaintiff's possession for construction of RO
Water Plant, it had become necessary for the petitioner to
file the present suit for injunction. Learned counsel would
submit that in terms of the sale deed that is placed on
record at Annexure-H, the petitioner is in possession of the
property measuring 20 x 40 feet. On the southern side of
petition schedule property, initially the Municipality had
constructed municipal toilet which was subsequently
demolished. On demolition, the respondent-Municipality
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intends to install RO Water plant. But, it is the allegation
of the petitioner/plaintiff that while constructing RO Water
Plant, the respondent-Municipality is trying to encroach
petitioner's land. The trial Court on the material made
available was of the opinion that the plaintiff has made out
prima-facie case and injuncted the Municipality from
installing RO Water Plant in the suit schedule property in
any manner. Aggrieved by the same, the respondent-
Municipality preferred M.A.No.13/2023. The Appellate
Court, on the ground that the respondent/Municipality
could not be injuncted from constructing RO Water plant,
set aside the order passed by the trial Court.
5. Learned counsel for the petitioner would contend that
the Appellate Court failed to appreciate the fact that the
petitioner/plaintiff is seeking protection to his property
which he is claiming under sale deed dated 04.05.2012.
Learned counsel further makes it clear that other than the
suit schedule property which is in terms of sale deed, the
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petitioner/plaintiff is not claiming any portion of property
of respondent/Municipality.
6. On the other hand, learned counsel Sri.Vijay for
respondent/Municipality would submit that the trial Court
could not have injuncted the Municipality from installing
RO Water Plant which would be opposed to public interest.
He would submit that by virtue of interim order granted by
the trial Court, the Municipality is not in a position to
install RO Water Plant which is a need for the public.
Learned counsel would submit that in terms of the sale
deed of petitioner's Vendor's Vendor, the boundary shown
on the southern side is municipal toilet and not the
Railway line as depicted in the sale deed of the petitioner.
Thus, he justifies the judgment of the Appellate Court.
7. Having heard the learned counsel for the parties and
on perusal of the writ petition papers, I am of the view
that the parties shall maintain status-quo in respect of the
suit schedule property.
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8. Moreover, prayer of the petitioner/plaintiff in
I.A.No.1 filed under Order XXXIX Rules 1 and 2 of CPC
before the trial Court is to restrain the respondent/
Municipality from installing any Water Tank in the schedule
property. The trial Court allowed I.A.No.1, restraining
defendant from installing Water Tank in the suit schedule
property. The trial Court has not injuncted the
respondent/Municipality from installing ROWater Plant, if
the land of the Municipality is available.
9. The petitioner/plaintiff is claiming suit schedule
property under sale deed dated 04.05.2012, as described
in the schedule to the sale deed. The petitioner, during
the pendency of the suit is entitled for protection of his
property. The petitioner shall not claim more than what
he is entitled to under the sale deed dated 04.05.2012.
The petitioner/plaintiff also admits that on the southern
side of the suit schedule property, earlier there was
municipal toilet which was demolished subsequently. If
that is so, if the Municipal land is available on the southern
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side of petitioner/plaintiff's land, it is open for the
respondent/Municipality to establish RO Water Plant in its
land, without disturbing the petitioner's possession over
the suit schedule property.
With the above, the writ petition stands disposed of.
Sd/-
JUDGE
MPK
CT:bms
