Karnataka High Court
Sri M Hemanth Kumar vs Sri Rajesh on 11 January, 2023
Bench: H T Prasad
-1-
MFA No. 7173 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 7173 OF 2022 (CPC)
BETWEEN:
SRI M HEMANTH KUMAR
S/O LATE MASTHI GOWDA
@ B. CHIKKANNA
AGED ABOUT 49 YEARS
R/AT NO. 8/1,II MAIN
4TH CROSS, 07.07.2018
K.N. EXTENSION, YESHWANTHPUR
BANGALORE 560 022.
...APPELLANT
Digitally signed (BY SRI. AJITH A SHETTY., ADVOCATE)
by
DHANALAKSHMI AND:
MURTHY
Location: High
Court of SRI RAJESH
Karnataka S/O MADKERAPPA
AGED ABOUT 35 YEARS
C/O SRI. LAKSHMI SPECIALITY HOSPITAL
MAGADI MAIN RAOD
BANGLAORE 560 091
...RESPONDENT
(BY SRI. B RAMESH., ADVOCATE)
-2-
MFA No. 7173 of 2022
THIS MFA IS FILED UNDER ORDER .43 RULE 1(r)
R/W SECTION 151 OF CPC, AGAINST THE ORDER
DT.12.10.2022 PASSED ON IA NO.1 IN O.S.NO.761/2021
ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE,
BENGALURU, (CCH NO.28), DISMISSING IA NO.1 FILED
U/O.39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Order 43 Rule 1(r) of the CPC is
filed by the plaintiff in O.S.No.761/2021 before the XIV
Addl. City Civil Judge, Bangalore, challenging the order
dated 12.10.2022 passed on I.A.No.I filed under Order
39 Rules 1 and 2 read with Section 151 of CPC and
I.A.No.III filed under Order 39 Rule 4 read with Section
151 of CPC, whereby the Trial Court has dismissed
I.A.No.1 filed by the plaintiff and allowed I.A.No.III filed
by the defendant and interim order dated 16.2.2021 has
been vacated.
MFA No. 7173 of 2022
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The plaintiff filed the suit in O.S.No.761/2021
before the Trial Court seeking for relief of permanent
injunction restraining the defendant from lawful and
peaceful possession of the plaintiff's suit schedule
property. Along with the suit, the plaintiff had also filed
I.A.No.1 under Order 39 Rules 1 and 2 read with Section
151 of CPC seeking for grant of an order of temporary
injunction restraining the defendant from interfering
with the possession of the plaintiff's suit schedule
property. The Trial Court had granted exparte interim
order on 16.2.2021. After appearance of defendant, the
defendant filed I.A.No.III for vacating the exparte
interim order. After hearing the parties, the Trial Court
by order dated 12.10.2022 dismissed I.A.No.1 filed by
the plaintiff and allowed I.A.No.III filed by the defendant
MFA No. 7173 of 2022
and interim order dated 16.2.2021 was vacated. Being
aggrieved by the same, the plaintiff has filed this
appeal.
4. The learned counsel for the appellant-plaintiff
has contended that plaintiff's father Late
Sri.Masthigowda was the owner of land bearing
Sy.No.70/3B situated in Shreegandhadakaavulu Village,
Yeshwanthpur Hobli, Bangalore North measuring 5 acres
15 guntas. Out of which, he sold 2 acres 35 guntas of
land in favour of one Chandrashekar and remaining
extent of land was in his possession. After the death of
Mastigowda on 29.5.2004, the plaintiff is in possession
and enjoyment of the property. Since the defendant is
trying to interfere with his peaceful possession, the
plaintiff filed the suit seeking for relief of permanent
injunction.
MFA No. 7173 of 2022
5. The learned counsel for the respondent-
defendant has contended that there is no dispute that
Masthigowda had purchased 4 acres of land in
Sy.No.70/3B. Out of which, 2 acres 35 guntas has been
sold in favour of Chandrashekar under three separate
sale deeds. Remaining portion of the land in
Sy.No.70/3B i.e., 1 acre 7 guntas of land has been
acquired by the Government to establish a home for
destitutes. The plaintiff is not left with any land in the
said survey number and he is not in possession of any
land in the said survey number. Hence, the suit itself is
not maintainable. He further contended that the
defendant is not a necessary party and he has been
made as party only to get an order of injunction. The
Trial Court after hearing the parties and considering the
materials available on record has rightly dismissed
I.A.No.1 filed by the plaintiff and allowed I.A.No.III filed
by the defendant.
MFA No. 7173 of 2022
6. Heard the learned counsel for the parties and
perused the records.
7. The case of the defendant is that out of 5
acres 15 guntas of land, the plaintiff's father had sold 2
acres 35 guntas to one Chandrashekar by different sale
deeds and remaining portion has been acquired by the
Government to establish a home for destitutes and the
plaintiff is not left with any land in the said survey
number. The said fact has been denied by the plaintiff.
The further contention of the defendant is that the
person, who has purchased the land from the plaintiff's
father has not been made as party and even the persons
in whose favour the land has been granted have not
been made as parties. Moreover, the defendant is not a
necessary party. The plaintiff has made the defendant
as party only with an intention to obtain an injunction
MFA No. 7173 of 2022
order against the defendant and also make use of the
said order against other persons also.
In view of the above, the only relief that can be
granted at this stage is to direct both the parties to
maintain status quo in respect of the suit schedule
property, till the disposal of the suit.
8. Accordingly, the appeal is disposed of by
modifying the order dated 12.10.2022 passed by the
Trial Court. The plaintiff and defendant are directed to
maintain status-quo in respect of the suit schedule
property, till the disposal of the suit. It is made clear
that this order is applicable only to plaintiff and
defendant.
The Trial Court is directed to dispose of the suit as
expeditiously as possible, not later than 8 months from
the date of receipt of copy of this order.
Parties are directed to co-operate for the early
disposal of the suit.
MFA No. 7173 of 2022
In view of disposal of appeal, all pending I.As. are
dismissed accordingly.
Sd/-
JUDGE
DM
