Smt Srividya vs K Shivakumar
2023 Latest Caselaw 747 Kant

                                         -1-
                                                 MFA No. 8538 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. 8538 OF 2022 (CPC)
              BETWEEN:

              1.    SMT SRIVIDYA
                    W/O SATISH R
                    AGED 43 YEARS
                    R/AT NO.10/1
                    26TH MAIN, BEHIND CORPORATION BANK
                    HSR LAYOUT, 1ST SECTOR
                    BENGALURU - 560102

              2.    YASHAS
Digitally           S/O SATISH R
signed by C         AGED 18 YEARS
MALATHI             R/AT NO.10/1
                    26TH MAIN, BEHIND CORPORATION BANK
Location:
                    HSR LAYOUT, 1ST SECTOR
High Court          BENGALURU - 560102
of
Karnataka                                                ...APPELLANTS

              (BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)

              AND:

              1.    K SHIVAKUMAR
                    S/O SRI KODANDARAM
                    AGED 40 YEARS
                    R/AT 171/A, 28TH MAIN,
                    6TH CROSS, HSR LAYOUT,
                              -2-
                                        MFA No. 8538 of 2022




    BENGALURU - 560102

                                               ...RESPONDENT

(BY SRI.   M.N.UMASHANKAR, ADVOCATE FOR RESPONDENT/
CAVEATOR)

      MFA FILED U/O.43 RULE 1(r) R/W SEC.151 OF CPC,
AGAINST THE ORDER DT.25.11.2022 PASSED ON IA NO.1 IN
O.S.NO.5405/2022 ON THE FILE OF THE VI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH-11),
ALLOWING IA NO.1 FILED U/O.39 RULES 1 AND 2 OF CPC,
1908.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                         JUDGMENT

This appeal is filed by the defendant Nos. 1 and 2

under Order 43 rule 1(r) of the Civil Procedure Code

challenging the order dated 25.11.2022 passed by the VI

Addl. City Civil and Sessions Judge in O.S.No.5405/2022,

whereby IANo.1 filed under Order 39 Rules 1 and 2 of Civil

Procedure Code is allowed.

2. For the sake of convenience, the parties are

referred to as per their rankings before the trial court.

3. The plaintiff has filed a suit for bare injunction

against the defendants in respect of the suit schedule

MFA No. 8538 of 2022

property before the VI Additional City Civil and Sessions

Judge, Bangalore in O.S.No.405/2022. Along with the

plaint, he has filed IA No.1 under Order 39 Rules 1 and 2

of Civil Procedure Code. After service of summons, the

defendants have appeared through counsel and filed a

written statement and also filed objections to IA No.1.

After hearing the parties and considering the materials

available on record, IA No.1 filed under Order 39 Rules 1

and 2 is allowed and the defendants are restrained from

interfering with the peaceful possession or trespassing or

dispossessing the plaintiff from the suit schedule property

till the dismissal of the suit. Being aggrieved by the same,

the defendants have filed this appeal.

4. The learned counsel appearing for the defendants

has contended that they are the owners of the property

measuring 21 acres 23 guntas, out of which, 21 acres 3

guntas have been acquired by the BDA for the formation

of layout and 20 guntas have been retained by the

MFA No. 8538 of 2022

defendants and they are in possession of the property and

the plaintiff has no right or title over the property and they

have filed a suit for injunction against the defendants. The

trial court, without considering the contention of the

defendants has granted an injunction.

5. Per contra, learned counsel appearing for the

plaintiff has contended that the entire property of 21 acres

23 guntas has been acquired by the BDA for the formation

of the layout. In that, the BDA has allotted a part of the

land in favour of the allottees. The plaintiff has purchased

the site from the original allottee and he is in possession

of the suit schedule property.

6. He further contended that the defendants have

filed a suit as well as the writ petition in respect of very

property against the BDA, but they were unsuccessful.

He contended that in the written statement defendants

have admitted the possession of the plaintiff. Considering

MFA No. 8538 of 2022

all these aspects of the matter, the trial court has rightly

granted an injunction.

7. Heard the learned counsel appearing for the

parties and perused the impugned order.

8. The dispute is only in respect of 20 guntas. The

suit for permanent injunction filed by the plaintiff is

pending before the trial court. The only grievance of the

plaintiff is that he is constructing a building in the suit

schedule property and the defendants are trying to

interfere with his possession.

9. Under these circumstances, in the interest of

justice, the defendants are directed not to interfere into

the suit schedule property and not to obstruct the plaintiff

in construction of the building in the suit schedule

property, till the disposal of the suit.

It is made clear that if the plaintiff is unsuccessful in

the suit, he cannot claim any equity.

MFA No. 8538 of 2022

With the above observations, the appeal stands

disposed of.

In view of disposal of the main matter, all pending

applications do not survive for consideration.

Sd/-

JUDGE

CM