Smt Shilpa Ashok vs Sri Puttanna
2023 Latest Caselaw 3502 Kant

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                                                      NC: 2023:KHC:21253
                                                        MFA No. 6578 of 2022




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 20TH DAY OF JUNE, 2023

                                             BEFORE

                               THE HON'BLE MR JUSTICE H.P.SANDESH

                        MISCELLANEOUS FIRST APPEAL NO.6578 OF 2022 (CPC)

                   BETWEEN:

                   SMT. SHILPA ASHOK,
                   W/O SRI R. ASHOK KUMAR,
                   AGED ABOUT 36 YEARS,
                   R/AT NO.19, 2ND MAIN ROAD,
                   SANJEEVININAGARA, MUDLAPALYA,
                   BANGALORE-560072.
                                                                 ...APPELLANT

                               (BY SRI M. SHIVAPRAKASH, ADVOCATE)

                   AND:

                   1.   SRI PUTTANNA,
                        S/O PUTTANAIAH,
                        AGED ABOUT 56 YEARS.
Digitally signed
by SHARANYA T
Location: HIGH     2.   SMT. K.S. VIDYAMANI,
COURT OF
KARNATAKA               W/O PUTTANNA,
                        AGED ABOUT 51 YEARS.

                        BOTH ARE RESIDING AT NO.58,
                        5TH CROSS, III MAIN ROAD,
                        BASAVESHWARANAGARA LAYOUT,
                        VIJAYANAGARA, BENGALURU - 560040.
                                                              ...RESPONDENTS

                        (BY SRI KIRAN V. RON, ADVOCATE FOR C/R1 AND R2)

                        THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
                   AGAINST THE ORDER DATED 12.09.2022 PASSED ON I.A.NO.II
                   AND III IN O.S.NO.2795/2022 ON THE FILE OF THE XXXIII
                   ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
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                                          NC: 2023:KHC:21253
                                            MFA No. 6578 of 2022




COURT (NDPS), BENGALURU CITY (CCH 33), REJECTING
I.A.NO.II FILED UNDER ORDER XXXIX RULE 1 AND 2 OF CPC
AND ALLOWING THE I.A.NO.III FILED UNDER ORDER XXXIX
RULE 4 OF CPC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This matter is listed for admission today. Heard the

learned counsel for the appellant and the learned counsel

for the respondents.

2. This appeal is filed challenging the order dated

12.09.2022, passed on I.A.Nos.1, 2 and 3 in

O.S.No.2795/2022, on the file of the XXXIII Additional City

Civil and Sessions Judge and Special Court (NDPS)

Bengaluru City (CCH 33) rejecting I.A.Nos.1 and 2 and

allowing I.A.No.3.

3. The plaintiff before the Trial Court while seeking

the relief of temporary injunction in a suit filed for the relief

of permanent injunction prayed the Court to restrain

defendant Nos.1 and 2 from interfering with the peaceful

possession and enjoyment of the plaintiff over the suit

schedule property, particularly in respect of 'B' schedule

NC: 2023:KHC:21253 MFA No. 6578 of 2022

property. Having perused the plaint, 'A' schedule property

measures 40 feet x 56 feet and it is contended that the

same is acquired by sale deed dated 08.05.2019. The

plaintiff contended that land bearing Sy.No.17 and other

survey numbers situated in Nagarbhavi village was notified

for acquisition by the BDA in the year 1982 and the final

notification was passed in 1987 and released the sites in

favour of Vinayaka House Building Co-operative Society

dated 30.06.2015. Thereafter, the sale deed is executed,

particularly site bearing No.752/E allotted in favour of Smt.

Harshalatha having purchased the same from the vendor,

the plaintiff is in possession and the khatha has been

transferred in BBMP. The defendant No.1, who is presently

the member of the legislative council from Teachers

Constituency, on 26.03.2022 with their henchmen and

supporters, all of a sudden caused extensive damage on

the backside of the schedule property by removing the

shed constructed by the plaintiff measuring east to west 40

feet and north to south 9 feet and caused extensive

damage to the asbestos sheet roofing. The plaintiff

NC: 2023:KHC:21253 MFA No. 6578 of 2022

approached the defendants and made enquiry, but

defendant No.1 having political contact influenced the

jurisdictional police and revenue officers and all of a sudden

caused damage and dismantled the structure. In

paragraph No.10, it is stated that portion encroached by

defendant Nos.1 to 2 measures east to west 40 feet and

north to south 9 feet, more fully described in the schedule

'B' and the same is marked as CDEF. The plaintiff, interalia

sought for an order of injunction in respect of schedule 'B'

property restraining defendant Nos.1 and 2 or whomsoever

claiming under them from interfering with the plaintiff's

peaceful possession.

4. The same is resisted by the defendants by filing

the objection statement and they also filed the written

statement before the Trial Court. The Trial Court

considered the grounds urged in the application and also

the statement of objection. The Trial Court also considered

the very pleadings in the plaint that already there was a

encroachment to the extent of 40 feet x 9 feet and also

taken note of the principles laid down in the judgment of

NC: 2023:KHC:21253 MFA No. 6578 of 2022

the Supreme Court. The Trial Court taken note that when

the plaintiff is not in possession of the property and the suit

schedule property, particularly 'B' schedule property

averred by the plaintiff is already encroached by the

defendants, the question of granting interim order does not

arise and hence rejected the applications.

5. The learned counsel for the appellant would

contend that exparte order of temporary injunction was

granted, but the Trial Court fails to consider the plaint

averments and a specific positive statement is made that

the defendants being influential political person caused

extensive damage to the existing watchman shed and the

photographs which have been produced clearly discloses

dismantling the shed, which was in existence in the

property of the plaintiff and they have trespassed the

property of the plaintiff and the same has not been

considered by the Trial Court. The vital legal issue for

consideration by the Trial Court is that the property bearing

Sy.No.134 has already been acquired and taken possession

by BDA in the formation of Nagarbhavi III Stage, the

NC: 2023:KHC:21253 MFA No. 6578 of 2022

question of the defendants producing revenue sties does

not arise and the title which the defendants are claiming is

defective title. When such being the case, the Trial Court

ought to have granted the order of temporary injunction.

The learned counsel also brought to the notice of this Court

the documents placed before the Court and contend that

Janatha Co-operative Society was not having any title to

convey any title in favour of the defendants and inspite of

it, the Trial Court rejected the application. The learned

counsel submits that the matter is before the Supreme

Court with regard to denotification to the extent of 20

guntas of land and the Apex Court in the SLP mentioned

with regard to the acquisition of the property by the

Society through BDA and also denotification. The layout

has been formed and sites have been allotted to different

persons in respect of one of the beneficiary of the said

allotment and directed to maintain status quo in respect of

the aforesaid property.

6. The learned counsel for the respondents would

contend that the Trial Court has not committed any error in

NC: 2023:KHC:21253 MFA No. 6578 of 2022

rejecting the application since the very pleading of the

plaintiff is that already the defendants had encroached the

portion of the property to the extent of 40 feet x 9 feet and

when the plaintiff is not in possession of the suit schedule

property, the question of granting the order of temporary

injunction does not arise. The Trial Court having

considered the principles laid down in the judgment of the

Apex Court in the case of BALKRISHNA DATTATRAYA

GALANDE v. BALKRISHNA RAMBHAROSE GUPTA AND

ANOTHER reported in (2020) 19 SCC 119, in paragraph

No.12, held that under Section 38 of the Specific Relief Act,

an injunction restraining the defendant from disturbing

possession may not be granted in favour of the plaintiff,

unless he proves that he was in actual possession of the

suit schedule property on the date of filing of the suit and

hence the Trial Court has not committed any error. The

very pleading of the plaintiff is very clear that already a

portion of the suit schedule property is encroached.

7. Having heard the respective learned counsel,

admittedly the suit is filed for the relief of permanent

NC: 2023:KHC:21253 MFA No. 6578 of 2022

injunction. Having perused the plaint averments, it is

specifically mentioned that the defendants having used

their political power and with the support of their

henchman, encroached a portion of the site owned by the

plaintiff to the extent of 40 feet x 9 feet, which is described

as CDEF and also shown the same as schedule 'B' property.

When such pleading is made in the plaint itself that the

defendants have encroached the portion of the suit

schedule property and the relief sought is for temporary

injunction restraining them from interfering with the

plaintiff's peaceful possession and enjoyment over the 'B'

schedule property and when the specific pleading is made

that already encroached, the question of interference does

not arise. Hence, the Trial Court having considered the

material on record, rightly comes to the conclusion that

when the pleading itself is clear that there is an

encroachment to the extent of 40 feet x 9 feet, the

question of granting any temporary injunction restraining

the defendants from interfering with the possession does

not arise. The very schedule is clear that there was an

NC: 2023:KHC:21253 MFA No. 6578 of 2022

encroachment to the extent of 40 feet x 9 feet. Under the

circumstances, the Trial Court has not committed any error

in dismissing the application, wherein an interim order is

sought not to interfere with the possession. Hence, I do

not find any merit in the appeal to interfere with the

findings of the Trial Court and reverse the finding of the

Trial Court.

8. The learned counsel for the appellant submits

that the appellant has got the title, because she has got the

sale deed by allotment after the acquisition of the property.

The defendants are also claiming right based on the sale

deed, which have been executed in their favour and there is

dispute with regard to the title is concerned. When such

being the case, the appellant can seek the better relief

before the Trial Court by amending the plaint. No doubt,

the matter is before the Supreme Court and the Supreme

Court also directed the parties to maintain status quo with

regard to denotification made by the Government. The

material discloses that the defendants demolished the

portion of the site, which is the subject matter of the plaint

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NC: 2023:KHC:21253 MFA No. 6578 of 2022

and started the construction. When title itself is disputed,

both the parties are directed to maintain status quo till the

next date of hearing. In the meanwhile, the appellant has

to seek the appropriate relief by making necessary

application before the Trial Court forthwith and seek

necessary relief.

9. The learned counsel for the respondents submits

that the dispute is with regard to 40 feet x 9 feet and there

cannot be any blanket order of status quo in respect of

remaining area and he may be permitted to go ahead with

the construction except 40 feet x 9 feet, which is allegedly

encroached by the defendants. The learned counsel for the

plaintiff submits that already the Supreme Court granted an

order of status quo in respect of 20 guntas of land which

was denotified. This Court cannot examine the said issue

whether the same is in respect of remaining area of the

defendants, if any right is claimed and the same is not the

subject matter of issue involved between the parties. The

contention of the plaintiff is that 40 feet x 9 feet is

encroached and to that measurement, the parties can

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NC: 2023:KHC:21253 MFA No. 6578 of 2022

maintain status quo. If any application is filed for

amendment seeking better relief, that can be considered in

accordance with law. The order passed by this Court shall

not influence the Trial Court in deciding the issue involved

between the parties and considering other application, if

any, filed and the same has to be considered in accordance

with law.

10. In view of the discussions made above, I pass

the following:

ORDER The appeal is disposed off as observed above.

Sd/-

JUDGE

MD