Sri K V Krishnaji Rao vs Sri V Thukarama Rao
2023 Latest Caselaw 3597 Kant

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                                                      NC: 2023:KHC:21666
                                                        MFA No. 3510 of 2022




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 22ND DAY OF JUNE, 2023

                                             BEFORE

                               THE HON'BLE MR JUSTICE H.P.SANDESH

                      MISCELLANEOUS FIRST APPEAL NO.3510 OF 2022 (CPC)

                   BETWEEN:

                   SRI K.V. KRISHNAJI RAO,
                   S/O LATE SRI VENKOBARAO,
                   AGED ABOUT 58 YEARS,
                   RESIDING AT NO.1112, 55,
                   10TH MAIN, 6TH CROSS,
                   NEAR RAGHAVENDRASWAMY TEMPLE,
                   PRAKASH NAGAR, BENGALURU-21.
                                                                   ...APPELLANT

                                (BY SRI G.A. SRINIVAS, ADVOCATE)

                   AND:

                   SRI V. THUKARAMA RAO,
                   S/O LATE SRI VENKOBA RAO,
Digitally signed
by SHARANYA T      AGED ABOUT 66 YEARS,
Location: HIGH     RESIDING AT NO.82,
COURT OF
KARNATAKA
                   10TH MAIN, J.C. NAGAR,
                   MAHALAKSHMIPURAM,
                   BENGALURU 560086.
                                                               ...RESPONDENT
                                 (BY SRI S. NAGARAJA, ADVOCATE)

                        THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ
                   WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
                   11.04.2022 PASSED ON I.A.NO.1 IN OS.NO.4820/2021 ON THE
                   FILE OF THE X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
                   BENGALURU CCH-26, REJECTING THE I.A.NO.I FILED UNDER
                   ORDER 39 RULE 1 AND 2 OF CPC.

                        THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                     NC: 2023:KHC:21666
                                           MFA No. 3510 of 2022




                       JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for the respondent.

2. This appeal is filed challenging the order dated

11.04.2022 passed on I.A.No.1 in O.S.No.4820/2021, on

the file of the X Additional City Civil and Sessions Judge,

Bangalore (CCH-25), rejecting the application filed under

Order 39 Rules 1 and 2 of CPC. The plaintiff in the said

application prayed the Court to grant an order of injunction

in respect of 'D' schedule property and in the plaint

described the total property as 'A' schedule property and 'B'

schedule property belongs to the defendant and 'C'

schedule property belongs to the plaintiff. He claims that

there is a common passage of 5 feet and common well and

common staircase in respect of 'B' schedule property and

'C' schedule property and the defendant is interfering and

causing obstruction in usage of common staircase and

hence prayed the Court to restrain the defendant from

demolishing the common staircase by removing the

NC: 2023:KHC:21666 MFA No. 3510 of 2022

sanitary lane in 'D' schedule property pending disposal of

the suit.

3. The defendant appeared and filed the written

statement contending that earlier there was a Will and

subsequently the mother executed the gift deed and the

plaintiff is also a beneficiary and party to the gift deed and

having accepted the gift deed executed in the year 2013,

he kept quite till 2021 and approached the Court by making

false submission. It is particularly contended that in

schedule 'C' on the southern side in an ingenious method

he has shown 5 feet common passage, common well and

common staircase and the same is not in terms of the gift

deed executed in favour of the plaintiff and the defendant.

The learned counsel submits that the Trial Court having

considered the contention of both the parties, rightly comes

to the conclusion that the matter requires to be adjudicated

only after a detailed trial and at this stage of the

proceedings it cannot be said that the plaintiff has made

out any prima facie ground to seek suitable relief of

temporary injunction and rejected the same. The learned

NC: 2023:KHC:21666 MFA No. 3510 of 2022

counsel submits that the Trial Court considered both

balance of convenience and irreparable loss and hardship.

4. Having heard the learned counsel for the

appellant and the learned counsel for the respondent,

admittedly they are the brothers and the property belongs

to their mother and also no dispute with regard to the fact

that earlier Will was executed by the mother in the year

2002 and subsequently in 2013, separate gift deeds are

executed by the mother by canceling the earlier Will. It is

also not in dispute that both are parties to the gift deeds

and they are the beneficiaries and both of them have

accepted the gift deed. Now, the dispute is with regard to

using of staircase. In terms of the gift deed, 40 x 15 feet

each is gifted both to the plaintiff and the defendant and it

is also not in dispute that there is a common staircase, but

it is the claim of the plaintiff that the defendant is making

an attempt to damage the same. On the other hand, the

learned counsel for the defendant submits that though

there is a common staircase, they are entitled for only 2½

feet each equally in terms of the gift deed and the fact that

NC: 2023:KHC:21666 MFA No. 3510 of 2022

to climb the staircase, the same is common staircase to

both the plaintiff and the defendant. When such being the

apprehension of the plaintiff that the defendant is going to

demolish the staircase, the question of demolishing the

staircase does not arise.

5. It is the contention of the plaintiff that an

application is filed for appointment of Commissioner before

the Trial Court and the same is pending for consideration.

When the dispute is with regard to the usage of staircase

and if it is common staircase, the Commissioner can visit

the spot and draw the sketch in respect of the rights of

both the parties in terms of the gift deed executed by the

mother in favour of the plaintiff and the defendant and the

matter can be adjudicated by the Trial Court having

received the Commissioner report. When an application is

pending before the Court, the Trial Court is directed to

consider the application and the dispute between the

parties can be adjudicated only by appointing the Court

Commissioner. Hence, the Trial Court is directed to

consider the said application in accordance with law and get

NC: 2023:KHC:21666 MFA No. 3510 of 2022

the report from the Commissioner with regard to the rights

of the parties in terms of the gift deed executed by the

mother in favour of the plaintiff and the defendant. In the

meanwhile, the parties are directed to maintain status quo

till the Commissioner report is received. Thereafter, the

Trial Court has to take a decision in terms of the

Commissioner's report.

6. With the above observations, the appeal is

disposed of.

Sd/-

JUDGE

MD