Karnataka High Court
Miss Thara Sophia N vs Smt Padma Jain on 26 June, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:22088
MFA No. 6936 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6936 OF 2018 (CPC)
BETWEEN:
1. MISS. THARA SOPHIA N.,
DAUGHTER OF MR. J.L. NATHAN,
AGED ABOUT 41 YEARS
RESIDING AT: NO.24/1,
RAJAPPA BLOCK, J.C.NAGAR,
BENGALURU-560 006.
...APPELLANT
(BY SRI JANARDHANA G., ADVOCATE)
AND:
1. SMT. PADMA JAIN
WIFE OF LATE D.K.JAIN,
AGED ABOUT 52 YEARS
PRESENTLY RESIDING
Digitally signed
by SHARANYA T AT NO.12, 1ST CROSS,
Location: HIGH RAJANNA LAYOUT,
COURT OF NEAR NEW SHILPA BAKERY,
KARNATAKA
HORAMAVU AGRAHARA,
BENGALURU-560 043.
...RESPONDENT
(VIDE ORDER DATED 12.06.2023,
SERVICE OF NOTICE TO RESPONDENT
IS HELD SUFFICIENT)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT. 28.07.2018 PASSED ON I.A.NO.1 IN
O.S.NO.3848/2017 ON THE FILE OF THE LXVII ADDITIONAL
CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY (CCH
-2-
NC: 2023:KHC:22088
MFA No. 6936 of 2018
NO.68), 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 matter is listed for admission. I have heard the
learned counsel for the appellant and inspite of service of notice
on the respondent, the respondent neither appeared before the
Court nor represented through counsel.
2. This appeal is filed challenging the order dated
28.07.2018 passed on I.A.No.1 in O.S.No.3848/2017 on the file
of the LXVII Additional City Civil and Sessions Judge, Bengaluru
City (CCH No.68), dismissing I.A.No.1 filed under Order 39,
Rule 1 and 2 of C.P.C.
3. The appellant-plaintiff has filed the suit seeking the
relief of bare injunction in respect of site No.42, carved out of
Sy.No.26 of Geddalahalli Village, K.R. Pura Hobli, Bengaluru
South Taluk measuring East to West-40 feet, North to South-30
feet bounded on the East by private property, West by road,
North by Site No.43 and South by Site No.41. The plaintiff
inter-alia sought for the relief of temporary injunction
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MFA No. 6936 of 2018
restraining the defendant from interfering with peaceful
possession and enjoyment of the suit schedule property.
4. The defendant, who appeared before the Court
contend that the defendant is in possession of the suit schedule
property bearing site No.22, Khatha No.62 of Geddalahalli
Village having purchased the same in the year 1997 and there
is misidentification of the property which is claimed by the
plaintiff. Hence, the plaintiff is not entitled for any relief.
5. The Trial Court, having considered the grounds
urged in the application and also considering the contention of
the defendant, comes to the conclusion that the plaintiff has
not made out any prima facie case since, there is a dispute with
regard to the identity of the property which is claimed by both
the parties. Having considered the material on record, the Trial
Court comes to the conclusion that the document relied upon
by the defendant is pertaining to the sale deed of the year
1997 and also relevant sketch, layout plan and the BBMP
property register extract and endorsement are all clearly
indexing the possession of the defendant as to site No.22. The
Trial Court also observed that the plaintiff is also claiming right
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MFA No. 6936 of 2018
based on the sketch and gift deed dated 11.05.2017. Hence,
the very case of the defendant is probable than the case of the
plaintiff and the Trial Court comes to the conclusion that the
relief has to be moulded only at the time of trial.
6. Learned counsel for the appellant-plaintiff would
contend that, when the Trial Court comes to the conclusion that
there is a dispute with regard to the identity of the property
which is claimed by both the parties, the Trial Court ought to
have directed the parties to maintain status-quo. The counsel
would vehemently contend that, when both the parties are
claiming right in respect of the very same property and though
the schedule property bearing boundaries is pertaining to site
No.22, the Trial Court comes to the conclusion that relief has to
be moulded only at the time of trial by examining the
witnesses. When such opinion is formed by the Trial Court, the
Trial Court ought to have directed the parties to maintain
status-quo since, both the sites are vacant sites.
7. Having heard the learned counsel for the appellant-
plaintiff and also on perusal of the material available on record,
the plaintiff in the suit filed for the relief of bare injunction,
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MFA No. 6936 of 2018
claimed the relief in respect of site No.42, Sy.No.26 situated at
Geddalahalli Village, K.R. Puram Hobli and both the sites situate
in Geddalahalli Village is not in dispute. The site No.42 is
carved out of Sy.No.26 and whether the site of the defendant is
also carved out of the very same survey number though the
defendant has mentioned the site number as 22 has to be
determined at the time of trial.
8. When the plaintiff and the defendant are claiming
right in respect of the very same property that they belong to
them and no doubt, the defendant claimed that she purchased
the property in the year 1997 and the plaintiff also claims right
based on the gift deed of the year 2017 and the plaintiff claim
that her father got the site in the compromise entered in the
year 1994 and when the site is carved out of the very same
survey number and there is a dispute with regard to the
identification of the property and the Court also comes to the
conclusion that the relief has to be moulded only after trial and
examination of witnesses, the Trial Court ought to have ordered
to maintain status-quo since, both the sites are vacant sites.
Hence, the order of the Trial Court requires to be modified and
accordingly, the same is modified directing both the plaintiff
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MFA No. 6936 of 2018
and the defendant to maintain status-quo, till the disposal of
the suit.
9. Accordingly, the appeal is disposed of. However,
the suit is filed in the year 2017 and hence, the Trial Court is
directed to dispose of the matter within one year from today
and both the parties and their respective counsels are directed
to assist the Trial Court in disposal of the case within the time
stipulated by this Court.
The Registry is directed to communicate this order to the
Trial Court, forthwith.
Sd/-
JUDGE
ST
