Karnataka High Court

Sri K Manjunath vs Smt B K Pushpa on 4 April, 2024

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                                                      NC: 2024:KHC:13880
                                                    MFA No. 8360 of 2023




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 4TH DAY OF APRIL, 2024

                                        BEFORE
                          THE HON'BLE MR JUSTICE R. NATARAJ
               MISCELLANEOUS FIRST APPEAL NO. 8360 OF 2023 (CPC)
               BETWEEN:

               1.    SRI K MANJUNATH
                     S/O LATE KOTTAPPA,
                     AGED ABOUT 58 YEARS,
                     RESIDING ATNO. 8/A, 1ST MAIN ROAD,
                     NEAR 108 B BUSSTOP,
                     GANGANAGAR,
                     BANGALORE 560032.
                                                            ...APPELLANT
               (BY SRI. NARAYANA SWAMY V K.,ADVOCATE)

               AND:

               1.    SMT B K PUSHPA
Digitally            W/O SRI H K MUNIRAJU,
signed by BS         AGED ABOUT 52 YEARS,
RAVIKUMAR
Location:
                     NO. 98, 8TH CROSS,
HIGH                 PILLAPPA BLOCK, GANGANAGAR,
COURT OF
KARNATAKA            BANGALORE 560024.
                                                          ...RESPONDENT
               (BY SRI. B.KRISHNA GOWDA, ADVOCATE)

                    MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE
               ORDER    DT.25.11.2023   PASSED     ON   IA   NO.2   IN
               O.S.NO.2953/2023 ON THE FILE OF THE XLI ADDITIONAL CITY
               CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH-42),
               ALLOWING IA NO.2 FILED U/O.39 RULES 1 AND 2 R/W
               SEC.151 OF CPC, 1908.
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                                             NC: 2024:KHC:13880
                                         MFA No. 8360 of 2023




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

                           JUDGMENT

The defendant in O.S.No.2953/2023 on the file of XLI

Additional City Civil and Sessions Judge, Bengaluru City

has filed this appeal challenging the order dated

25.11.2023, by which, an application filed by the plaintiff

under Order 39 Rules 1 and 2 of CPC was allowed and the

defendant, his agents, power of attorney holders, office

bearers and any person claiming on his behalf were

restrained, from interfering with the peaceful possession of

the plaintiff in the suit schedule property, pending disposal

of the suit.

2. For the sake of convenience, parties are referred

to as per their ranking before the trial court.

3. The suit in O.S.No.2953/2003 was filed for

perpetual injunction in respect of a property bearing

No.11, Old No.13, situated at Harijana Colony, 4th Cross,

Ganganagar, Bangalore, measuring East to West 25 ft. and

North to South 20 ft. The plaintiff claimed that she was

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the owner of the suit property having purchased it in

terms of two sale deeds dated 22.11.2004 from Sri

G.L.Gopinath. She claimed that the defendant was her

neighbour. She claimed that she was putting up

construction in the first floor by laying pillars from the

ground. The defendant already went to the suit property

and claimed that he was entitled to 5 feet in the plaintiff's

property and demanded that the plaintiff should not put up

any construction. She also claimed that the defendant had

filed a suit in O.S.No.25312/2023 against the plaintiff,

where an application filed by the defendant for interim

injunction was rejected and in an appeal preferred before

this Court in MFA No.1681/2023, the plaintiff had

undertaken that she would not put up construction in the

vacant space abutting the house of the defendant. The

plaintiff contended that the construction put up was within

the property belonging to the plaintiff and that there was

no space between the plaintiff's and the defendant's

properties. The defendant contested the suit and claimed

that he had vacant space of 5 feet on the western side of

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plaintiff's property. He admitted that he had filed a suit in

O.S.No.25312/2023 and an application filed therein for

interim injunction was rejected. He admitted that MFA

1681/2023 was filed before this Court. He contended that

in MFA 1681/2023, the plaintiff had undertaken not to put

up any construction in the vacant space but the plaintiff

had violated it and consequently contempt proceedings are

initiated. He claimed that the relief of mandatory

injunction to remove the construction so put up was

claimed in O.S.25312/2023. The trial court, after

considering the case of the plaintiff and the defendant held

that the plaintiff had made out a prima facie case for grant

of injunction in respect of the suit schedule property which

she lawfully purchased in terms of the sale deed referred

above. Being aggrieved by the said order, the defendant

is before this Court in this appeal.

4. Learned counsel for the appellant/defendant

contended that in MFA No.1681/2023 the plaintiff had

undertaken that she would not put up any construction

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and based on such undertaking, the said appeal was

disposed of. He therefore, contends that notwithstanding

the undertaking given before this Court, the defendant has

undertaken construction.

5. Learned counsel for the respondent/plaintiff, on

the other hand, contended that the construction put up

was within the property of the plaintiff and that there was

no encroachment into the property of the defendant or

there was no vacant space set apart towards the property

of the defendant. In order to verify whether any passage

or vacant space existed between the properties of the

plaintiff and the defendant, a Commissioner was

appointed, who has inspected the property and submitted

a report, which indicates the following:

"In terms of directions dated 03.01.2024, passed in MFA 8360/2023, I have been appointed as Court Commissioner for inspecting the property of both parties, i.e., appellant & respondent and to file a report to the Court with respect to existence of building in the property of appellant herein and

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also the existence of the building in the property of respondent as well as area taken up for construction by the respective parties. Accordingly, as per the directions issued to me as Court Commissioner after receipt of commissioner warrant and same also intimated through court Commissioner to their respective Counsels, i.e., Shri K.Manjunath & K.Pushpalatha, advocates representing appellants, Shri Krishna Gowda, advocate representing respondent in captioned matter, to inform to its clients with respect to the date scheduled for conducting the local inspection on 13.01.2024 at 11.00 a.m. Accordingly I have visited the spot and received the memo of instructions from both the counsels and also copies of sale deed and copy of plaint, thereafter conducted the local inspection as per intimated time in terms of directions issued to me and started demarcating/measuring the outer boundary line of the property towards western side attached to Site No.11, Old No.13 & eastern side of Site No.9A, old No.17/12-9 belongs to respondent thereafter inner side of the property towards southern side of Site No.11, Old No.13 & Site No.9A, Old No.17/12-9 on the terrace which belongs to respondent. Further, after taking note of the measurements of respondent, I have started measuring the outer boundary line of the Site No.17/2, New No.7,

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belongs to appellants towards Southern side on the terrace of Site No.17/2, New No.7, belongs to appellants ended with Northern side as indicated in the sale deed in the presence of either parties after taking note of the measurements of appellants and task to be conducted as per memo of instructions given by both counsel, mahazar was drawn in the presence of both the parties and report is attached hereunder:

The details of suit schedule property belongs to appellants and respondents as per sale deed and copy of plaint involved are as below and the details of physical possession/constructed and demarcated report along with sketch, sale deeds of appellant & respondent and memo of instructions submitted by both counsels as on date of local inspection along with photographs is attached along with."

6. The learned counsel for the plaintiff and the

defendant do not dispute the correctness of the

measurement recorded by the Commissioner appointed by

this Court. Therefore, the report of the Commissioner is

treated as part of the record of this Court. A perusal of

the report of the Commissioner discloses that the plaintiff

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has put up construction within the property belonging to

her and the defendant too has constructed within the

property belonging to him. Therefore, there is no reason

as to why the case of the plaintiff should not be believed

at this stage that the construction put up by her is within