Karnataka High Court
Sri H C Jayaram vs Sri Arputha Raj S on 28 February, 2024
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MFA No. 429 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 429 OF 2024 (CPC)
BETWEEN:
1. SRI. H.C. JAYARAM
S/O LATE CHIKKA PULLAPPA
AGED ABOUT 76 YEARS
2. SMT. RADHAMMA
W/O H.C. JAYARAM
AGED ABOUT 65 YEARS
(WHEREAS THE RESPONDENT NO.1
HAS WRONGLY SHOWN THE NAME OF
SMT. RADHAMMA AS SMT. SUMITHRA)
IN THE PLAINT AADHAR CARD IS PRODUCED
3. SMT. JAYASHREE
D/O H C JAYARAM
AGED ABOUT 35 YEARS
4. SRI. LOHITH
S/O H.C. JAYARAM
Digitally AGED ABOUT 35 YEARS
signed by BS
RAVIKUMAR
ALL ARE R/A NO.99,
Location:
HIGH RENUKA NILAYA, TCP LAYOUT,
COURT OF 2ND CROSS,
KARNATAKA HORAMAVU AGARA MAIN ROAD,
HORAMAVU POST
BENGALURU - 560043.
...APPELLANTS
(BY SRI. SURESH S. LOKRE, SENIOR ADVOCATE FOR
SRI. MOHAN S., ADVOCATE)
AND:
1. SRI. ARPUTHA RAJ S.,
S/O SELVA RAJ S.,
AGED ABOUT 51 YEARS
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MFA No. 429 of 2024
PRESENTLY RESIDING AT NO.292
NEW BEL CIRCLE,
BEL COLONY, JALAHALLI POST,
BENGALURU - 560013.
REPRESENTED BY HIS WIFE AND
GPA HOLDER - SMT. C.A. SUNITHA
2. THE COMMISSIONER
BBMP, N.R.SQUARE,
BENGALURU - 560 002
3. THE ASSISTANT EXECUTIVE ENGINEER
HORAMAVU SUB-DIVISION
WARD NO.25, BBMP
BENGALURU - 560043.
...RESPONDENTS
(BY SRI. N. GURUVA REDDY, ADVOCATE FOR CAVEATOR
RESPONDENT NO.1;
SRI. B.L.SANJEEV, ADVOCATE FOR RESPONDENT NOS.2 AND 3)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CODE
OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED
20.01.2024 PASSED ON I.A NOS.2 AND 8 IN O.S.NO.5773/2023 ON
THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY, (CCH-27), ALLOWING I.A NO.2 FILED BY
THE PLAINTIFF UNDER ORDER 39 RULES 1 AND 2 OF CPC,
DISMISSING I.A NO.8 FILED UNDER ORDER 39 RULE 4 OF CPC BY
THE DEFENDANT NOS.1 TO 4 WITH COST OF RS.2,500/- ON EACH
APPLICATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant Nos.1 to 4 in O.S. No.5773/2023 on
the file of XII Additional City Civil and Sessions Judge,
Bengaluru City, (henceforth referred to as 'the Trial
Court') have filed this appeal challenging the correctness
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of the order dated 20.01.2024 in O.S. No.5773/2023 in so
far as it relates to allowing I.A. No.2 filed by the plaintiff
and dismissing I.A. No.8 filed by the defendant Nos.1 to 4
with cost of Rs.2,500/-.
2. The suit in O.S. No.5773/2023 was filed for
perpetual injunction restraining the defendants from
interfering with the right of the plaintiff to use the suit 'B'
schedule property to access his suit 'A' schedule property.
3. The suit was contested by the defendant Nos.1
to 4 who claimed that the suit 'B' schedule property
claimed by the plaintiff belonged absolutely to them and
that the suit 'B' schedule property would not be of any use
to access the suit 'A' schedule property.
4. An application (I.A. No.1) filed by the plaintiff
for interim injunction to restrain the defendant Nos.1 to 4
from disturbing the usage of the suit 'B' schedule property
was allowed in favour of the plaintiff and the defendants
were restrained from interfering with the plaintiff passing
over the suit 'B' schedule property. Another interlocutory
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application (I.A. No.2) was filed by the plaintiff under
Order XXXIX Rules 1 and 2 of the Code of Civil Procedure,
1908 (for short, 'CPC') for a direction to the defendant
Nos.5 and 6 to remove the stone slabs fixed by defendant
Nos.1 to 4 on both ends of the suit 'B' schedule road, to
prevent the plaintiff from accessing the suit 'A' schedule
property which was allowed by the Trial Court. An interim
ex parte order of injunction was granted restraining
defendant Nos.1 to 4 from interfering with the plaintiff
passing over the suit 'B' schedule property. The defendant
Nos.1 to 4 entered appearance and filed I.A. No.8 under
Order XXXIX Rule 4 of CPC to vacate the ad interim order
of temporary injunction. The Trial Court allowed both the
applications (I.A Nos.1 and 2) filed by the plaintiff and
rejected the application (I.A No.8) filed by defendant
Nos.1 to 4.
5. Being aggrieved by the said order, the
defendants have filed this appeal.
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6. Learned senior counsel representing the
defendant Nos.1 to 4 / appellants submitted that the
averments of the plaint showed that a road was formed in
Sy. Nos.25/1, 25/2, 25/3A, 25/2B and 27 of Horamavu
village, K.R. Puram Hobli, Bengaluru East Taluk. He
contended that a road existed in other survey numbers
and not in Sy. No.27. He claims that the plaintiff and
others had formed a road in Sy. No.27 unauthorizedly and
without the consent of defendant Nos.1 to 4. Therefore,
he contends that the plaintiff was not entitled to claim that
he was using the suit 'B' schedule property to access the
suit 'A' schedule property.
7. Per contra, the learned counsel for the plaintiff /
respondent No.1 contended that the land in Sy. No.27 of
Horamavu village measuring 02 acres 35 guntas including
11 guntas of kharab belonged to Sri Chikkapullappa, the
father of defendant No.1 who sold 0-18 guntas in favour of
Sri K. Narayanaswamy under a sale deed dated
20.01.1961. The said extent of 0-18 guntas was
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thereafter partitioned between Sri K.Narayanaswamy and
his two brothers in terms of which 06 guntas fell to the
share of Sri K. Narayanaswamy and 12 guntas fell to the
share of his two brothers - Sri K. Ramaiah and Sri K.
Rajgopal. After the death of Sri K. Narayanaswamy and Sri
K. Ramaiah, their son/s, Sri N. Nagaraj and Sri R. Anand
respectively, were in possession of their portion of
property in Sy. No.27. He contended that the son of Sri K.
Rajagopal constructed a house in the portion of 06 guntas
and he was residing therein. He further contended that the
land in Sy. No.25/2 of Horamavu village measuring 21
guntas belonged to Sri K. Shamanna he having purchased
it from Sri Sampathraj in terms of a sale deed dated
22.09.1984. Sri Shamanna was the owner in possession
of the land measuring 10 guntas in Sy. No.25/3A (old Sy.
No.25/3) and land measuring 11 guntas including 01
gunta of kharab in Sy. No.25/3B (old Sy. No.25/3) having
purchased them from Sri Papanna in terms of a sale deed
dated 18.08.1966. After his death, his children and the
grandchildren executed a power of attorney dated
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04.03.2002 authorizing Sri K. Jagadish Ponraj and Sri G.
Chandrashekar Reddy to develop the aforesaid lands.
Accordingly, they formed residential sites in the aforesaid
land. When Sri K. Jagadish Ponraj and Sri G.
Chandrashekar Reddy were forming sites in Sy.
Nos.25/3A, 25/3B and 25/2, Sri N. Nagaraj, son of Sri
K.Narayanaswamy referred above and Sri R. Anand, son of
Sri K. Ramaiah requested them to form sites in 12 guntas
of land in Sy. No.27 of Horamavu village. Accordingly,
some 16 sites were formed in Sy. Nos.25/2, 25/3A and
25/3B and 27 of Horamavu.
8. The plaintiff contended that three sites along
with roads were formed in the land measuring 12 guntas
in Sy. No.27 of Horamavu village belonging to Sri N.
Nagaraj and Sri R. Anand. Subsequently, Sri R. Anand
sold the site No.2 formed in Sy. No.27 of Horamavu
village in favour of the plaintiff in terms of the sale deed
dated 12.08.2002 which is the suit 'A' schedule property.
Likewise, Sri R. Anand sold the said site No.1 in favour of
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Sri M. Venkatesh in terms of the sale deed dated
19.10.2012 and site No.3 in favour of Sri A. John in terms
of a sale deed dated 21.05.2003. The plaintiff purportedly
constructed a residential building comprising of ground
floor, first floor and second floor in the suit 'A' schedule
property in the year 2013. He contended that the suit 'B'
schedule property is the only access to the suit 'A'
schedule property and that the defendants are attempting
to close down the suit 'B' schedule property so as to cut
off access to the suit 'A' schedule property. He, therefore,
contended that the question whether the road was formed
in Sy. No.27 or not and the question whether such a road
could have been formed or not are all questions of fact
which are to be decided only after a trial and pending
disposal of the suit, it was imminent that the Trial Court
maintained the status quo of the suit properties and
therefore, the Trial Court felt it appropriate to restrain the
defendant Nos.1 to 4 from interfering with the right of the
plaintiff to use the suit 'B' schedule property to access the
suit 'A' schedule property. He further contended that in
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order to ascertain the existence of the suit 'B' schedule
property, the Trial Court appointed a Commissioner to visit
the suit 'B' schedule property and the Commissioner found
that the suit 'B' schedule property did exist and that there
was no other way to access the suit 'A' schedule property
other than by passing over the suit 'B' schedule property.
He submitted that the Commissioner also found that the
suit 'B' schedule property was closed down by the
defendant Nos.1 to 4 by stone slabs. He, therefore,
submits that the defendant Nos.1 to 4 are trying to
overreach the process of the Court by taking law into their
hands by closing off the access to the suit 'A' schedule
property. Thus, he prays that the interim mandatory
injunction granted by the Trial Court be continued till the
disposal of the suit.
9. I have considered the submissions made by the
learned counsel for defendant Nos.1 to 4 / appellants and
the learned counsel for the plaintiff / respondent No.1.
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10. The plaint averments disclose that the suit 'A'
schedule property was bound on the east by a 25 feet
road. The suit 'B' schedule property is nothing but that 25
feet road to access the suit 'A' schedule property. The sale
deed dated 12.08.2002 under which the plaintiff
purchased the suit 'A' schedule property indicates that
access to it was from the eastern 25 feet road. Defendant
No.1 is the son of Sri Chikkapullappa while defendant No.2
is his daughter-in-law while defendant Nos.3 and 4 are his
grandchildren. Sri Chikkapullappa had sold 18 guntas of
land in Sy. No.27 of Horamavu village in favour of Sri K.
Narayanaswamy under a sale deed dated 20.01.1961.
Subsequently, the said 18 guntas of land was divided
between Sri K. Narayanaswamy, Sri K. Ramaiah and Sri K.
Rajgopal. The plaintiff claims that the suit 'A' schedule
property was sold to him by Sri R.Anand, who is the son of
Sri K. Ramaiah in terms of the sale deed dated
12.08.2002. Therefore, Sri Chikkapullappa did not have
any right, title or interest in respect of 18 guntas of land in
Sy. No.27 of Horamavu village. It is not the case of the
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defendant Nos.1 to 4 that the site sold by Sri R. Anand,
son of Sri K. Ramaiah in favour of the plaintiff lay outside
the 18 guntas of land that was sold. Therefore, prima
facie it is evident that the suit 'B' schedule property was
formed in Sy. No.27 that was sold by Sri Chikkapullappa in
favour of Sri K.Narayanaswamy which subsequently was
partitioned amongst Sri K. Narayanaswamy, Sri K.
Ramaiah and Sri K.Rajgopal. The report of the Court
Commissioner appointed by the Trial Court adds credence
to the aforesaid prima facie finding. Since an order of
interim injunction is granted as a step in aid to the final
relief, status quo as it existed as on the date of the suit
deserves to be maintained.
11. Now coming to the question whether the Trial
Court was justified in directing defendant Nos.5 and 6 to
remove the obstructions caused by defendant Nos.1 to 4,
as the plaintiff has proved a prima facie case and in view
of the report of the Court Commissioner that the
defendant Nos.1 to 4 have closed the suit 'B' schedule
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property by laying stone slabs on both ends, it was indeed
an act to harass the plaintiff and browbeat him and the
Trial Court was therefore, justified in pre-empting such
dastardly act of the defendant Nos.1 to 4, by directing
defendant Nos.5 and 6 to remove the obstruction. Further
the photographs enclosed to the report of the
Commissioner shows that some plantain saplings are
planted after scrapping of the asphalt laid on the suit 'B'
schedule property. It therefore appears that the
defendant Nos.1 to 4 have attempted to change the nature
of the suit 'B' schedule property and thus deprive the
usage of the road to people such as the plaintiff. This is
extremely uncivilized and speaks of the brutish behaviour
of the defendant Nos.1 to 4. In that view of the matter,
the order passed by the Trial Court in directing the
defendant Nos.5 and 6 to remove the obstruction laid on
either side of the suit 'B' schedule property is justified and
warrants no interference. The plaintiff is at liberty to take
steps to compel the defendant Nos.1 to 4 to re-asphalt the
suit 'B' schedule property at their cost, and if a request is
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made, the Trial Court, shall pass suitable orders at the
time of disposing the suit.
12. The learned senior counsel for the defendant
Nos.1 to 4/appellants submitted that the defendant Nos.1
to 4 would remove the obstruction laid over the suit 'B'
schedule property. However, the learned counsel for the
plaintiff/respondent No.1 submitted that stone slabs are
already removed. Be that as it may, a week's time is
granted to defendant Nos.1 to 4/appellants to remove the
obstruction over the suit 'B' schedule property, failing
which defendant Nos.5 and 6 shall forthwith remove the
obstruction and make it suitable for use by the residents.
Any expense incurred in this regard shall be recovered
from defendant Nos.1 to 4.
13. Therefore, the Trial Court rightly granted an
order of injunction in favour of the plaintiff and against the
defendant Nos.1 to 4 restraining them from interfering
with the usage of the suit 'B' schedule property to access
the suit 'A' schedule property.
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14. Hence, this appeal lacks merit and same is
dismissed. Any observations made by this Court in the
course of dismissal of this appeal are only for the limited
purpose of disposing off this appeal and shall not influence
the Trial Court in any manner while disposing off the suit
in O.S. No.5773/2023. All the contentions are left open
for the parties to establish the same in the trial before the
Trial Court.
15. In view of disposal of this appeal, I.A.
No.1/2024 for stay does not survive for consideration and
the same stands disposed off.
Sd/-
JUDGE
SMA
