Karnataka High Court
Mrs. Nasreen Afzal vs Mr. Elyas Ahmed on 9 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 7198 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 7198 OF 2022(CPC)
BETWEEN:
MRS. NASREEN AFZAL,
W/O SYED AFZAL,
AGED ABOUT 55 YEARS,
R/AT NO. 56, CHARLES CAMPBELL ROAD,
COX TOWN,
BANGALORE - 560 005.
...APPELLANT
(BY SRI. JOSEPH ANTHONY, ADVOCATE)
AND:
MR. ELYAS AHMED,
S/O ABDUL SATTAR,
AGED ABOUT 55 YEARS,
Digitally signed R/AT NO.18, NEW NO.11,
by SHARANYA T
Location: HIGH 3RD MAIN, 1ST CROSS,
COURT OF
KARNATAKA CAMALLY GARMENT,
KHB ROAD, KAVERI NAGAR,
R.T NAGAR POST,
BANGALORE - 560 032.
...RESPONDENT
(BY SRI. RASHEED KHAN, ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 28.09.2022 PASSED ON
I.A.NO.1 IN OS.NO. 592/2022 ON THE FILE OF THE IX
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MFA No. 7198 of 2022
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CCH-5, PARTLY ALLOWING THE I.A.NO.1 FILED UNDER ORDER
39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel appearing for appellant and also
the counsel appearing for respondent.
2. This appeal is filed being aggrieved by the order
passed on I.A.No.1 in O.S.No.592/2022, wherein prayer was
made to restrain defendant or his henchmen from interfering
with the plaintiff's peaceful possession and enjoyment of the
suit schedule property. The Trial Court partly allowed the
application and directed the defendant not to put up any
construction.
3. The factual matrix of the case of the plaintiff is that
while seeking relief of temporary injunction, it is contended that
he is the absolute owner and is in possession of the suit
schedule property bearing House List No.14, V.P. Khata
No.297/A/14, Byatarayanapura CMC Khatha No.1250, situated
at Hennur Village, Kasaba Hobli, Bangalore North Taluk,
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Bangalore measuring East-West on Northern side 60 feet, on
southern side 57 feet and North-south 40 feet, totally 2340
sq.ft, which she has purchased from its erstwhile owner, under
register sale deed dated 07.09.2006. It is also contended that
she is in peaceful possession and enjoyment of the suit
schedule property. The defendant who is utter stranger started
interfering with the suit schedule property. She resisted the
defendant's illegal act and the defendant did not care to stop
his interference and she informed the same to jurisdictional
police and the police did not care to take any action against
them. Hence, she filed a suit seeking permanent injunction and
sought for interlia temporary injunction to restrain the
defendants from interfering with the peaceful possession and
enjoyment of the property.
4. The defendant appeared and filed a written
statement contending that the plaintiff does not have any right
title over the property and defendant is in possession of suit
schedule property. The defendant by virtue of his ownership
acquired by him by way of registered sale deed dated
04.09.2021 measuring East-West 30 feet, North-South 40 feet
totally measuring about 1200 sq.ft. together with one square
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A.C. sheed roofed house constructed with cement and brick re-
oxide flooring with jungle wood doors and windows. The
defendant also contends that he got electric connection and in
order to substantiate fact of possession, occupation and
enjoyment of the property, which has been purchased by him
Sy.No.102/01 relied upon the electric connection and payment
receipts. The defendant claims that he is in possession of the
property. The allegations made in the plaint is that he entered
upon the suit schedule property belonging to the plaintiff and
removed an electricity connection is erroneous. The Trial Court
taking note of the pleadings of the both the parties formulated
the points whether there is prima-facie case, balance of
convenience and hardship to grant the relief. Taking into
material on record Trial Court comes to the conclusion that
having considered the documents and analyzing the
contentions made by both the parties, it is crystal clear that, at
present the plaintiff and defendants both are in possession of
the plaint schedule property and both have documents to show
that they are the owners. This Court cannot come to the
conclusion that who is the owner of the property because this
case is filed for seeking injunction and this Court has to
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evaluate the suit as per merits of the case depending upon
cogent evidence and proved documents. The Trial Court
considered the material on record, partly allowed the
application and directed the defendant not to construct or make
any structure in the suit schedule property from the date of this
order till the disposal of the suit. Being aggrieved by the order,
the present appeal is filed.
5. Learned counsel for the appellant vehemently
contends that the Trial Court committed an error in partly
allowing the same and not granting the relief of injunction as
sought for in the application and the Trial Court ought to have
granted relief in respect of the suit schedule property in terms
of the interlocutory application. The counsel vehemently
contends that when the Trial Court observed that both the
appellant and the respondent are in possession and also both of
them are claiming title in respect of the same property,
committed an error in partly allowing the application. Only
document that was produced by the respondent, in order to
show that he was in possession of the suit schedule property
was an Electricity Bill and a Electricity Connection in his name,
the manner in which the same was provided to the respondent
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has been challenged by the appellant herein through various
representation addressed to the BESCOM department. Hence,
the application needs to be allowed, granting relief and
restraining the defendant from interfering with the possession
of the suit schedule property as sought in the I.A.
6. Per contra, learned counsel for respondent
vehemently contends that the defendant has also produced the
sale deed and he has purchased the site carved out of
Sy.No.102/01 and also produced the document of electricity to
show that he has constructed the building and obtained
electricity connection from BESCOM, which discloses that the
defendant is in possession of the suit schedule property. Hence
the Trial Court committed an error in coming to the conclusion
that the defendant shall not put up any construction and not
granting temporary injunction as sought. Counsel also contends
that the Trial Court has taken note that the defendant is in
possession and it does not require any interference.
7. Having heard both the counsel, it is in not dispute
that the plaintiff had purchased the property in the year 2006.
Wherein the sale deed itself mentioned the property as House
List No.14, V.P.Khata No.297/A/14, Byatarayanapura CMC
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Khata No.1250, the plaintiff claims the title to the extent of
East-west on Northern side 60 feet, on southern side 57 feet
and North-south 40 feet, totally measuring 2340 sq.ft. and the
defendant claims based on the sale deed regarding the site
carved in Sy.No.102/01. The sale deed of the defendant
mentioned the property as new site No.9, (Western Portion of
Site No's 9 & 10 )BBMP Khata No.24/529 /102/1 situated at
38th cross, 19th main road, Hennur. Bangalore-560043 and
previously it was portion of property bearing Sy.No.102/1.
Having considered the same, particularly in respect of
defendant's property out of Sy.No.102/1, the site is carved out
of the said property. The defendant claims, it is a property of
the village panchayat in terms of the sale deed and also there
is a dispute with regard to the property. Both are claming title
over the same property, as they are having the documents
regarding their claim and the same is taken note of by the Trial
Court while considering the I.A. In page No.11 of the order, it is
taken note of that at present both are in possession of the suit
schedule property and both have documents to show that, they
are the owners. I have already pointed out that extent
mentioned in the sale deed of the plaintiff is to the extent of
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2340 sq.ft. and the defendants is to the extent of 1200 sq.ft.
i.e. 30x40 with electricity connection. It is also brought to the
notice of this Court by the respondent counsel that the very
appellant pleaded in the appeal memo, particularly in para 12
that the defendant entered upon the property and with
influence and high handedness removed the appellant's
electricity meter and got a new electricity meter installed in his
own name. It is also pleaded that the appellant is still
continuing to make payments on the said electricity meter even
though the said meter has been illegally taken away from the
schedule property by the respondent. Having taken note of this
pleading, it is crystal clear that the defendant has also taken
the electricity connection and it is also contended that the
defendant removed the electricity connection of the appellant.
Hence, it is clear that total extent of the land claimed by the
plaintiff to the extent of 2340 sq.ft. and the defendant claim is
to the extent of 1200 sq.ft. and both of them claim to have got
electricity connection. So the matter requires to be decided in
a Trial, as to who is having the right in respect of the property.
It is also important to note that the suit is filed for bare
injunction and not for the comprehensive suit of declaration,
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since both of them are claiming right over the property. Such
being the case, the Trial Court rightly took note of the
pleadings and documents, which have been placed by the
plaintiff and the defendant and observed that both of them are
in possession and also I do not find any error committed by the
Trial Court, since the claim of the plaintiff is to the extent of
2340 sq.ft and the defendant is 1200 sq.ft. When such finding
is given, Trial Court rightly moulded the relief sought for in the
I.A. and directed the defendant not to put up any construction
and considered that both of them are having right in respect of
the suit schedule property, since the defendant also claims the
right over the property as claimed. Hence, I do not find any
error committed by the Trial Court in passing the said Order,
moulding the relief sought for in the I.A. and granting relief not
to interfere with the same, since the plaintiff also pleaded that
the defendant entered upon the property of the plaintiff and
removed the electricity connection and he got new electricity
connection. Hence, no error is found in the order of the Trial
Court having considered the rival contentions of the plaintiff
and defendant in respect of the very same property, though the
description of the property differs from the claim made by the
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plaintiff and defendant. Hence, there is no merit in the appeal.
In view of the discussions made above, I pass the following
order:
ORDER
The Miscellaneous First Appeal is dismissed.
Sd/-
JUDGE
NJ
CT:SNN
