Sri Rudraiah vs Sri Ravishankar
2024 Latest Caselaw 27518 Kant

Karnataka High Court

Sri Rudraiah vs Sri Ravishankar on 15 November, 2024

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                      NC: 2024:KHC:46589
                                                    MFA No. 6581 of 2024




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 15TH DAY OF NOVEMBER, 2024

                                         BEFORE

                           THE HON'BLE MR JUSTICE H.P.SANDESH

                   MISCELLANEOUS FIRST APPEAL NO. 6581 OF 2024 (CPC)

                   BETWEEN:

                   SRI RUDRAIAH
                   S/O REVANNA
                   AGED ABOUT 62 YEARS
                   RA/T SHANIMATHMA TEMPLE ROAD
                   MANJUNATH LAYOUT
                   CHALAGHATTA
                   KUMBALAGODU 560060
                                                           ...APPELLANT
                   (BY SRI NARASIMHA MURTHY K AND
                   SRI RAVI S N, ADVOCATES)
                   AND:
Digitally signed
by DEVIKA M        SRI RAVISHANKAR
Location: HIGH     S/O RAMACHANDRAPPA
COURT OF
KARNATAKA          AGED ABOUT 60 YEARS
                   R/T No.3, 5TH MAIN ROAD
                   K G NAGARA, GAVIPURAM EXTENSION
                   BENGALURU SOUTH
                   BENGALURU 560004
                                                         ...RESPONDENT
                   (BY SRI SOMNATH H S, ADVOCATE)
                        THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
                   CPC, AGAINST THE ORDER DATED 04.09.2024 PASSED
                   ON I.A. NO. 1 IN O.S.NO. 326/2024 ON THE FILE OF THE
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                                                   NC: 2024:KHC:46589
                                                 MFA No. 6581 of 2024




ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MAGADI
AND ETC.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE H.P.SANDESH


                        ORAL JUDGMENT

This miscellaneous first appeal is filed challenging the

order dated 04.09.2024 passed on I.A.No.1 in

O.S.No.326/2024 by the Additional Senior Civil Judge and

JMFC, Magadi.

2. Heard the learned counsel appearing for the

respective parties.

3. It is the case of the plaintiff before the Trial

Court that the defendant has encroached the 'B' schedule

property which is a part of 'A' schedule property i.e.,

based on the report given by ADLR to the extent of 5½

guntas in the 'A' schedule property. Hence, sought for the

relief of declaration and possession. The defendant

appeared and filed written statement denying the the

contention of the plaintiff with regard to encroachment and

NC: 2024:KHC:46589

also denied the very averment made in the plaint. The

defendant contends that he is the adjacent owner of 'A'

schedule property. The Trial Court having considered the

pleadings of the parties, an observation is made that

without going to the merits of the case, conducting mini

trial, examined with regard to prima facie case is

concerned wherein an observation is made that when a

suit is filed for the relief of declaration and possession in

respect of 'B' schedule property from the defendant, the

question of granting any temporary injunction restraining

the defendant from interfering with the possession of the

plaintiff does not arise and also observed that on perusal

of the plaint pleading itself it is clear that the plaintiff is

not in possession of the 'B' schedule property. Hence,

rejected the application.

4. The learned counsel for the appellant would

vehemently contend that respondent undertaken not to

make any improvement or development to the property

which was described as 'B' schedule property and the Trial

Court fails to take note of the said fact in consideration

NC: 2024:KHC:46589

while passing an order. The learned counsel for the

respondent submits that short question is involved in the

matter that is when the suit is filed for the relief of

declaration and possession, the question of granting the

relief of temporary injunction restraining the defendant

from interference does not arise.

5. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

available on record, it is clear that the plaintiff claims the

ownership in respect of 'A' schedule property to declare

that he is the owner and also sought for the relief of

possession and also direction against the defendant to

hand over the vacant possession of 'B' schedule property

to the plaintiff. When, such relief is sought, the question

of granting the relief of temporary injunction does not

arise. The Trial Court also taken note of the said fact into

consideration and comes to the conclusion that there is no

prima facie case to grant the relief as sought. Thus, I do

not find any error committed by the Trial Court in rejecting

NC: 2024:KHC:46589

the application in coming to the conclusion that there is no

prima facie case to grant the relief as sought.

6. However, the counsel for the appellant, at this

stage, submits that a direction may be given to the Trial

Court to dispose of the matter at the earliest and the said

submission may be considered.

7. In view of the discussions made above, I pass

the following:

ORDER

The miscellaneous first appeal is dismissed.

The Trial Court is directed to dispose of the matter

expeditiously.

Sd/-

(H.P.SANDESH) JUDGE

SN