Karnataka High Court
Smt. Ramakka vs Sri. P. Thayanna Reddy on 25 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6998 OF 2022(CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7030 OF 2022
IN MFA No. 6998/2022
BETWEEN:
1. SMT RAMAKKA
W/O LATE B H RAMAIAH REDDY
AGED ABOUT 81 YEARS
2. SRI R RAJENDRA REDDY
S/O LATE B H RAMAIAH REDDY
AGED ABOUT 57 YEARS
SRI R PAPAIAH REDDY SINCE DECEASED BY HIS LRS
ALREADY ON RECORD
3. SRI ANANDH
Digitally signed by S/O LATE B H RAMAIAH REDDY
REKHA R
Location: High Court of
AGED ABOUT 53 YEARS
Karnataka
4. SRI MANJUNATH
S/O LATE B H RAMAIAH REDDY
AGED ABOUT 42 YEARS
5. RANI
D/O LATE B H RAMAIAH REDDY
AGED ABOUT 45 YEARS
6. BABY
D/O LATE B H RAMAIAH REDDY
AGED ABOUT 43 YEARS
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MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
ALL ARE R/AT NO.108, MANJUNATHA NILAYA
BEHIND HARYANA HANDLOOMS HOUSE
RAMAMURTHY NAGAR MAIN ROAD
RAMAMURTHY NAGAR POST
BANGALORE-560016
...APPELLANTS
(BY SRI. LEELADHAR H.P., ADVOCATE)
AND:
1. SRI P THAYANNA REDDY
S/O LATE C PILLA REDDY
AGED ABOUT 68 YEARS
R/AT BANASWADI VILLAGE,
OLD POST OFFICE ROAD,
BANGALORE-560 043.
2. SRI P CHANDRASHEKAR REDDY
S/O LATE C PILLA REDDY
AGED ABOUT 58 YEARS
R/A HOYSALA NAGAR
T C PALYA MAIN ROAD
BANGALORE-560016
3. SMT SUSHEELAMMA
D/O LATE C PILLA REDDY
AGED ABOUT 73 YEARS
4. SRI A MUNIRAJU REDDY
S/O LATE RAMASWAMY REDDY
AGED ABOUT 56 YEARS
5. SRI R SRIDHAR
S/O LATE RAMASWAMY REDDY
AGED ABOUT 52 YEARS
6. SRI R VISHWANATH
S/O LATE M MUNI REDDY
AGED ABOUT 50 YEARS
7. SRI P HANUMA REDDY
S/O LATE M MUNI REDDY
AGED ABOUT 52 YEARS
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MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
8. SMT RAJESHWARI
D/O LATE RAMASWAMY REDDY
AGED ABOUT 48 YEARS
9. SMT SUMITHRA
D/O LATE M MUNI REDDY
AGED ABOUT 48 YEARS
10. SRI VINODH
S/O LATE M MUNI REDDY
AGED ABOUT 46 YEARS
11. SRI NAGAVENAMMA
W/O LATE M MUNI REDDY
AGED ABOUT 75 YEARS
R3 TO R11 ARE R/AT BANASWADI VILLAGE
OLD POST OFFICE ROAD
BANGALORE-560043
12. R ANJILE
D/O LATE B H RAMAIAH REDDY
W/O P JAYARAM REDDY
AGED ABOUT 64 YEARS
R/A NEAR SHIVA PARVATHI
KALYANA MANTAPA
OMBR LAYOUT,
BACK SIDE RELIANCE FRESH SHOP
BANGALORE-560043
...RESPONDENTS
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE FOR C/R1-R11)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 12.09.2022 PASSED ON I.A.
NO.2/2019 IN O.S.NO. 4772/2019 ON THE FILE OF THE
XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, REJECTING I.A. NO.2/2019 FILED UNDER
ORDER XXXIX RULES 1 AND 2 OF CPC.
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MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
IN MFA NO. 7030/2022
BETWEEN:
1. SMT. RAMAKKA
W/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 81 YEARS,
2. SRI. R. RAJENDRA REDDY
S/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 57 YEARS,
3. SRI. R. PAPAIAH REDDY
SINCE DECEASED BY HIS LRS.,
SRI. ANANDH,
S/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 53 YEARS,
4. SRI. MANJUNATH
S/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 42 YEARS,
5. RANI
D/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 45 YEARS,
6. BABY
D/O. LATE B. H. RAMAIAH REDDY,
AGED ABOUT 43 YEARS,
ALL ARE R/AT NO. 108, MANJUNATHA NILAYA,
BEHIND HARYANA HANDLOOMS HOUSE,
RAMAMURTHY NAGAR MAIN ROAD,
RAMAMURTHY NAGAR POST,
BANGALORE-560 016.
...APPELLANTS
(BY SRI. LEELADHAR H.P., ADVOCATE)
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MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
AND:
1. SRI. P. THAYANNA REDDY
S/O. LATE C. PILLA REDDY,
AGED ABOUT 68 YEARS,
R/AT BANASWADI VILLAGE,
OLD POST OFFICE ROAD,
BANGALORE-560 043.
2. SRI. P. CHANDRASHEKAR REDDY
S/O. LATE C. PILLA REDDY,
AGED ABOUT 58 YEARS,
R/AT HOYSALA NAGAR,
T.C. PALYA MAIN ROAD,
BANGALORE-560 016.
3. SMT. SUSHEELAMMA
D/O. LATE C. PILLA REDDY,
AGED ABOUT 73 YEARS,
4. SRI. A. MUNIRAJU REDDY
S/O. LATE RAMASWAMY REDDY,
AGED ABOUT 56 YEARS,
5. SRI. R. SRIDHAR
S/O. LATE RAMASWAMY REDDY,
AGED ABOUT 52 YEARS,
6. SRI. R. VISHWANATH
S/O. LATE M. MUNI REDDY,
AGED ABOUT 50 YEARS,
7. SRI. P. HANUMA REDDY
S/O. LATE M. MUNI REDDY,
AGED ABOUT 52 YEARS,
8. SMT. RAJESHWARI
D/O. LATE RAMASWAMY REDDY,
AGED ABOUT 48 YEARS,
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MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
9. SMT. SUMITHRA
D/O. LATE M. MUNI REDDY,
AGED ABOUT 48 YEARS,
10. SRI. VINODH
S/O. LATE M. MUNI REDDY,
AGED ABOUT 46 YEARS,
11. SRI. NAGAVENAMMA
W/O. LATE M. MUNI REDDY,
AGED ABOUT 75 YEARS,
R3 TO R11 ARE R/AT BANASWADI VILLAGE,
OLD POST OFFICE ROAD,
BANGALORE-560 043.
12. R. ANJILE
D/O. LATE B. H. RAMAIAH REDDY,
W/O. P. JAYARAM REDDY,
AGED ABOUT 64 YEARS,
R/AT NEAR SHIVA PARVATHI KALYANA MANTAPA,
OMBR LAYOUT,
BACK SIDE RELIANCE FRESH SHOP,
BANGALORE-560 043.
...RESPONDENTS
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE FOR C/R1-R11)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 12.09.2022 PASSED ON
IA NO.3/2019 IN O.S.NO.4772/2019 ON THE FILE OF THE
XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, REJECTING IA NO.3/2019 FILED UNDER
ORDER 39 RULES 1 AND 2 OF CPC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 6998 of 2022
C/W MFA No. 7030 of 2022
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for the appellants and also
learned counsel for the respondents.
2. Both these appeals are filed against rejection of
I.A.Nos.2 and 3, challenging the rejection of I.As filed
against the defendants/respondents not to put up any
construction in respect of suit schedule 'B' property and
also I.A.No.3 from alienating, creating any third party right
in respect of suit schedule 'B' property.
3. The right claimed by the plaintiff before the trial
Court is that the suit schedule property was part and
parcel of Sy.No.23, measuring 28 guntas of Dodda
Banaswadi Village, out of 28 guntas landwhich 5 guntas of
land were in peaceful possession of Sri. B.H.Ramaiah
Reddy, i.e., father of plaintiff Nos.1 to 7 by virtue of
registered settlement deed dated 15.01.1957 effected
between his brother Sri.H.Krishna Reddy and himself.
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4. It is also the case of the plaintiff that a civil suit
was filed by Sri.H.Krishna Reddy against Sri.B.H.Ramaiah
Reddy for partition in O.S.No.412/1984 for the relief of
partition and separate possession of the family properties,
which came to be settled between them and the suit
schedule property allotted to the share of Sri.B.H.Ramaiah
Reddy. Sri.B.H.Ramaiah Reddy obtained a valid plan and
license and No Objection Certificate duly sanctioned by the
City Municipal Corporation, office of Byappanahalli Village
Panchayath to an extent of East to West 68.3 feet North to
South 80 feet i.e., suit schedule 'A' property and suit
schedule 'B' property for parking their vehicles and other
bonafide reasons.
5. It is also the contention of the plaintiff in the
suit that defendant Nos.1 to 11 are making unauthorized
attempts to encroach the suit schedule 'B' property, which
is southern side and tried to put up an unauthorised
construction and hence, lodged complaint on 02.07.2016
and 25.06.2019 before the jurisdictional police. It is also
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the specific case of the plaint that 2 guntas of land
situated in Sy.No.22 belongs to defendant Nos.1 to 11 is
situated in southern side of suit schedule 'A' and 'B'
properties and the defendants are making an attempt to
encroach upon the portion of the property which is
specifically described in suit schedule 'B' property. In
support of the claim made by the plaintiffs, they have also
produced the documents of Photostat copy of I.A. under
Order 22 Rule 3 of CPC and also O.S.No.412/1984 and the
suit by Sri.H.Krishna Reddy against the father of the
plaintiffs. It is also the contention that I.A. shows that 5
guntas of land registered under registered settlement deed
dated 15.01.1957 was allotted to the share of
Sri.B.H.Ramaiah Reddy and also produced a copy of the
complaint given by plaintiff Nos.2, 4 and 5 to the
Banaswadi Police station on 02.07.2016 and also alleged
in the complaint that defendant Nos.1 to 11 have
constructed a building by encroaching land 22 x 68.3 feet
towards southern side of their 5 guntas of land. It is also
taken note that plaintiffs have filed a suit for the relief for
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mandatory injunction to remove the illegal unauthorized
construction of suit schedule property i.e., to the extent of
encroached portion East to West - 68.3 feet and North to
South - 22.6 feet by demolishing the existing construction.
Plaintiffs have also relied upon the documents which
shows the sketch of bricks, construction materials, etc.
6. The defendants appeared and filed written
statement contending that they never encroached upon
the property of the plaintiffs and they made their specific
claim in the written statement contending that in order to
claim the relief of declaration and for mandatory injunction
they have not produced any documentary proof except the
application filed under Order 22 Rule 3 for compromise
and also it is contended that no sketch is produced for
identification of the property. They have claimed that suit
schedule 'A' property belongs to them and suit schedule 'B'
property is a portion of suit schedule 'A' property and also
contended that they are absolute owners in physical
possession of immovable property bearing house line
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No.382/4 as described in the schedule A to the plaint and
that Sri.B.H.Ramaiah Reddy, who was the husband of
plaintiff No.1 and father of defendant Nos.2 to 7 and
defendant No.12 died intestate in 2004 leaving behind the
plaintiffs to succeed to his estate. It is also contended that
claim title on the basis of said right and their specific case
is that the said property is part and parcel of Sy.No.23 and
also not denies the fact that defendants are owners of the
property bearing Sy.No.22. The plaintiffs are not having
any right, title in respect of suit schedule 'A' property and
they are not in possession of the suit schedule property
and the very claim made by them based on the
compromise entered between the parties in
O.S.No.412/1984, wherein defendants are not parties to
the said suit. It is contended that property which has been
described as schedule 'A' and schedule 'B' property is not
in existence.
7. The allegations made in the plaint also that an
attempt is made to encroach upon portion of suit schedule
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'B' property is erroneous and contends that the defendants
are the absolute owners in so far as the property which
they are claiming in Sy.No.22 and also produced the
documents of the year 1951 and also the property comes
within the jurisdiction of Bengaluru Mahanagara Palike and
also contends that property building which is in existence
is constructed by the defendants in their property i.e., in
Sy.No.22 and also to evidence the said fact they have
produced Photostat report to this Court.
8. Learned counsel also vehemently contends that
in order to prove the existence of suit schedule 'A' and 'B'
properties, there is no any sketch or any document of
identification and hence, the trial Court having taken note
of the material on record has rightly dismissed the I.As
and also relief is sought for the relief of mandatory
injunction apart from the relief of declaration and have to
prove the very existence of the property and also while
seeking the relief of mandatory injunction, they must
establish that there is encroachment as contended in the
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plaint and hence, the trial Court having taken note of the
relief sought in the I.As has rightly dismissed the
applications.
9. In reply to the arguments of learned counsel for
the appellants, learned counsel for respondents
vehemently contends that the very contention of the
defendants that not specifically pleaded with regard to the
identification of the property cannot be accepted. The
learned counsel brought to the notice of this Court para
No.7, wherein it is pleaded with regard to the property of
the defendants and prior to that para Nos.2, 3 and 4 have
pleaded with regard to the prima facie right in respect of
their property and also specifically in para No.7 stated that
defendant Nos.1 to 11 are not in possession of 2 guntas of
land in old Sy.No.22 and new Sy.No.22/1 of Dodda
Banaswadi Village and the same is on the southern portion
of the plaintiffs' property and except 2 guntas of land,
defendant Nos.1 to 11 are not having any inch of land on
southern side and also relied upon the documents to that
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effect and those documents have not been discussed by
the trial Court while passing such an order. The learned
counsel also vehemently contends that the trial Court also
committed error in making an observation that nowhere in
their plaint specifically pleaded as to when exactly
defendant Nos.1 to 11 have encroached the suit schedule
'B' property and what is the nature of the construction, if
any filed by the defendant Nos.1 to 11 in suit schedule 'B'
property and that the same is erroneous and it requires
interference.
10. Having heard the learned counsel for appellants
and also learned counsel for respondents and also taking
into note of specific contention of the plaintiffs and
defendants both are claiming right in respect of the
distinct property, plaintiffs' claim in respect of property
bearing No.23 and also it is a specific case that in
Sy.No.23 totally which was measuring 28 guntas and also
contend that 5 guntas was allotted to them and out of 5
guntas also a claim was made by the brother of plaintiffs
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by filing original suit in O.S.No.412/1984, wherein the
matter was also settled.
11. It is also the claim of the plaintiffs that the suit
schedule 'A' property was allotted in favour of the plaintiffs
in the said settlement and also relies upon order copy
produced before the Court i.e., Order 22 Rule 3 of CPC,
wherein the matter was compromised and also relies upon
some of the photographs. The defendants claim that they
are the owners of the property bearing Sy.No.22 and also
relief sought in the plaint by the plaintiff is not only for the
relief of declaration to declare that plaintiffs are absolute
owners in possession of southern vacant portion of suit
schedule 'B' property measuring East to West - 68.3 feet
and North to South - 22.6 feet of the suit schedule
property, which is part and parcel of suit schedule 'A'
property and also mandatory injunction is sought to the
very same existence stating that to demolish the existence
structure at their cost and restore the same to the
plaintiffs. Having taken note of these two facts, it is clear
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that plaintiffs are seeking relief of declaration in respect of
suit schedule 'B' property, as the same is part of suit
schedule 'A' property and also admitted that there is an
illegal encroachment and construction and sought for
mandatory injunction also.
12. When such being the case, the relief sought
before the trial Court is with regard to not to put up the
construction and also not to alienate the property. When
there is a claim with regard to Sy.No.23 by the plaintiffs
and defendants claiming that old Sy.No.22 and new
Sy.No.22/1 and also the plaintiffs have pleaded that
defendants are also having Sy.No.22 on the southern side
of the property and also that relief is sought for relief of
mandatory injunction that there is an illegal construction
and then the plaintiffs have to prove the very identity of
the property and also if any illegal construction is made by
the defendants in respect of the property of the plaintiffs
i.e., in Sy.No.23, unless a prima facie material is placed
before the Court, question of granting any relief of
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temporary injunction as sought and already construction
was made by the defendants and also relief is sought i.e.,
mandatory injunction to remove the same and hence,
granting of relief of not to put up construction does not
survive for consideration.
13. However, it is the contention of the learned
counsel appearing for appellants that at least trial Court
ought to have granted the relief of not to alienate the
same and the fact that already construction has been
made in suit schedule 'B' property which is part of suit
schedule 'A' property that is the specific pleadings of the
plaintiffs may not establish the identity of the property is
concerned, except the plaintiffs relying upon the
settlement in original suit in O.S.No.412/1984. With
regard to identity of the property is concerned, no
documents of sketch or any survey sketch or plan is
placed before the trial Court and when such being the
case, question of granting any relief not to alienate the
same also does not arise. No doubt learned counsel
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appearing for the appellants would contend that earlier
suit was filed by one Munireddy against the appellants and
the said suit was dismissed and also appeal was
dismissed.
14. There is also no dispute with regard to the title
in respect of suit schedule 'A' property is concerned and
having taken note of the relief sought only in respect of
declaration of suit schedule 'B' property and the relief for
mandatory injunction and hence, granting relief and
dismissal of suit filed by Munireddy against the plaintiffs
would not come to the aid even for granting relief not to
alienate and unless the property is identified and prima
facie establish that there is encroachment by the
defendants in respect of Sy.No.23, which the plaintiffs
claim, question of granting relief not to alienate also does
not arise, since the defendants is not claiming any right in
respect of Sy.No.23 and they are claiming only in respect
of old Sy.No.22, new Sy.No.22/1 and hence, question of
granting the other relief of not to alienate also does not
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arise and it is the matter of the trial to be decided before
the trial Court for identification of property that whether
there is any encroachment in Sy.No.23 or defendants have
put up construction in old Sy.No.22, new Sy.No.22/1.
Hence, no grounds are made to grant any such relief. In
view of the discussions made above, I pass the following:
ORDER
(i) Both appeals are dismissed.
(ii) However, taking into note that suit is of the
year 2019 and both the parties are claiming
distinct property and identification of the
property is required and hence, the trial
Court is directed to dispose of the suit
within a time bound period of one year.
(iii) The respective appellants and respondents
and their respective counsel are directed to
assist the trial Court in disposal of the time
bound period of one year.
SD/-
(H.P.SANDESH)
JUDGE
RR
