Karnataka High Court
Munishamanna vs Smt. Sarojamma on 21 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 7176 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 7176 OF 2024 (CPC)
BETWEEN:
1. MUNISHAMANNA
S/O LATE GIDDAPPA
AGED ABOUT 54 YEARS
R/AT CHEEMANDAHALLI VILLAGE
KASABA HOBLI, HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-562114.
...APPELLANT
(BY SRI. B. RAMESH, ADVOCATE)
AND:
1. SMT. SAROJAMMA
W/O LATE MUNIKRISHNAPPA
AGED ABOUT 73 YEARS
Digitally signed R/AT CHEEMANDAHALLI VILLAGE
by DEVIKA M KASABA HOBLI, HOSAKOTE TALUK
Location: HIGH BENGALURU RURAL DISTRICT-562114.
COURT OF ...RESPONDENT
KARNATAKA (BY SMT. K.UMADEVI &
SMT. T.N.GAYATRI, ADVOCATES FOR C/R)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED
05.09.2024 PASSED ON I.A.NO.1 IN O.S.NO.589/2024 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSAKOTE,
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND
2 R/W SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 7176 of 2024
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
JUDGMENT
Heard learned counsel for the appellant and learned
counsel for the caveator-respondent.
2. This appeal is filed challenging the order passed by
the Trial Court on I.A.No.1, wherein temporary injunction is
granted in favour of the respondent/plaintiff restraining the
appellant/defendant from putting up further construction over
suit schedule 'B' property, pending disposal of the suit.
3. The factual matrix of the case of the plaintiff while
seeking the relief of temporary injunction before the Trial Court
is that she is the absolute owner of all that piece and parcel of
the property bearing Sy.No.44, old Sy.No.44/P13 and new
Sy.No.83 measuring to an extent of 12½ guntas out of the total
extent of 2 acres 2 guntas on the southern side of the suit
schedule 'A' property consisting of a newly constructing
structure on it without having roof measuring 1,001 feet of the
structure. The suit schedule 'B' property is the part and parcel
of the suit schedule 'A' property and sought for the relief of
temporary injunction.
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4. While seeking such relief, it is pleaded before the
Trial Court that plaintiff is the absolute owner in possession and
enjoyment of the suit schedule 'A' property having acquired the
same by way of inheritance. The defendant without any right
and title is trying to interfere with portion of 12½ guntas i.e.,
suit schedule 'B' property on the western side of the suit
schedule 'A' property and planting small coconut tree and on
southern side illegally constructed the structure. Hence, plaintiff
lodged a complaint before the jurisdictional police and also filed
an application before the Deputy Commissioner, Bengaluru
Rural District on 31.07.2024. Hence, prayed the Court to grant
the relief of temporary injunction.
5. In pursuance of the suit summons, the defendant
appeared and filed written statement contending that averment
made in the plaint is not correct and plaintiff is in possession of
excess of land what she had claimed in the present suit and the
plaintiff as on today is in possession of 2 acres 36 guntas and
she herself has encroached a land measuring to an extent of 34
guntas which is in possession of adjacent lands which are
granted in favour of third parties as claimed by the plaintiff in
the present suit and the plaintiff is in possession of 2 acres 36
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guntas as on today. Hence, the suit filed by the plaintiff is
devoid of merits and prayed the Court to dismiss the
application.
6. The Trial Court having considered the grounds
urged in the application as well as the statement of objection,
formulated the points whether the plaintiff has made out prima
facie case in her favour, whether balance of convenience lies in
her favour and if temporary injunction is not granted who will
suffer hardship and injustice.
7. The Trial Court having considered the material on
record, comes to the conclusion that plaintiff has made out a
prima facie case that there is an encroachment and comes to
the conclusion that by virtue of the grant made by the Tahsildar
as per Saguvali Chit dated 30.04.1998, the plaintiff is in
possession and enjoyment of the suit schedule property. On
perusal of the Haddubasthu sketch produced by the plaintiff, it
clearly goes to show that the person who is in possession of
resurvey No.44 has encroached an extent of 12½ guntas in suit
'B' schedule property and also observed that considering the
photographs, it goes to show that the defendant is in
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possession of adjacent property of the plaintiff. Therefore, the
Trial Court comes to the conclusion that 'B' schedule property
was encroached by the defendant, but the same was denied as
false. If the defendant is allowed for further construction by
encroaching the suit schedule 'B' property, the plaintiff may be
put to great loss and injustice. Hence, granted the relief of
temporary injunction. Being aggrieved by the said order
passed by the Trial Court, the present appeal is filed before this
Court.
8. The main contention of the learned counsel for the
appellant before this Court is that, as pleaded before the Trial
Court in the written statement, the defendant is in excess
possession of the property to the extent of 2 acres 3 guntas,
though land was granted only to the tune of 2 acres 2 guntas.
When such argument was made before this Court, with the
consent of learned counsel for both the parties, Commissioner
was appointed and the Commissioner has also filed the report
before this Court. Now, learned counsel appearing for the
appellant would vehemently contend that even as per the land
shown in the Commissioner report, claim of the
appellant/defendant is 2 acres, but the area in occupation is to
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the extent of 2 acres 30 guntas. Learned counsel also would
vehemently contend, though it is stated by the Commissioner
that shed is in the land belonging to the plaintiff and the same
is only maximum to the extent of 0.00½ gunta and not to the
extent of 12½ guntas as contended by the plaintiff. Hence, the
Trial Court committed an error in coming to such conclusion
that 'B' schedule property was encroached by the appellant and
the very impugned order passed by the Trial Court is not
maintainable and it requires interference of this Court.
9. Per contra, learned counsel for the caveeator-
respondent/plaintiff would contend that the property granted is
clearly mentioned in the sketch i.e., 'ACIJKM' to the extent of 2
acres 2 guntas and report is also very clear that portion of the
property was encroached by the defendant. Hence, the Trial
Court rightly granted the relief of temporary injunction not to
put up any construction. The counsel also would contend that
already phodi work was done with regard to the said area is
concerned. Hence, it does not require any interference.
10. In reply to the argument of the learned counsel for
the caveator-respondent, learned counsel appearing for the
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appellant would vehemently contend that even though the land
is shown as 'ACIJKM' to the extent of 2 acres 2 guntas, but in
point No.4, it is mentioned that they are in possession to the
extent of 2 acres 5 guntas as per 'BDHLNV' in respect of very
same Sy.No.44. The counsel also brought to notice of this Court
that extent of 4 guntas was in possession of the defendant i.e.,
'DEFGH' and having taken note of said fact into consideration, it
is very clear that plaintiff is in excess possession of the
property.
11. Having heard learned counsel appearing for the
appellant and learned counsel appearing for the caveator-
respondent and also considering the Commissioner report as
well as the very contentions of the respective counsel, the
points that would arise for consideration of this Court are:
(i) Whether the Trial Court committed an error in
granting the relief of temporary injunction in
favour of the plaintiff and whether it require
interference of this Court?
(ii) What order?
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Point No.(i)
12. Having heard learned counsel appearing for the
appellant/defendant and learned counsel appearing for
caveator- respondent/plaintiff, it is not in dispute that land was
granted in favour of the plaintiff to the extent of 2 acres 2
guntas. The report of the Commissioner is very clear identifying
the property which was granted in favour of the
respondent/plaintiff and the same is phoded and shown as
'ACIJKM'. Hence, the report of the Commissioner is very clear
with regard to the fact that the appellant is claiming the land
i.e., 'BNOPQRSTUV' which belongs to the defendant in
Sy.No.44, old Sy.No.44/P5 and claim is to the extent of 3
acres. But, as per report, the possession and enjoyment, the
same is only to the extent of 2 acres 30 guntas. No doubt, the
Commissioner is also appointed, the excess land which is in
possession of the plaintiff i.e., on the northern side of the
property of the plaintiff is not claimed by the
appellant/defendant and the same is very adjacent to 'Halla'.
The Court has to take note of granted land which is demarcated
as 'ACIJKM'. Having taken note of the said area which is
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demarcated, portion of the said area is encroached which has
been phoded after grant made in favour of the plaintiff.
13. When such material is available on record and the
red line which is shown in the survey sketch comes within the
area of 'ACIJKM' i.e., in between 'AB' and 'ABN', the same is
clearly disclosed in the report of the Commissioner and also no
specific report is given as regards what is the extent of
encroachment, but the fact is that construction made by the
defendant is stalled, in view of the order passed by the Trial
Court that the construction made by the appellant/defendant
comes within the area of 'ACIJKM' and it is very clear that shed
is constructed in the encroached area of the plaintiff. When
such being the case and material available on record, the
report of the Commissioner clearly discloses with regard to the
encroachment made by the defendant. The total area of the
land of the defendant is shortfall to the extent of 10 guntas
instead of 3 acres. Even if the plaintiff is in possession of any
additional land, the Court has to take note of the granted area
which is mentioned in the report and the Commissioner report
clearly disclose that within the area of 'ACIJKM' itself,
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construction of shed is taken up by the appellant/defendant.
When such being the case, I do not find any error committed
by the Trial Court and the Trial Court comes to the conclusion
that with regard to the portion of the property which is
mentioned as 'B' schedule property, interim relief is granted.
The encroachment of 12½ guntas of land has to be considered
during the course of trial and at this juncture, the Court cannot
decide the same and the matter requires trial with regard to
the encroachment is concerned. But, prima facie, the
construction taken up by the defendant comes within the area
of 'ACIJKM' and in terms of the survey report, portion of
construction is in the said area and hence, defendant is
restrained from putting up any construction in the area which is
clearly mentioned in the report filed by the Commissioner i.e.,
the portion demarcated as 'ACIJKM' and the order impugned is
modified to that extent. Accordingly, I answer point No.(i) as
'partly affirmative'.
Point No.(2)
14. In view of the discussion made above, I pass the
following:
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ORDER
(i) The appeal is allowed in part.
(ii) The appellant is directed not to put up any
construction in the area which is identified by
the Commissioner in the sketch as 'ACIJKM'
and the same is phoded.
(iii) The Trial Court is directed to dispose of the
suit within a time bound period of one year
from the date of receipt of copy of this order
and both the plaintiff and the defendant and
their respective counsels are directed to
assist the Trial Court in disposal of the case
within the time bound period of one year.
(iv) The respective counsels of the parties are
directed to produce copy of this order to the
Trial Court, forthwith to enable the Trial Court
to dispose of the matter in a time bound
period.
Sd/-
(H.P.SANDESH)
JUDGE
ST
