Karnataka High Court
Smt Nagamma vs Munawar @ Munavar on 30 June, 2025
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MFA No. 1210 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 1210 OF 2025 (CPC)
BETWEEN:
SMT. NAGAMMA
W/O LATE KRISHNAPPA
AGED ABOUT 85 YEARS
R/AT NO.25, 26TH "B" MAN ROAD
PUTTAIAHANAPALYA, 9TH BLOCK
JAYANAGARA, BENGALURU-560 069
...APPELLANT
(BY SRI. GOPALA H.M, ADVOCATE)
AND:
1. MUNAWAR @ MUNAVAR
S/OLATE BADE SAB
AGED ABOUT 35 YEARS
2. MEHABOOB
Digitally signed by S/O LATE BADE SAB
SHAKAMBARI AGED ABOUT 40 YEARS
Location: High
Court of
Karnataka 3. SUBAIR
S/O LATE BADE SAB
AGED ABOUT 50 YEARS
ALL ARE R/AT No.20, 26TH B MAN ROAD
PUTTIAHNANAPALYA, 9TH BLOCK
JAYANAGARA,
BENGALURU-560 069
...RESPONDENTS
(BY SRI. GOVINDARAJ K. JOISA, ADVOCATE FOR R1)
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MFA No. 1210 of 2025
HC-KAR
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.22.01.2025 PASSED ON IA NO.1 IN
O.S.NO.160/2025 ON THE FILE OF THE XXVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, (CCH-9), BENGALURU,
REJECTING IA NO.1 FILED U/O 39 RULE 1 AND 2 R/W SEC 151
OF CPC WITH COST.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
ORAL JUDGMENT
This appeal is preferred by the plaintiff/appellant
under Order XLIII Rule 1(r) he Code of Civil Procedure,
1908 (for short, "CPC"), assailing the order dated
22.01.2025 passed by the learned XXVII Addl. City Civil
and Session Judge (CCH-09), Bengaluru City passed in
O.S. No.160/2025, whereby the Trial Court has dismissed
IA No.1 filed by the plaintiff under Order XXXIX Rule 1 and
2 read with Section 151 of CPC, seeking an order of
Temporary injunction to restrain the defendants from
putting up further construction over the suit B-schedule
property.
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2. The suit filed by the plaintiff before the Trial
Court is one for declaration, mandatory injunction and
permanent injunction in respect of a residential property
bearing No.25, measuring 38x48 feet more fully described
as A-Schedule property in the plaint. It is a specific case
of the plaintiff, that there exists a 6-feet-wide lane
between the A-Schedule property and 26th B Main Road,
passing between the houses of the defendants
predecessors and another person, Imam Sab, which
provides only access to the plaintiff's property. This strip
of land is described in the plaint as the suit B-Schedule
property.
3. The grievance of the plaintiff is, that the
defendants, by taking advantage of certain outdated and
inconsistent measurements mentioned in the Gift Deed
dated 17.01.1947, are constructing a building over the
said passage, thereby obstructing access to the plaintiff's
property and violating her easements rights. Along with
the plaint, plaintiff has produced a rough sketch and
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photographs showing the existence of the passage and
alleged encroachment and has sought interim relief to
maintain the status-quo.
4. The Trial Court, after considering the pleadings
and objections, declined to grant Temporary injunction on
the ground that, the plaintiff failed to establish the prima
facie case so as to grant Temporary injunction. It relied
on the description of the boundaries in the Gift Deed and
Sale Deed and observed that, there was no mention of a
6-feet passage in the property documents. It also noted
that, construction had advanced to the 1st floor and that
injuncting further construction would cause undue
hardship to the defendants. By observing so, the Trial
Court rejected the application with cost.
5. The learned counsel for the appellant with all
vehemence submits that, when defendant is encroaching
the 6-feet-wide strip of land situated between their houses
and passage running east to west from 26th B Main Road,
forming part of the B-schedule property, thereby the
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plaintiff is deprived of making use of the said 6-feet-wide
strip. He would submit that, on perusal of the documents
so produced, so also the Gift Deed dated 17.01.1947
reveals that, there is no mention with regard to the said
6-feet-wide passage and plaintiff is constant to file the suit
seeking the aforesaid relief. The plaintiff refers to her own
Sale Deed which shows that, there exists a 6-feet-wide
road on western side of A-Schedule property. By relying
upon the said documents and grounds urged in the appeal
memo, it is submitted by counsel for the appellant/plaintiff
to allow the appeal and set aside impugned order and
sought relief of injunction against the defendants as
prayed in IA No.1.
6. As against this submission, learned counsel for
the respondents/defendants justified the reasons assigned
by the Trial Court and submits that, the photograph so
produced by the defendants not only before the Trial
Court, so also before this Court do establish that, the
construction of building is already in progress and halting
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the said construction at this stage would cause significant
hardship. There exists no 6-feet-wide passage in the
manner stated by the plaintiff. Therefore, he would
submit that the Trial Court is right in dismissing the
application filed by the plaintiff.
7. Having heard the arguments of both sides and
on perusal of the material placed on record, as the plaintiff
has sought Temporary injunction against defendants, the
Court has to consider the principles regarding grant of
Temporary injunction. It is held by the Hon'ble Apex Court
in DALPAT KUMAR V. PRAHLAD SINGH, [(1992) 1
SCC 719], wherein the Hon'ble Apex Court emphasized
that the grant of interim injunction depends on proving a
a. prima facie case,
b. balance of convenience and
c. irreparable injury.
Unless these ingredients proved, the plaintiff is not
entitled for injunction.
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8. On scrupulous reading of the entire material
placed on record, this Court is of the considered view that
the approach of the Trial Court in denying interim relief
suffer from a lack of equitable appreciation of facts and
documents. When plaintiff alleged that there exists a
passage to approach the Main Road so situated and it is
alleged that there is an encroachment by the defendants,
the Trial Court ought to have considered the documents
produced and would have appreciated the facts of the case
so as to come to a definite conclusion about the aforesaid
ingredients to grant the Temporary injunction. It is a
settled principle that grant of injunctions must be
considered not only on documentary title, but also on
possession of user, balance of convenience and potential
for irreparable harm.
9. The plaintiff has produced photographs, a
rough sketch and earlier revenue documents indicating the
existence of a passage since time immemorial, and the
same has not been specifically rebutted by the defendants
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through any authoritative survey, municipal plans or
boundary commission reports. The Gift Deed dated
17.01.1947 relied on by the defendants measurement of
only 10x16 feet, whereas defendants are claiming
ownership over a much larger portion i.e., 24x20 feet
which they failed to justify adequately. Additionally, the
defendants themselves relied on a Mortgage Deed dated
23.06.1979 wherein they attempted to enlarge boundaries
mentioned in the original Gift Deed. This contradiction is
overlooked by the Trial Court, which clearly raises serious
doubt about the legitimacy of the construction. A
construction made on the disputed property during the
pendency of litigation, if allowed to proceed unchecked,
will undoubtedly lead to multiplicity of proceedings and
injustice.
10. It is brought to the notice of this Court by the
defendants/respondents that, most of the construction is
completed. To prove the said fact, the photographs are
produced along with list of the documents dated
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30.06.2025. These photographs are not disputed by the
plaintiff. Though defendants submit that construction has
reached its finality, it is a well established legal principle
that, no person can take advantage of their own wrongful
act. A party undertaking construction on the face of
opposition and pending suit must be deemed to have
acted at his own peril. In the light of the above facts and
circumstances so brought on record, this Court is of the
considered view that, while the interim relief can no longer
restrain the ongoing construction, as an immediate
preventive measure due to its reaching finality status, that
however, the equity must be balanced in favour of
reserving the alleged plaintiff legal remedy. Therefore, the
Trial Court order is upheld, but subject to specific
direction, protecting the plaintiff right if any, which are
established during the course of trial in the pending suit.
Hence, the order dated 22.01.2025 passed by the Trial
Court in IA No.1 in O.S.No.160/2025 rejecting the
Temporary injunction is upheld, however with some
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modifications. The construction undertaken by the
defendants is strictly at their own risk and same shall
subject to the final outcome of the suit.
11. In the event the Trial Court, after detailed trial
and evidence finds that the construction is in violation of
the plaintiff's alleged rights or encroached upon a public or
a private passage, it shall be open to the Trial Court to
order removal or demolition of such constructions and no
equity shall be claimed by the defendants for the said
structure merely because of its completion.
12. It is clarified that, the observations made
hereinabove are purely for the purpose of adjudicating this
appeal and shall not influence the Trial Court while
deciding the suit on merits. With these observations, this
appeal is disposed off.
No orders as to cost.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
