"In my view there is no doubt that the nature of
the property requires to be maintained in the same
status till the suit is disposed of the same. But, while
saying so what requires to be kept in mind is also the
fact the defendants claim to have purchased 21 guntas
of land and as such from the said extent even if the
area constituting the six sites belonging to the plaintiffs
are excluded there would be still left over land
belonging to the defendants to which they cannot be
restrained. The restraint is to an area measuring East
to West 110 feet and North to South 80 feet. Hence,
existence of the wall till the disposal of the suit cannot
affect the right of the parties in any manner and as
such a direction to the defendants to remove compound
wall at this stage may not be necessary and as such
that portion of the order directing defendants is
required to be kept in abeyance till the suit is disposed
of since in any event after the disposal of the suit if the
plaintiffs succeed in the suit it would be their option as
to whether they should retain the compound wall or
not. On the other hand, in the event of the defendants
succeeding in the suit they would be entitled to retain
the same. Therefore, directing them to remove the
compound wall at this stage, would be as if putting the
Cart before the Horse. However, at the same time the
benefit of injunction should enure to the benefit of the
plaintiffs and the sites to which they lay claim cannot
be kept enclosed and therefore the gate would have to
be removed by the defendants."
4. Thereafter this Court has issued directions and
Considering that an interim arrangements of this
nature has been made in these appeals it is desirable
that the Court below should dispose of the suit as
expeditiously as possible, but in any event not later
than 31.12.2008."
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5. Sri.Srivatsa, learned Senior Counsel appearing
for the appellants submits that the only disputed extent of
land is 110' feet x 80' feet. The order passed by this Court
in the above said MFAs' is to remove the gate, if it is
within 110 feet, but this Court has not disturbed the
construction of compound wall already existed and that
would be kept subject to result of the suit. Further he
submitted that the gate was already fixed beyond the
distance of 110 feet and therefore, there was no occasion
for removing the gate since the gate was not within the
distance of 110 feet.
6. Considering the submission when the trial court
has held that the defendants are guilty of violation of the
order passed by this Court, it was incumbent upon the trial
court to give finding first whether the gate fixed is within
the boundary of 110 feet or beyond 110 feet. The order
passed by this Court in the above MFAs is if the gate is
within 110 feet, then it shall have to be removed. On this
aspect the defendant No.1/DW1 has given evidence and in
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the cross-examination the defendant No.1/DW1 has
deposed as follows:
"Certified copy of the judgement in MFA
received by this Court is marked as Ex.C1. I have
not removed the gate of the compound wall as per
the direction of the Hon'ble High Court in the said
MFA. I have not shifted the existing gate as per the
direction of the Hon'ble High Court in the said MFA."
7. Therefore, it is the evidence of defendant
No.1/DW1 that said gate is existing beyond the distance of
110 feet and as such, he has not removed the gate. When
this being the evidence of defendant No.1/DW1, the trial
court before holding that defendants are guilty of violation
of orders passed by this Court, it ought to have given
finding that the gate is within the distance of 110 feet.
Therefore, the trial court upon considering the evidence of
DW1 has not fully appreciated the same, resulting into
erroneously holding that defendants are guilty of violation
of the order. What the trial court has observed is that as
per evidence of defendant No.1/DW1 though it is not
necessary for him to remove the gate, but the trial court
has misconstrued the evidence of defendant No.1/DW1 by
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forming a wrong opinion that admission given by
defendant No.1/DW1 is sufficient to believe that as he has
not removed the gate. Hence, came to conclusion that the
defendants have disregarded the order passed by this
Court.
8. The order passed by this Court in MFA
Nos.1200/2007 and 1201/2007 ought to have been
considered in its spirit not only on the letter but as it is to
the effect that if the gate is within 110 feet the same shall
be removed and if the said gate is not removed, then the
defendants would be held guilty of violation of order. But
the trial court without recording finding on this aspect
whether the gate is situated within 110 feet distance or
beyond 110 feet distance, simply observed that there is
order of removal of gate from this Court and the
defendants not removing the gate is amenable to causing
violation of an interim order, is not correct appreciation of
the evidence and order passed by this Court. Therefore,
the trial court has committed an error in not considering
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the factual aspect and wrongly held that the defendants
are guilty of violation of the order passed by this Court.
9. Upon reappreciating the evidence available on
record, as discussed above and also the order passed by
this Court, it is proved that there is no violation of interim
order by the defendants. Therefore, the order passed by
the trial court holding that defendants are guilty of the
interim order is liable to be set aside and the appeal is
liable to be allowed.
10. For the reasons aforestated, I proceed to pass
the following:
ORDER
(i) The MFA Nos.1200/2007 and 1201/2007
are allowed.
(ii) The order dated 22.10.2013 passed by
XIII Addl. City Civil Judge, Mayohall Unit,
Bangalore (CCH-22), on I.A.No.II filed
under Order XXXIX Rule 2A of CPC in
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O.S.Nos.16082/2006 and 16083/2006, is
set aside.
(iii) Consequently, the application filed under
Order XXXIX Rule 2A of CPC is also
dismissed.
(iv) No order as to costs.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
DR
