[Cites 3, Cited by 0]
Karnataka High Court
Kulumi Ashabi W/O Yusuf Sab vs Kulumi Fathimabi W/O Late Hamid Sab on 18 February, 2026
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WP No. 103460 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 18TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 103460 OF 2022 (GM-CPC)
BETWEEN:
KULUMI ASHABI W/O YUSUF SAB
AGE. 64 YEARS,
OCC. HOUSEHOLD WORK,
R/O. 13TH WARD , PATHANAGERI,
HARAPANAHALLI TOWN,
DIST. VIJAYANAGARA -583131.
...PETITIONER
(BY SRI. J. S. SHETTY, ADVOCATE)
AND:
KULUMI FATHIMABI W/O LATE HAMID SAB
AGE. 70 YEARS, OCC. HOUSEHOLD WORK,
R/O. 13TH WARD , PATHANAGERI,
Digitally signed by
YASHAVANT HARAPANAHALLI TOWN,
NARAYANKAR
DIST. VIJAYANAGARA.
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY MISS. RANJITA ALAGWADI, ADV.
FOR SRI.PRAVEEN TARIKAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO, A) ISSUE A
WRIT OF CERTIORARI TO QUASH THE ORDER DATED ORDER
DATED 22.6.2022 PASSED IN M.A.NO.4/2022 AND
M.A.NO.5/2022 BY THE SENIOR CIVIL JUDGE AND JMFC,
HARAPANAHALLI, THE COPY OF WHICH HAS BEEN PRODUCED
HEREWITH AND MARKED AS ANNEXURE-A; B) ANY OTHER WRIT
OR DIRECTION WHICH THIS HONOURABLE COURT DEEMS FIT
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WP No. 103460 of 2022
HC-KAR
TO GRANT MAY KINDLY BE GRANTED IN FAVOUR OF THE
PETITIONER BY ALLOWING THIS WRIT PETITION WITH THE
COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY.
THIS WRIT PETITION, COMING ON FOR DISMISSAL, THIS
DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the orders passed in MA Nos.4 and 5 of
2022, dated 22.06.2022, by the Senior Civil Judge and JMFC,
Harapanahalli, the plaintiff is before this Court.
2. The petitioner/plaintiff had filed suit in OS
No.41/2022 seeking a declaration that the plaintiff is the
owner and possessor of the suit schedule 'A' property as
mentioned in the plaint sketch and seeking an injunction
restraining the defendant from interfering with the peaceful
possession and enjoyment of the plaintiff and also not to lay a
foundation over the suit schedule 'B' property. Along with the
suit, the plaintiff had also filed IA No.1 seeking an injunction
restraining the defendant from interfering with the peaceful
possession and enjoyment of the plaintiff over the suit
schedule properties and also not to lay a foundation and not to
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construct the illegal building as mentioned in the plaint sketch.
It is the case of the plaintiff that one Kulumi Fakruddin Sab
was the owner and possessor of the suit scheduled property.
The said Fakruddin Sab had three sons and one of the sons by
name Ismail Sab had a wife by name Kuthijabi. They were
blessed with a daughter by name Kulumi Ashabi i.e., the
plaintiff in the suit. The daughter, father and mother had got
divided their properties equally and the same was mentioned
in the plaint sketch. They had executed a registered Gift Deed
dated 26.06.1979 in favour of the plaintiff in respect of the
suit 'A' schedule property. On the basis of the registered Gift
Deed dated 26.06.1979, name of the plaintiff was mentioned
in the demand register extract as owner and possessor of the
suit scheduled property. Earlier, the property was covered
with a zinc sheet roofed mud house and now the said house
collapsed and at present, the suit scheduled property is a
vacant site bearing old Door No.577 and new Door
No.408/577/408, measuring East-West:13.71 metres and
North-South:6.85 metres situated at 13th ward, Pattanageri in
Harapanahalli Town. It is the case of the plaintiff that earlier
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she had filed OS No.52/1998 against the very same defendant
seeking the injunction, that came to be dismissed on the
ground of variation of measurements in the records and
description of the suit scheduled properties in the plaint.
Against that, RA No.36/2006 was filed and the same was
dismissed confirming the judgment and decree of the trial
Court. It is further case of the plaintiff that she is in
possession of the property even till today and in the earlier
suit proceedings, the defendant did not deny the existence of
plaintiff's property and also enjoyment of the plaintiff in
respect of the suit schedule property. The defendant, whose
land is situated towards southern side of the suit property, is
trying to lay a foundation and trying to evict the plaintiff from
the suit schedule property. In this regard, the plaintiff had
also lodged written objections before the TMC, Harapanahalli
on 08.02.2022 requesting the authorities to stop the illegal
construction. Hence, the plaintiff had sought for injunction.
3. It is the case of the defendant that she had
purchased the property from one Hafizabi for consideration of
an amount of Rs.1,000/- through registered Sale Deed dated
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12.01.1981. On the basis of the said registered Sale Deed, the
defendant is in possession of the property. Out of the said
property, the Karnataka Slum Development Board had
sanctioned the house permission measuring east-west 14 feet
and north-south 24.27 feet after verifying all the records. It is
further case of the defendant that the defendant did not
encroach any portion of the plaintiff's property.
4. The trial Court by order dated 5.3.2022 had
granted injunction. While granting injunction, the trial Court
had observed that the Gift Deed discloses that there is
overwriting on the said document in respect of the suit
property towards east-west and the same is shown as 30 feet
instead of 20 feet and also boundary of the said property
mentioned towards southern side, there is open space which
belongs to Masuti. As per the plaint schedule, towards
southern side, the property of the defendant is situated. Now
the point for consideration is, how much area the defendant
has encroached the suit property and according to pleading,
her elder mother of the plaintiff sold the property in favour of
the plaintiff. But the Gift Deed discloses that the suit schedule
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property was sold by Kuttejabi, W/o Driver Naseer Sab in
favour of the plaintiff. Hence, the question as to who sold the
suit property in favour of the plaintiff and who are in actual
possession of the suit property and how much area, the
defendant had constructed house by encroaching the suit
property, has to be decided by the Court after a full-fledged
trial. The trial Court further observed that on perusal of the
photographs, it discloses that the construction is going on and
the defendant stored the men and material on the suit
property. At this stage, if the construction is stopped, it is the
defendant, who will put to irreparable loss, hardship and
injury. Therefore, the documents produced by the plaintiff are
not sufficient to grant injunction. Hence, if the plaintiff
succeeds to prove the case that the defendant had encroached
the property and constructed the house, the defendant has to
hand over the encroached area. Considering all these facts, in
case ad-interim injunction is not granted, no hardship or any
injury would be caused to the plaintiff. The trial Court felt that
at this stage, the plaintiff failed to make out a prime facie case
and as such, the balance of convenience does not lie in her
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favour. But in the operative portion of the order, the trial
Court allowed IA No.1 filed by the plaintiff under Order XXXIX
Rules 1 and 2 of CPC and restrained the defendant from not to
lay a foundation and not to construct the illegal building over
petition schedule 'B' property.
5. Aggrieved thereby, both the plaintiff as well as the
defendant had filed MA Nos.4 and 5 of 2022. The appellate
Court had dismissed the appeal filed by the plaintiff and
allowed the appeal filed by the defendant i.e. MA No.4/2022.
While allowing the appeal filed by the defendant, the appellate
Court had observed that at this stage, the Court cannot come
to the conclusion as to whether the defendant is constructing
the building by encroaching the plaintiff's property or not, that
requires a full-fledged trial. As per the schedule shown in the
plaint, the defendant's property comes towards the southern
side of the plaint schedule property. Therefore, it is clear that
both plaintiff's and defendant's properties are different. As per
the notice issued by the TMC, the defendant had started
construction in her property. The trial Court had rightly
observed that at this stage if the construction is stopped, the
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defendant would be put to irreparable loss, hardship and
injury rather than the plaintiff. Though certain documents
have been produced by the plaintiff, the same do not disclose
that the defendant is constructing the house by encroaching
the plaintiff's property. As rightly observed by the trial Court,
the plaintiff had failed to show the prima facie case and the
balance of convenience does not lie in her favour. The
appellate Court had also observed that how all the issues are
held negative against the plaintiff and how an injunction order
is passed by the trial Court.
6. Learned counsel appearing for the
petitioner/plaintiff submits that by placing all the documents,
the defendant could demonstrate before the Court that she
had a prima facie title to the property and if the construction
is made by the defendant, it would cause a lot of hardship to
the plaintiff, both the Courts have failed to appreciate the said
fact. It is submitted that if the injunction is not granted and if
the defendant proceeds with the construction, the petitioner
will be put to lot of hardship; both the Courts below have
failed to consider this aspect as well. It is submitted that the
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plaintiff had established a prima facie case, balance of
convenience and irreparable loss, which were not considered
by both the Courts.
7. Learned counsel for the respondent/defendant
submits that the trial Court having given all findings in favour
of the defendant, however, had granted injunction. It is
further submitted that the appellate Court appreciating all the
aspects, particularly with regard to the discrepancy and
overwriting in the Gift Deed had rightly allowed the appeal
filed by the defendant. Hence, there are no grounds to
interfere with the well-considered order passed by the
appellate Court.
8. Having heard the learned counsels on either side,
perused the material on record. The suit is filed for declaration
and injunction. Along with that, she had filed an IA seeking
interim injunction. When an application is filed seeking interim
injunction, the burden lies on the plaintiff to prove that there
is a prime facie case and a balance of convenience and if the
injunction is not granted, it would cause irreparable loss to the
plaintiff. In this case, the plaintiff is alleging her right to the
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property based on a gift deed. The defendant is also alleging
her right to the property basing on a registered document. It
is an admitted fact that both of them are neighbours. It is the
case of the plaintiff that the defendant is trying to encroach
the property of the plaintiff and to put-up the construction.
While granting the injunction restraining the defendant from
making construction, in a case of this nature, the prime facie
title of the plaintiff is not relevant. According to both the
plaintiff and the defendant, they are the owners of the
property based on certain documents. Now the issue that has
to be considered by the Court is, whether there is any material
before the Court to show that in the land belonging to the
plaintiff, the defendant is making any construction.
9. The trial Court as well as appellate Court had
rightly observed that at this stage, the Court cannot come to a
conclusion that the defendant is making construction by
encroaching the land belonging to the plaintiff. The TMC had
already granted permission to the defendant for making
construction. The petitioner had given a complaint stating
that without any permission, the defendant is making
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construction, however, the same would be addressed by the
local authorities basing on the complaint given by the plaintiff.
Now at this stage, in the backdrop of these facts, if an
injunction is granted, as held by both the Courts below, it
would cause hardship and irreparable loss to the defendant
and denied the injunction as sought for. However, the trial
Court had rightly observed that in case if the Court comes to a
conclusion that the defendant has encroached the property
belonging to plaintiff and made construction, the Court will
direct the defendant to remove the illegal construction, which
is made by encroaching the property of the plaintiff. In these
circumstances, there are no ground to grant injunction in
favour of the plaintiff restraining the defendant from not to
put up any construction in the schedule property. Though the
trial Court had rightly held, but wrongly allowed the IA, which
is contrary to the finding given by it. However, the appellate
Court had corrected the same and refused to grant injunction
against the defendant. In that view of the matter, this Court
finds no reason to interfere with the order impugned.
Accordingly, this Court proceeds to pass the following:
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ORDER
i) The writ petition is dismissed.
ii) Pending I.As. in this petition shall stand closed.
Sd/-
JUSTICE LALITHA KANNEGANTI
JTR
CT: CNB
List No.: 1 Sl No.: 2
