IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.5043 OF 2018(CPC) BETWEEN:
John Francis D’souza S/o. Leo A. D’souza, Aged about 65 years, Anthony’s Compound, Near Milagres Church, Mangaluru-575001.
(By Sri. Sanath Kumar Shetty, Advocate) AND:
1. Ernest Viegas, S/o. Victor R. Viegas, Aged about 68 years, Zion, Coelho Road, Falmir, Mangaluru-575001.
2. Merwyn Viegas, S/o. Victor R. Viegas, Aged about 57 years, Viegas compound, Behind Hotel Keerthi Mahal, Falmir Road, Mangaluru-575001.
…Appellant ... Respondents (By Sri. M.Sushakar Pai, Advocate for C/R1 & R2) This MFA is filed Order 43 Rule 1(r) of CPC, against the order dated 30.05.2018 passed on I.A.II in O.S.No.72/2018, on the file of the II Additional Senior Civil Judge & Chief Judicial Magistrate, Mangaluru, D.K., allowing the I.A.No.II filed under Order 39 Rules 1 and 2 Read with Section 151 of CPC.
This MFA coming on for admission this day, the Court delivered the following:
JUDGMENT This appeal is by the defendant in O.S.No.72/2018 on the file of the Second Additional Senior Civil Judge, Mangaluru.
2. The plaintiffs’ suit is for possession of plaint ‘B’ Schedule property, which is part of plaint ‘A’ schedule property. It is stated that ‘B’ schedule property has been encroached upon by the defendant’s. The plaintiffs’ property and the defendant’s property are situated adjacent to each other. The plaintiffs alleged that the defendant tried to trespass over the suit property and therefore they sought for an order of temporary injunction pending disposal of the suit to restrain the defendant from encroaching upon ‘A’ schedule property from the eastern side. The defendant’s contention is that he has a right of way in ‘A’ schedule property and the land situated towards the compound wall is in his possession. Since the said compound collapsed, he wanted to erect a new compound, at that time the plaintiffs filed the suit.
3. The trial Court has observed that the materials placed before it disclose an attempt being made by the defendant to build a compound wall by encroaching upon the plaintiffs’ property.
4. On going through the impugned order and also the other materials, it is quite clear that the plaintiffs’ property and the defendant’s property are situated adjacent to each other. If the plaintiffs complain about the encroachment by the defendant the latter claims a right of way over the plaintiffs’ property. It is a matter to be adjudicated. The suit is for possession. In case the suit is decreed, plaintiffs must be able to take possession of the encroached property and for this reason the defendant is not expected to make any construction in the encroached portion. I think that the trial Court has come to a right conclusion. But, if the defendant is using the encroached portion as a right of way, his right also should not be impaired till the trial Court takes a decision after recording the evidence. In these circumstances the order impugned needs to be modified. Hence the following:
ORDER The appeal is allowed with a modification that the plaintiffs and defendant should maintain status-quo of the vacant nature of the plaint ‘B’ schedule property till disposal of the suit.
Sd/- JUDGE KMV/-