IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.3562 OF 2019(CPC) BETWEEN Kishore Kumar H. Shah, S/o. Late Hiralal P. Shah, Aged about 59 years, R/at Site No.45 & 46, Situated at Srigandada Kaval, Yeshwanthapura Hobli, Bengaluru North Taluk-560022.
Also at No.105/1, 1st Main Road, Seshadripuram, Bangalore-560020.
(By Sri. S.Rajashekar, Advocate) AND Mr. P.Mudialba @ Peter Mudialba, S/o. E.K.Peter, Aged about 62 years, R/at No.314, 7th Main Road, 80 feet Road, H.R.B.R.Layout, 1st Stage, Kalyan Nagar, Bengaluru-560043.
(By Sri.R. Padmanabha, Advocate) …Appellant …Respondent This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 20.04.2019 passed on I.A.No.1 & 2 in O.S.No.1983/2019 on the file of the LII Additional City Civil & Sessions Judge, Bengaluru City (CCH-53), rejecting I.A.No.1 filed under Order 39 Rule 1 & 2 of CPC, allowing I.A. No.2 filed under Order 39 Rule 4 of CPC.
This MFA coming on for admission, this day, the Court delivered the following :
JUDGMENT This appeal is filed by the plaintiff in O.S.No.1983/2019. Suit is for permanent injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of property bearing sites no. 45 and 46 formed in survey no. 47 measuring 2.2 guntas (60 x 40 ft.) situated at Srigandada Kaval, Yeshwanthapur Hobli, Bangalore North Taluk. The plaintiff also filed an application under Order 39 Rules 1 and 2 CPC seeking an order of temporary injunction against the defendant pending disposal of the suit. The said application was rejected and the defendant’s application I.A.2 filed under Order 39 Rule 4 CPC was allowed and the exparte injunction earlier granted was vacated. Hence this appeal by the plaintiff.
2. Heard the appellant’s counsel and the respondent’s counsel.
3. The plaintiff’s case is that the land in survey no.47 of Srigandada village, Yeshwanthapur Hobli, Bangalore North Taluk formerly belonged to one Smt. Putta Honamma. She made a layout in the said land and sold site nos.45 and 46 to the plaintiff. The plaintiff has stated that the revenue records stand in his name. The defendant without having no manner of right, title or interest tried to interfere with his possession. He made a complaint to the police on 06.04.2007 and the police summoned the defendant and asked the defendant not to create any problem. But on 28.02.2019, the defendant made a complaint to the police against the plaintiff and the police summoned him to the station where his statement is said to have been recorded. Thereafter the police issued an endorsement stating that the dispute was of civil in nature. This being the state of affairs, once again the defendant tried to trespass over the plaintiff’s property and therefore he made a complaint again on 06.03.2019. The property is vacant. The defendant is trying to take undue advantage of the same and trying to interfere with his possession.
4. The defendant’s case is that he is in possession of the property bearing no. 1217/1212 measuring to an extent of *60 x 80 ft. situated at Srigandadakaval. His property is totally different from the plaintiff’s property. The plaintiff was not at all in possession of the suit schedule property or the property of the defendant, and therefore allegation of interference by him with the plaintiff’s possession is baseless. When the plaintiff is not in possession, granting injunction would not arise.
5. The trial court considering the materials placed before it has recorded findings that the plaintiff has not stated from which direction the defendant is trying to encroach upon his property; that the plaintiff himself is not definite about the identity or measurement of the suit property; that except making allegations against the defendant, the plaintiff has not produced any document to * corrected vide court order dated 30.7.2019 show that he was in possession of the suit property since the year 1981. It is also held that though the plaintiff asserts to have purchased the property in the year 1981, inspite of lapse of 38 years, the plaintiff has not put up any fence or compound wall to protect his property. Though there was interference as stated by the plaintiff in the year 2007, he did not take steps immediately by filing a suit and he kept quite till 2019. Therefore prima facie case is not made out for granting injunction.
6. On 19.06.2019, when this case was posted before this court, finding that the plaintiff and the defendant may be laying claim on the very same property and having regard to defendant’s contention that earlier there was a building belonging to a Church, it was felt necessary that a commissioner should be appointed as per Order 39 Rule 7 of CPC. Commissioner was appointed. He has given report.
7. The report of the commissioner is that when he inspected the disputed site it was identified by both the parties, but he did not find any construction activity or existence of building in the disputed site. He has stated that the disputed site looked like loose fresh soil being filled up recently. He also did not find traces of demolition of building over the disputed site. The commissioner was also taken to a nearby place by the appellant’s counsel. There he saw a big building bearing a board Peter A.G. Church. He did not find any building with no.1217/1212 in both the places. Therefore the commissioner’s report is to the effect the disputed site is a vacant one.
8. If the findings of the trial court are pursued, I do not find any infirmity in the reasons given by it. If the plaintiff claims to be in possession, he should place materials before the court that he was in possession on the date of the suit. The trial court has come to conclusion that the materials produced by the plaintiff are not sufficient to identify his property. Moreover on *13.09.2013 itself, the plaintiff issued a legal notice to the defendant. This notice was produced before the trial court. This notice very clearly shows that the plaintiff lost possession of site nos. 45 and 46 and therefore he called upon the defendant to remove the * corrected vide court order dated 30.7.2019 illegal constructions erected on the property and hand over its possession. This shows that very long back the plaintiff lost his possession. Prima facie it shows that the plaintiff was not in possession on the date of suit. This being the position, the plaintiff should have filed a suit for declaration and possession. In this light I come to conclusion that the trial court has not committed any error in vacating the order of temporary injunction. Appeal is devoid of merits. It is dismissed.
Sd/- JUDGE sd