IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA W.P.No.21833 & 39433/2016 c/w W.P.No.21832/2016 (GM – CPC) BETWEEN:
N.V.KRISHNAMURTHY S/O N.K.VENKATARAMANAIAH GOWDA AGED 58 YEARS, R/AT SOMAIAH LAYOUT SHIVAMOGGA CITY SHIVAMOGGA DISTRICT-577201 ... PETITIONER (COMMON) [BY SRI T.A.KARUMBAIAH, ADV.] AND:
1. T.C.THOMAS S/O THOMAS CHARU, 60 YEARS 2. LEKWIN THOMAS S/O T.C. THOMAS, 31 YEARS, BOTH ARE R/AT SOMAIAH LAYOUT SHIVAMOGGA CITY SHIVAMOGGA DISTRICT-577201 ..RESPONDENTS (COMMON) [BY SRI SHOWRI H.R., ADV.) THESE WRIT PETITION Nos.21833 & 39433/2016 ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANNEX-F THE ORDER DATED 18.01.2014 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC, SHIVAMOGGA ON I.A.II IN O.S.NO.725/2010 AND ALSO ANNEX-G THE ORDER DATED 05.03.2016 PASSED BY THE II ADDL. SR. CIVIL JUDGE SHIVAMOGGA IN M.A.NO.14/2014 AND ALLOW I.A.1 FILED BY THE PLAINTIFF UNDER ORDER 39 RULE 1 AND 2 CPC AS PRAYED FOR.
THIS WRIT PETITION No.21832/2016 IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANNEX-F THE ORDER DATED 18.01.2014 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC, SHIVAMOGGA ON I.A.I IN O.S.NO.725/2010 AND ALSO ANNEX-G THE ORDER DATED 05.03.2016 PASSED BY THE II ADDL. SR. CIVIL JUDGE SHIVAMOGGA IN M.A.NO.14/2014 AND ALLOW I.A.1 FILED BY THE PLAINTIFF UNDER ORDER 39 RULE 1 AND 2 CPC AS PRAYED FOR.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the order dated 5.3.2016 passed by the II Additional Senior Civil Judge, Shivamogga in M.A.No.14/2014 as well as the order dated 18.1.2014 passed by the I Addl. Civil Judge, Shivamogga on I.A.No.2 in O.S.No.725/2010.
2. The Plaintiff/petitioner is claiming to be the owner in possession and enjoyment of the RCC house bearing Municipal Katha No.933/621/469/10 measuring 24.6 feet x 27 feet and also Municipal Katha No.934/621/469/10 measuring 24.6 feet x 27 feet, in total measuring 49 feet x 27 feet, situated at Somaiah Layout, Ward No.11, Shivamogga.
3. It is contended that the said properties were purchased by the plaintiff from one Srinivsass Pai and Sudha Pai under the registered sale deed dated 25.11.2005 for valuable consideration and has renovated the house on the extreme northern side of the plaintiff’s property; The staircase measuring 3 feet in width and 10 feet in length is part and parcel of the property sold in favour of the petitioner. It is the grievance of the petitioner that the defendant having purchased the property on eastern side of the plaintiff’s property has constructed upstairs and second floor to his property without constructing the staircase, is making use of the staircase of the plaintiff. It is the further contention of the petitioner that the portico slab attached to ‘A’ schedule property measuring 3 feet x 3 feet in the second floor constructed by the defendant is causing damage to the building of the plaintiff. Accordingly, an order of temporary injunction was sought restraining the defendant from using the staircase and to remove the portico slab attached to ‘A’ schedule property. The Trial Court rejected I.A.Nos.1 and 2. Being aggrieved, appeals were preferred by the plaintiff in M.A.Nos.14/2014 and 15/2014 before the Lower Appellate Court which came to be dismissed. Hence, these writ petitions.
4. Learned counsel for the petitioner reiterating the grounds urged in the writ petitions would submit that both the courts below failed to appreciate the prima facie case in favour of the petitioner inasmuch as the right of use of the staircase by the defendant being illegal and the portico constructed by the defendant is damaging the plaintiff’s building and accordingly seeks for interference by this court.
5. It is not in dispute that there was a common ownership and on account of disposition there is cessation of ownership and both the parties are placing reliance on the recitals of the registered sale deeds obtained by them through the common vendor as regards the stair case is concerned. Considering the hardship that is causing by the portico slab attached to the ‘A’ schedule property measuring 3 feet x 3 feet in the second floor, the mandatory injunction sought by the plaintiff for removal of the said portico slab as well as usage of the stair case by the defendant certainly requires to be decided after conducting a full fledged trial. If the portico slab is permitted to be removed at this stage and if the plaintiff fails in the suit, it would be an irreversible situation infringing the rights of the defendants. Considering these aspects, both the courts below rejected the I.A.Nos.1 and 2 filed by the plaintiff which do not warrant any interference by this Court.
For the aforegoing reasons, writ petitions stand dismissed.
Sd/- JUDGE Dvr: