IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR M.F.A.No.9769/2018 (CPC) BETWEEN:
SRI H. RAGHAVENDRA, S/O LATE H. SRINIVASA RAO @ BABU, AGED 49 YEARS, R/A No. 9, 1ST FLOOR, SREE RAGHAVENDRA NILAYA, SHRADDANANDA BHAVAN, CROSS ROAD, VISHVESHWARAPURA, BENGALURU – 560 004. … APPELLANT (By Sri K.N.Nitish, Adv.) AND:
1. H. GANESH, S/O LATE H. SRINIVASA RAO @ BABU, R/A No. 9, SREE RAGHAVENDRA NILAYA, SHRADDANANDA BHAVAN CROSS ROAD, VISHVESHWARAPURA BENGALURU – 560 004.
2. THE COMMISSIONER , BRUHATH BENGALURU MAHANAGARA PALIKE, N. R. SQUARE, HUDSON CIRCLE, BENGALURU – 560 002.
3. THE ASSISTANT REVENUE OFFICER, KEMPEGOWDANAGARA SUB DIVISION, BRUHATH BENGALURU MAHANAGARA PALIKE 1ST FLOOR, BBMP BUILDING, J. C. ROAD, BENGALURU – 560 004. … RESPONDENTS (By Sri S.N.Bhat, Adv. for C/R1) This appeal is filed under Order 43 Rule 1(r) CPC against the order dated 22.10.2018 passed on I.A.No.3 in O.S.No.5039/2017 on the file of the 39 Additional City Civil and Sessions Judge, Bengaluru, dismissing I.A.No.3 filed by the plaintiff under Order 39 Rules 1 & 2 CPC.
This appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT Plaintiff in O.S.No.5039/2017 on the file of the XXXIX Additional City Civil and Sessions Judge, Bengaluru, has preferred this appeal being aggrieved by the order dated 22.10.2018 on I.A.No.3 filed under Order XXXIX Rules 1 & 2 CPC.
2. Heard the appellant’s counsel and the respondent’s counsel.
3. The suit is for declaration of title and possession. Both the plaintiff and the 1st defendant rely upon a Will said to have been executed by their father. Plaintiff claims that his father executed a Will on 16.09.2011 bequeathing entire property including ground and first floor in his favour and that the 1st defendant also relies upon a Will dated 07.01.2016 said to have been executed by his father. According to defendant’s Will, the first floor portion is bequeathed to the plaintiff and the ground floor portion is bequeathed to defendant. Since two Wills are projected, the Trial Court has to decide as to which of the two Wills will prevail. But the controversy is with regard to constructing of staircase providing access to first floor. Plaintiff has complained that when he started repairing the staircase, the defendant interfered and therefore, along with plaint, he made an application seeking temporary injunction to restrain the defendant from causing obstruction to repair work of the staircase. The defendant’s case is that there did not exist the staircase at all and that the staircase is being constructed blocking the passage. The Trial Court has dismissed the application giving reason that the plaintiff has not properly explained as to how his right has been affected and that it appears that plaintiff has suppressed material facts.
4. If there is a house in the first floor, it should have an access and therefore, staircase must be present. In this view, defendant’s stand that there did not exist staircase and that the plaintiff is putting up new construction is difficult to be believed at this stage. If according to the plaintiff, the staircase requires repairs, plaintiff has to attend to it and therefore, the defendant cannot object to it just because plaintiff has filed a suit seeking declaration of title. If the parties are in possession of two separate houses situated in the ground and first floor, they have to enjoy their possession till the disposal of the suit. For this reason, if, according to plaintiff, staircase requires repairs, defendant cannot object to it. However, plaintiff cannot block the passage affecting the defendant’s interest also. Having regard to these circumstances, I am of the opinion that the Trial Court has arrived at a wrong conclusion in denying the temporary injunction. Hence, the following:
ORDER Appeal is allowed. I.A.No.3 filed by the plaintiff is allowed. Defendant is hereby restrained from causing obstruction for construction of staircase providing access to the first floor. However, the plaintiff cannot block the passage and cause any obstruction to defendant’s enjoyment of the ground floor.
Sd/-
JUDGE PKS