IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.6320/2019(CPC) BETWEEN:
1. Sri Mahesh M N Aged about 41 years S/o Late Narasimhamurthy R/at 3rd Cross, Mallasandra Near Ashwathkatte T.Dasarahalli Post Bengaluru – 560 057 2. Sri Nagabushana K Aged about 45 years S/o Late Kamalappa R/at No.107, 5th Main Road Mallasandra T.Dasarahalli Post Bengaluru – 560 057 3. Sri Manjunath K Aged about 36 years S/o Late Kamalappa R/at No.107, 5th Main Road Mallasandra T.Dasarahalli Post Bengaluru – 560 057 4. Sri Maruthi K Aged about 33 years S/o Late Kamalappa R/at No.107, 5th Main Road Mallasandra T.Dasarahalli Post Bengaluru – 560 057 (By Sri K.Vijay Kumar, Advocate) AND:
1. Smt. Lakshmidevamma Aged about 48 years D/o Late Muniyappa 2. Sri Murthy M Aged about 48 years S/o Late Muniyappa 3. Sri Ramakrishna M Aged about 43 years S/o Late Muniyappa 4. Sri Narayana M Aged about 37 years S/o Late Muniyappa All are R/at 7th Cross (old 3rd Cross) Krishnandha Road Pipeline Road Near Reliance Fresh Mallasandra T.Dasarahalli Post Bengaluru – 560 057 (By Sri S.K.Shivashankar, Advocate) …Appellants ... Respondents This MFA is filed under Order XLIII Rule 1(r) of CPC, against the order dated 15.07.2019 passed on I.A.No.3 in O.S.No.3602/2019 on the file of the XXXIV Additional City Civil and Sessions Judge, Bengaluru, dismissing the application No.3 filed under Order 39 Rules 1 & 2 read with Section 151 of CPC.
This MFA coming on for admission this day, the Court delivered the following:
JUDGMENT The plaintiffs have filed this appeal challenging the order on I.A.3 filed under Order 39 Rules 1 and 2 CPC.
2. The plaintiffs’ suit is for permanent injunction to restrain the defendants from interfering with their peaceful possession and enjoyment of agricultural property bearing Sy.no.37/5 situated at Mallasandra Village, T.Dasarahalli, Yeshwanthapura Hobli, Bangalore North Taluk. Along with the plaint they also made an application for injunction. It is stated by the plaintiffs that the defendants have no manner of right, title or interest in the suit property and tried to encroach upon their land by putting up a construction. The defense of the defendants is that their property is situated in a land which was acquired on behalf of Malleshwaram Tailoring Co- operative Society in the year 1980. The acquisition was in respect of land bearing Sy.No.38/1 measuring 1-00 acre. The defendants disputes the identity of the suit property.
3. The trial Court has refused to grant an order of injunction by assigning reasons that the plaintiffs are not sure as to where exactly their property is situated and that they have not stated as to how much of land was encroached by the defendants and from which side. The contents of the plaint are vague. The plaintiffs themselves have applied for survey for demarcation of the property and this shows that the plaintiffs themselves are not sure about the location of their property.
4. Heard both sides.
5. On perusal of the impugned order I donot find any infirmity in it. Whenever a plaintiff alleges encroachment or attempt to encroach, the plaint must clearly disclose as to on which direction there is encroachment. If on plain reading of the plaint it can be said that the plaintiffs themselves are not sure about the identification of their property, injunction cannot be granted.
6. Learned counsel for the appellants submits that whenever identity of the property is disputed, an order of status-quo can be ordered and he relies upon a judgment of this Court in MFA No.4794/2012 and connected MFA No.4796/2012 in support of his argument.
7. I do not dispute the preposition that status- quo can be ordered to be maintained when identity is disputed. But in this case, the plaintiffs plea itself indicates that they are not sure about the location and identity of their property. When they themselves have made an application for getting the land surveyed, even status-quo cannot be granted. I do not find any merit in this appeal. Therefore appeal is dismissed.
8. Plaintiffs are at liberty to apply for amendment of plaint after obtaining survey report.
Sd/- JUDGE SD/KMV