Nagendra Bhatta vs Ramakrishna Tunga

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 20.08.2013 passed on IA No. 1 in OS No. 168/2012 and judgment dated 18.07.2014 passed in MA No. 20/2013.

The respondents have entered caveat. In that view, I have heard the learned Counsel for the parties and perused the petition papers.

The respondents herein have instituted the suit in OS No. 168/2012 seeking for a Judgment and decree of declaration that suit schedule ''B'' property is part and parcel of schedule ''A'' property which has been purchased by the plaintiffs. Further, the plaintiffs have sought for recovery and possession of the suit schedule ''B'' property in the said suit. The plaintiffs have also filed an application under Order 39 Rule 1 and 2 r/w Section 151 of Civil Procedure Code which was considered by the Court below and by order dated 20.08.2013, the temporary injunction was granted restraining the defendant from alienating ''C'' schedule property. The defendant claiming to be aggrieved by the same was before the Lower Appellate Court in MA No. 20/2013. The Lower Appellate Court after considering the matter has affirmed the order of the trial Court and has dismissed the appeal. Against such concurrent order and judgment, the petitioner is before this Court.

Normally, when the concurrent order and Judgments are passed by the Courts below, this Court would be slow to interfere with the order unless, it becomes absolutely necessary. In the instant case, the very nature of the pleading that has been putforth by the plaintiffs would indicate that there is no challenge to the title of the defendant to an extent of 2 acres 33 guntas in Survey No. 42/1 of Shankarapura Village, Agrahara Hobli, Thirthahalli Taluk. The claim of the plaintiffs is that, despite defendant having right only to an extent of 2 acres 33 guntas in the said property, the plaintiffs have encroached an extent of 5 guntas in the land belonging to the defendant, which is described in ''A'' schedule property and as such, the defendant is falsely claiming right over the property to an extent of 2 acres 38 guntas.

A perusal of the plaint would disclose that the plaintiffs have bifurcated the area which is the subject matter of the suit to indicate an extent of 5 guntas over which there is dispute as schedule ''B'' property and the prayer made in the plaint is for declaration and possession of schedule ''B'' property which measures 5 guntas in Survey No. 42/1. Therefore, ultimate consideration to be made by the trial Court in the suit is, as to whether the said 5 guntas of land which is the subject matter of the suit falls in Survey No. 42/1 as claimed by the defendant or in Survey No. 42/2 as claimed by the plaintiffs.

The other issues are with regard to entitlement of more than one acre which is said to have been purchased by the plaintiffs. These are issues which call for consideration based on the evidence that would be tendered before the Court below. At this juncture, all that arises for consideration is the nature of the interim order that ought to have been granted by the Courts below to protect the interest of the plaintiffs keeping in view the nature of the case that had been putforth.

In that light, a perusal of the order passed by the trial Court as well as the Judgment passed by the Lower Appellate Court would indicate that on consideration of this aspect, restraint against alienation has been granted. However, by the present order non alienation of the ''C'' schedule property has been granted as prayed in the application. If such injunction against alienation is granted, the defendant would be restrained from enjoying even the portion of 2 acres 33 guntas to which the plaintiffs does not make any grievance in the suit and no relief is sought in the suit. Hence, the said injunction would have to be made equitable without effecting the right to the undisputed portion of the property.

Therefore, the only aspect which requires consideration herein is the correctness or otherwise of the orders passed by the Courts below. In that view the order of injunction as granted is upheld, but the same stands modified holding that the injunction will operate as against ''B'' schedule property indicated in the plaint i.e., to an extent of 5 guntas which is stated to be in possession of the defendant abutting the property of the plaintiffs. The said injunction shall operate during the pendency of the suit and the rights of the parties would be determined on evidence without being influenced by the order passed by this Court or by the Courts below at the interlocutory stage.

In terms of the above, the writ petition stands disposed of.