Smt. R. Geethamani vs Sri Chandraiah

A.N. Venugopala Gowda, J.—This appeal is by the Plaintiff questioning an order passed on I.A.1, filed under 0.39 Rs. 1 and 2 CPC seeking an order of temporary injunction, i.e. to restrain the Defendant/Respondent from interfering with her possession and enjoyment of the suit property. The Trial Court dismissed the application.

Heard the learned Counsel on both sides and perused the record.

The Respondent/Defendant owned an extent of 38 guntas of land in Sy. No. 25 of Vaddarayapalya village, Uttarahalli Hobli, Bangalore South Taluk. The land in Sy.No. 25 was acquired for the benefit of Poornaprajna House Co-operative Society Limited. The said society has formed a layout of sites in the said land and the adjoining lands acquired for its benefit. Site No. 639 in the layout was allotted and conveyed by the society to its member one Smt. Gowramma, who sold the same to one Sri M.S. Srinatha on 10.1.2007, from whom the Plaintiff/Appellant purchased on 21.12.2009. The Plaintiff commenced construction of residential building on the suit property after its purchase on 21.12.2009 from M.S. Srinatha. The Respondent/Defendant interfered with the construction work on the ground that, he has filed W.P. 10543/2008 questioning the acquisition of land in the said Sy. No. to an extent of 38 guntas which belongs to him and that, there is an interim order in his favour. The suit and I.A.1 was opposed by the Defendant. According to the Defendant, the suit property forms part and parcel of 38 guntas of land which belongs to him being part of Sy. No. 25.

The Trial Court, noticing the fact that there is No. document produced showing in which part of Sy. No. 25. 38 guntas of land of the Defendant was situated and also the pendency of W.P.10543/2008 filed by the Defendant, wherein interim order was passed on 15.7.2009 directing maintenance of status quo in terms of the order passed in W.P.8139-41/2009/ dated 1.7.2009, holding that, the Plaintiff has failed to make out prima facie case, passed the impugned order.

Indisputably, W.P.10543/2008 was dismissed by an order dated 16.6.2011 and as a result, the interim order passed earlier, merged with the final order and ceased to be in force w.e.f. 16.6.2011. The Plaintiff has produced a letter dated 9.4.2011 of Poornaprajha House Building Co-operative Society along with a private surveyor''s sketch. According to the said communication, site No. 639 fails within the property, which belonged to one Smt. Doddamariamma, who held 36 guntas of land prior to the acquisition in its favour. Respondent has not filed any objections to the said communication and the enclosure. Be that as it may.

Appellant filed an affidavit placing on record the subsequent event i.e., dismissal of W.P.10543/2008 vide order dated 16.6.2011 and the fact of part construction having been made on the suit property and if the same is not completed, irreparable loss and injury being caused to; her. She has sought for passing of temporary injunction as prayed in the suit and has given an undertaking that, in the event it being held that, the suit property forms part of 38 guntas in Sy. No. 25 which the Defendant claims as belonging to him and the acquisition being quashed, she has undertaken not to claim any equity in respect of the construction put up or may be put up on the suit property.

Noticing the said events, Sri Sanket Yenagi, learned Counsel appearing for the Respondent/Defendant, submitted that, the Appellant/Plaintiff may proceed with the construction subject to the orders that may be passed in the writ appeal which may be filed by the Respondent, questioning the order dated 16.6.2011 passed in W.P. 10543/2008 i.e., by making clear that the construction shall be at her risk and by placing the affidavit of the Appellant on record and with a condition that she shall not claim any equity in case the Respondent succeeds in the writ appeal which may be filed by him.

Keeping in view the facts noticed supra, the event which has taken place after passing of the impugned order, in my opinion, the Appellant should be permitted to proceed with the construction work undertaken by her on the suit property at her risk and the construction being made subject to the result of the suit, wherein she will have to establish her lawful possession and peaceful enjoyment of the suit schedule property. The writ petition having been dismissed, the Respondent /Defendant has No. right to resist the construction work of the Plaintiff.

In the result, the appeal stands disposed of. The impugned order is modified. The Appellant is at liberty to proceed with the construction work on the suit property, which shall not be interfered with by the Respondent. However, any construction made on the suit property shall be subject to the final result of the suit or the interim/final order that may be passed in the writ appeal which the Respondent may prefer questioning the order dated 16.6.20-11 passed in W.P. 10543/2008.

The affidavit filed by the Appellant is placed on record.

In case, the Respondent/Defendant succeeds in the matter, the Appellant/Plaintiff shall not be entitled to claim any equity on account of construction of building on the suit property.

In the circumstances of the case, parties to bear their respective costs.

Ordered accordingly.