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2020 DIGILAW 1882 (KAR)

B. C. Ramachandra Reddy v. Munivenkatamma

2020-09-29

N.S.SANJAY GOWDA

body2020
JUDGMENT N.S.Sanjay Gowda, J. - This is a writ petition filed by defendant Nos.6 to 8 challenging the grant of an injunction by the Trial Court which has since been affirmed by the Appellate Court. 2. The suit was filed seeking for a declaration that the plaintiff and defendant Nos.1 to 3 had succeeded to the rights of Muniyappa @ Muni Reddy and Nanjappa @ Nanjappa Reddy and thereby had become absolute owners. The plaintiff also sought for a direction to defendant Nos.6 to 8 to demolish the illegal and unauthorized construction made over 'A' schedule suit property and deliver vacant possession of both 'A' schedule suit property to the plaintiff and defendant Nos.1 to 3. A prayer was also made to direct defendant Nos.10 and 11 to deliver vacant possession of suit schedule property to the plaintiff and defendant Nos.1 to 3. Thus, in other words, the suit essentially was one for a declaration, mandatory injunction and for possession. 3. The Trial Court on consideration of the materials placed before it, came to the conclusion that an injunction was necessary to be granted to restrain the defendant Nos.6 to 8 from alienating or creating any encumbrance in or over the suit schedule property either by themselves or through any one acting on their behalf. It also took the view that defendant Nos.6 to 8 should be restrained from altering the nature of the property or putting up of any construction in or over the suit schedule property. 4. Being aggrieved, defendant Nos.6 to 8 preferred an appeal. However, the Appellate Court chose to dismiss the appeal and thereby confirmed the order of injunction. 5. Today learned counsel for defendant Nos.6 to 8 submits that the defendant Nos.6 to 8 have no intention of alienating or encumbering the property in any manner and that they are aggrieved fundamentally by the injunction granted by which they have been restrained from altering the nature of the properties. He submits that if they are permitted to proceed with the construction, they are prepared to file an undertaking that in the event plaintiff succeeds in the suit, they would demolish the building unconditionally and will not claim any equity. He submits that if they are permitted to proceed with the construction, they are prepared to file an undertaking that in the event plaintiff succeeds in the suit, they would demolish the building unconditionally and will not claim any equity. He submits that the further construction that they propose to put up may be made subject to the result of suit by recording their undertaking that they would demolish further construction in the event of the plaintiff succeeding in the suit. 6. Learned counsel for the plaintiff, on the other hand sought to support the impugned order and contended that there has been interim order in force for the past nine years and therefore, there is no justification for modifying the same at this stage. 7. It is not in dispute that the suit is for a declaration and for mandatory injunction to demolish an alleged illegal construction over 'A' schedule suit property and also for delivery of the vacant possession of 'B' schedule property from defendant Nos.6 to 8. Since, the plaintiff has admitted that the construction has already been put up and since they are seeking for delivery of vacant possession, in my view, the grant of injunction to restrain the defendants from putting up of any further construction may not be justified especially when learned counsel for defendant Nos.6 to 8 undertook to file an affidavit of undertaking that any further construction that defendant Nos.6 to 8 put up would always be subject to the result of suit and that they will not claim equity and demolish the further construction that they are put up unconditionally and at their own cost. 8. In my view, the order of the Trial Court in so far as it relates to restraining the defendants from alienating or encumbrancing the properties is just and proper and requires to be affirmed and is accordingly affirmed. 9. However, the injunction granted restraining the defendant Nos.6 to 8 from altering the nature of the property is modified and it is hereby ordered that defendant Nos.6 to 8 shall be permitted to put up further construction subject to defendant Nos.6 to 8 filing an undertaking that they would voluntarily demolish and hand over the vacant possession of the 'B' schedule property at their own cost in the event of plaintiff succeeding in the suit. 10. 10. It is needless to state that if the second prayer of the plaintiff is granted, the alleged unauthorized construction over 'A' schedule suit property would have to be demolished. 11. I, therefore, modify the impugned orders to the extent above and hereby order that the defendant Nos.6 to 8 shall be permitted to put up further construction subject to the ultimate result of the suit and subject to the undertaking in the terms stated above being filed within a period of two weeks from today. The defendant Nos.6 to 8 shall also file photographs of the present existing structures on 'A' schedule property and also photographs of 'B' schedule property in order to have a record of the actual existing state of affairs as on today. 12. The suit is of the year 2005. It is case of the learned counsel for the defendant Nos.6 to 8 that the present plaintiff and defendant Nos.4 & 5 have already instituted a suit for partition in respect of item No.2 in O.S.No.163/1991 and in the said suit, despite a direction given by this Court to dispose of the suit, the said suit is not disposed. He submits that pendency of this case would cause further impediment in the ultimate adjudication of the rights of the parties and therefore, it is just and necessary for the Trial Court to dispose of the suit as expeditiously as possible. 13. I find merit in the argument of learned counsel for defendant Nos.6 to 8 and this submission of the learned counsel is also not opposed by the learned counsel for the plaintiff. I therefore direct the Civil Judge, Senior Division and J.M.F.C., Anekal to dispose of O.S.No.2056/2006 within a period of three months from the date of receipt of certified copy of this order. 14. This order is being passed having regard to the fact that the suit is more than 14 years old. The Trial Court shall make every possible endeavour to ensure that the suit is taken up on a day-to-day basis. Writ petition is disposed of accordingly.