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2024 DIGILAW 23 (KAR)

Nasreen Afzal v. Elyas Ahmed

2024-01-09

H.P.SANDESH

body2024
JUDGMENT H.P. Sandesh, J. Heard learned counsel appearing for appellant and also the counsel appearing for respondent. 2. This appeal is filed being aggrieved by the order passed on I.A.No.1 in O.S.No.592/2022, wherein prayer was made to restrain defendant or his henchmen from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The Trial Court partly allowed the application and directed the defendant not to put up any construction. 3. The factual matrix of the case of the plaintiff is that while seeking relief of temporary injunction, it is contended that he is the absolute owner and is in possession of the suit schedule property bearing House List No.14, V.P. Khata No.297/A/14, Byatarayanapura CMC Khatha No.1250, situated at Hennur Village, Kasaba Hobli, Bangalore North Taluk, Bangalore measuring East-West on Northern side 60 feet, on southern side 57 feet and North-south 40 feet, totally 2340 sq.ft, which she has purchased from its erstwhile owner, under register sale deed dated 07.09.2006. It is also contended that she is in peaceful possession and enjoyment of the suit schedule property. The defendant who is utter stranger started interfering with the suit schedule property. She resisted the defendant's illegal act and the defendant did not care to stop his interference and she informed the same to jurisdictional police and the police did not care to take any action against them. Hence, she filed a suit seeking permanent injunction and sought for interlia temporary injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the property. 4. The defendant appeared and filed a written statement contending that the plaintiff does not have any right title over the property and defendant is in possession of suit schedule property. The defendant by virtue of his ownership acquired by him by way of registered sale deed dated 04.09.2021 measuring East-West 30 feet, North-South 40 feet totally measuring about 1200 sq.ft. together with one square A.C. sheed roofed house constructed with cement and brick re oxide flooring with jungle wood doors and windows. The defendant also contends that he got electric connection and in order to substantiate fact of possession, occupation and enjoyment of the property, which has been purchased by him Sy.No.102/01 relied upon the electric connection and payment receipts. The defendant claims that he is in possession of the property. The defendant also contends that he got electric connection and in order to substantiate fact of possession, occupation and enjoyment of the property, which has been purchased by him Sy.No.102/01 relied upon the electric connection and payment receipts. The defendant claims that he is in possession of the property. The allegations made in the plaint is that he entered upon the suit schedule property belonging to the plaintiff and removed an electricity connection is erroneous. The Trial Court taking note of the pleadings of the both the parties formulated the points whether there is prima-facie case, balance of convenience and hardship to grant the relief. Taking into material on record Trial Court comes to the conclusion that having considered the documents and analyzing the contentions made by both the parties, it is crystal clear that, at present the plaintiff and defendants both are in possession of the plaint schedule property and both have documents to show that they are the owners. This Court cannot come to the conclusion that who is the owner of the property because this case is filed for seeking injunction and this Court has to evaluate the suit as per merits of the case depending upon cogent evidence and proved documents. The Trial Court considered the material on record, partly allowed the application and directed the defendant not to construct or make any structure in the suit schedule property from the date of this order till the disposal of the suit. Being aggrieved by the order, the present appeal is filed. 5. Learned counsel for the appellant vehemently contends that the Trial Court committed an error in partly allowing the same and not granting the relief of injunction as sought for in the application and the Trial Court ought to have granted relief in respect of the suit schedule property in terms of the interlocutory application. The counsel vehemently contends that when the Trial Court observed that both the appellant and the respondent are in possession and also both of them are claiming title in respect of the same property, committed an error in partly allowing the application. The counsel vehemently contends that when the Trial Court observed that both the appellant and the respondent are in possession and also both of them are claiming title in respect of the same property, committed an error in partly allowing the application. Only document that was produced by the respondent, in order to show that he was in possession of the suit schedule property was an Electricity Bill and a Electricity Connection in his name, the manner in which the same was provided to the respondent has been challenged by the appellant herein through various representation addressed to the BESCOM department. Hence, the application needs to be allowed, granting relief and restraining the defendant from interfering with the possession of the suit schedule property as sought in the I.A. 6. Per contra, learned counsel for respondent vehemently contends that the defendant has also produced the sale deed and he has purchased the site carved out of Sy.No.102/01 and also produced the document of electricity to show that he has constructed the building and obtained electricity connection from BESCOM, which discloses that the defendant is in possession of the suit schedule property. Hence the Trial Court committed an error in coming to the conclusion that the defendant shall not put up any construction and not granting temporary injunction as sought. Counsel also contends that the Trial Court has taken note that the defendant is in possession and it does not require any interference. 7. Having heard both the counsel, it is in not dispute that the plaintiff had purchased the property in the year 2006. Wherein the sale deed itself mentioned the property as House List No.14, V.P.Khata No.297/A/14, Byatarayanapura CMC Khata No.1250, the plaintiff claims the title to the extent of East-west on Northern side 60 feet, on southern side 57 feet and North-south 40 feet, totally measuring 2340 sq.ft. and the defendant claims based on the sale deed regarding the site carved in Sy.No.102/01. The sale deed of the defendant mentioned the property as new site No.9, (Western Portion of Site No's 9 & 10 )BBMP Khata No.24/529 /102/1 situated at 38th cross, 19th main road, Hennur. Bangalore-560043 and previously it was portion of property bearing Sy.No.102/1. Having considered the same, particularly in respect of defendant's property out of Sy.No.102/1, the site is carved out of the said property. Bangalore-560043 and previously it was portion of property bearing Sy.No.102/1. Having considered the same, particularly in respect of defendant's property out of Sy.No.102/1, the site is carved out of the said property. The defendant claims, it is a property of the village panchayat in terms of the sale deed and also there is a dispute with regard to the property. Both are claming title over the same property, as they are having the documents regarding their claim and the same is taken note of by the Trial Court while considering the I.A. In page No.11 of the order, it is taken note of that at present both are in possession of the suit schedule property and both have documents to show that, they are the owners. I have already pointed out that extent mentioned in the sale deed of the plaintiff is to the extent of 2340 sq.ft. and the defendants is to the extent of 1200 sq.ft. i.e. 30x40 with electricity connection. It is also brought to the notice of this Court by the respondent counsel that the very appellant pleaded in the appeal memo, particularly in para 12 that the defendant entered upon the property and with influence and high handedness removed the appellant's electricity meter and got a new electricity meter installed in his own name. It is also pleaded that the appellant is still continuing to make payments on the said electricity meter even though the said meter has been illegally taken away from the schedule property by the respondent. Having taken note of this pleading, it is crystal clear that the defendant has also taken the electricity connection and it is also contended that the defendant removed the electricity connection of the appellant. Hence, it is clear that total extent of the land claimed by the plaintiff to the extent of 2340 sq.ft. and the defendant claim is to the extent of 1200 sq.ft. and both of them claim to have got electricity connection. So the matter requires to be decided in a Trial, as to who is having the right in respect of the property. It is also important to note that the suit is filed for bare injunction and not for the comprehensive suit of declaration, since both of them are claiming right over the property. So the matter requires to be decided in a Trial, as to who is having the right in respect of the property. It is also important to note that the suit is filed for bare injunction and not for the comprehensive suit of declaration, since both of them are claiming right over the property. Such being the case, the Trial Court rightly took note of the pleadings and documents, which have been placed by the plaintiff and the defendant and observed that both of them are in possession and also I do not find any error committed by the Trial Court, since the claim of the plaintiff is to the extent of 2340 sq.ft and the defendant is 1200 sq.ft. When such finding is given, Trial Court rightly moulded the relief sought for in the I.A. and directed the defendant not to put up any construction and considered that both of them are having right in respect of the suit schedule property, since the defendant also claims the right over the property as claimed. Hence, I do not find any error committed by the Trial Court in passing the said Order, moulding the relief sought for in the I.A. and granting relief not to interfere with the same, since the plaintiff also pleaded that the defendant entered upon the property of the plaintiff and removed the electricity connection and he got new electricity connection. Hence, no error is found in the order of the Trial Court having considered the rival contentions of the plaintiff and defendant in respect of the very same property, though the description of the property differs from the claim made by the plaintiff and defendant. Hence, there is no merit in the appeal. In view of the discussions made above, I pass the following order: ORDER The Miscellaneous First Appeal is dismissed.