K.V. KRISHNAJI RAO Vs. V. THUKARAMA RAO

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned counsel for the respondent.

(2.) This appeal is filed challenging the order dtd. 11/4/2022 passed on I.A.No.1 in O.S.No.4820/2021, on the file of the X Additional City Civil and Sessions Judge, Bangalore (CCH-25), rejecting the application filed under Order 39 Rules 1 and 2 of CPC. The plaintiff in the said application prayed the Court to grant an order of injunction in respect of 'D' schedule property and in the plaint described the total property as 'A' schedule property and 'B' schedule property belongs to the defendant and 'C' schedule property belongs to the plaintiff. He claims that there is a common passage of 5 feet and common well and common staircase in respect of 'B' schedule property and 'C' schedule property and the defendant is interfering and causing obstruction in usage of common staircase and hence prayed the Court to restrain the defendant from demolishing the common staircase by removing the sanitary lane in 'D' schedule property pending disposal of the suit.

(3.) The defendant appeared and filed the written statement contending that earlier there was a Will and subsequently the mother executed the gift deed and the plaintiff is also a beneficiary and party to the gift deed and having accepted the gift deed executed in the year 2013, he kept quite till 2021 and approached the Court by making false submission. It is particularly contended that in schedule 'C' on the southern side in an ingenious method he has shown 5 feet common passage, common well and common staircase and the same is not in terms of the gift deed executed in favour of the plaintiff and the defendant. The learned counsel submits that the Trial Court having considered the contention of both the parties, rightly comes to the conclusion that the matter requires to be adjudicated only after a detailed trial and at this stage of the proceedings it cannot be said that the plaintiff has made out any prima facie ground to seek suitable relief of temporary injunction and rejected the same. The learned counsel submits that the Trial Court considered both balance of convenience and irreparable loss and hardship.