B.RAMAIAH Vs. G.K.DEEPIKA

JUDGEMENT

(1.) These two appeals are filed against the order passed on I.A.No.1 and 2, i.e. the applications filed under Order 39 Rule 1 and 2 and under Order 39 Rule 4 read with Sec. 151 of CPC seeking vacation of the interim order granted earlier.

(2.) Factual matrix of the case is that the plaintiff while seeking relief of permanent injunction on OS No.4499/2021 contended that the plaintiff is the absolute owner of the property bearing Nos.5 and 10 carved out of Sy.No.42 of Nagarabhavi village, Yeshwanthapura Hobli, Bengaluru North Taluk. The said property originally belonging to Sri.Sanjeevappa. The said Sri.Sanjeevappa had sold the property to Sri.B.V.Lakshminarayana vide sale deed dtd. 30/10/1980 and the said property was further gifted in favour of his son Sri.B.L.Keshava Kumar vide gift deed dtd. 15/12/2011. The said Sri.B.L.Keshava Kumar has sold the property to the plaintiff vide registered sale deed dtd. 24/2/2016. The plaintiff while seeking relief of permanent injunction filed an application interalia seeking relief of temporary injunction contending that the plaintiff is in peaceful possession and enjoyment of the suit schedule property as absolute owner. As regard the property bearing Nos.4 and 11, which are situated adjoining to his property is belonging to the defendant and the defendant encroached upon his property to the extent of 3 feet. Defendant has got complete disregard to the right of plaintiff. The counsel for plaintiff contends that the plaintiff has got prima facie case for grant of injunction order and there is balance of convenience in favor of the plaintiff and if the order of injunction is not granted, the plaintiff would be put to irreparable harm.

(3.) The defendant has not filed any separate objections, but has filed only a written statement and prayed the court to adopt his written statement as objections to I.A.No.1. The main contention of the defendant in the written statement is that father of the defendant namely Sri.V.Krishna Reddy filed suit in OS No.6836/2006 for permanent injunction against the plaintiff and another before CCH-13. One Krishna had filed OS No.3174/2006 against the vendor of the plaintiff and others praying for the relief of enforcement of contract in respect of the said property bearing Nos.4 and 11. The suit bearing OS No.6836/2006 came to be decreed vide judgment dtd. 16/9/2008. The decree in OS No.6836/2006 was not challenged by the plaintiff and it has attained finality. The plaintiff has nothing to do with the defendant's property. The suit bearing OS No.3174/2006 came to be dismissed. One Sri.Krishna Reddy had preferred RFA No.1884/2011 before this Court. The father of the defendant Sri.Krishna Reddy has also preferred RFA Crob No.10/1012. The vendor Smt.Manjula also preferred RFA Crob No.11/2012 against the Krishna and others. This Court clubbed all the appeals and passed a common order. The appeal preferred by the Krishna came to be dismissed on 1/2/2021 by confirming the judgment and decree passed in OS No.3174/2006. Being aggrieved by the said order Krishna has filed special leave appeal No.8277/2021 before Hon'ble Supreme Court of India and the same was also dismissed. Plaintiff purchased the suit 'A' schedule property from Sri.Keshav Kumar during the pendency of the above proceedings on 24/2/2016. The plantiff does not have any right with respect to the property belonging to the defendant. Subsequent to the purchase of the property, the father of the defendant namely Sri.V.Krishna Reddy erected a compound wall and got perfected his right and title over the property in question since 9/3/2006 by continuous and uninterrupted possession over the purchased property. During the pendency of the RFA No.1884/2011, father of the defendant died. The defendants and other has succeeded to the estate of late Sri.V.Krishna Reddy. It is contended that Sri.V.Krishna Reddy had erected the compound wall without making any encroachment over the property of the plaintiff and the judgment and decree in OS No.6836/2006 is binding upon the plaintiff. The counsel contends that the defendant has already got judgment and decree in his favour, so the question of granting any relief does not arise. The Trial Court having considered the points, Whether the plaintiff has made out prima facie case? Whether there is any balance of convenience lies in his favour? Whether any irreparable harm would be caused to the plaintiff? Whether the defendant made out a case to allow I.A.No.2 to vacate the interim order? The Trial Court having consider the pleadings of the both the counsels and also on perusal of the material on record, dismissed the application filed by the plaintiff and allowed the application filed by the defendant and vacated the interim order.