SRI.RAMESHA A H vs SRI.RAMAIAH
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 8 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 6250 OF 2026 (CPC)
BETWEEN:
SRI RAMESHA A.H.
S/O. HUCHAIAH
AGED ABOUT 42 YEARS
ST
R/AT NO. 18, 1 FLOOR
ST ST
1 MAIN, 1 CROSS
NEAR SANFORD PUBLIC SCHOOL
LAKSHMIDEVINAGAR
NANDINI LAYOUT
BANGALORE - 560 096.
…APPELLANT
(BY SRI G.M. SRINIVASA REDDY, ADVOCATE)
AND:
1. SRI RAMAIAH
AGED ABOUT 75 YEARS.
2. SMT. JAYALAKSHMI H.
W/O. SRI RAMAIAH
AGED ABOUT 65 YEARS.
2. SRI SANTHOSH R.
S/O. RAMAIAH
AGED ABOUT 35 YEARS
ALL ARE R/AT NO.526
TH
11 CROSS, NAGAPURA
ND
2 STAGE, WEST OF CHORD ROAD
MAHALAKSHMIPURAM
BANGALORE - 560 086.
…RESPONDENTS
(BY SRI S. SRINIVAS MURTHY, ADVOCATE FOR C/R1 TO C/R3)
Digitally
signed by
VINUTHA M
Location:
HIGH COURT
OF
KARNATAKA
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HC-KAR
NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
THIS MFA IS FILED UNDER ORDER XLIII RULE 1(R) OF
CPC, PRAYING TO SET ASIDE THE ORDER DATED 30-07-2026
PASSED ON IA.NO.1 IN O.S.NO.4761/2026 BY X ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This appeal is preferred by the appellant, who is the
plaintiff before the trial Court, challenging the order dated
30.07.2026 passed on I.A.No.I in O.S.No.4761/2026 by
X Additional City Civil and Sessions Judge, Bengaluru (for
short, "trial Court"). The respondents are the defendants
before the trial Court.
2. Parties shall be referred to as per their status
before the trial Court.
3. Brief facts of the case are as under:
The plaintiff filed a suit against the defendants
seeking relief of permanent injunction in respect of the
suit schedule property. Along with the plaint, the plaintiff
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HC-KAR
NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
filed I.A.No.I under Order XXXIX Rules 1 and 2 read with
Section 151 of CPC, seeking an order of temporary
injunction restraining the defendants from interfering with
the construction of the suit schedule property by the
plaintiff.
3.1 Upon service of notice on the suit and the
application, the defendants vehemently opposed the said
application, contending that the plaintiff is not the owner
of the entire extent of the suit schedule property and that
there is a passage measuring 5 feet in width between the
properties of the plaintiff and the defendants. It was
further contended that defendant No.2 had filed
O.S.No.10257/2005 against one Pachamma and her
daughter Bharathi, which came to be decreed on
10.06.2010 in respect of site Nos.54 and 55. On these
grounds, the defendants sought dismissal of the said
application.
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HC-KAR
NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
3.2 Upon consideration of the materials on record
and the arguments advanced by learned counsels for
parties, the trial Court came to the conclusion that the
plaintiff had made out a prima facie case in the suit but
had failed to establish that the balance of convenience tilts
in his favour and that greater irreparable injury and
hardship would be caused to the plaintiff rather than to
the defendants. Accordingly, the trial Court rejected the
application filed by the plaintiff seeking an order of
temporary injunction. It is this order that is challenged by
the appellant-plaintiff before this Court.
4. It is the vehement contention of the learned
counsel for appellant-plaintiff that the impugned order
passed by the trial Court is illegal, perverse and arbitrary.
It is further contended that the trial Court has failed to
take into consideration the registered sale deeds executed
in favour of the plaintiff, the existence of an old hut on the
suit schedule property, the permission obtained by the
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NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
plaintiff from the electricity Board and the building plan
obtained from the Bruhat Bengaluru Mahanagara Palike
(BBMP)/Greater Bengaluru Authority (GBA) for
construction of a residential house.
4.1 It is further contended that the trial Court has
ignored the fact that the plaintiff had obtained a loan from
Axis Bank by creating an equitable mortgage in favour of
the Bank. The site plan, registered documents and
documents relating to the electricity connection obtained
by the plaintiff have also been produced.
4.2 It is further contended that the documents
produced by the defendants, namely, the General Power of
Attorney-cum-sale deed, are not registered documents. It
is further contended that the defendants do not dispute
that the plaintiff is the absolute owner of the suit schedule
property. However, the dispute relates to the 5 feet
passage between the two properties, which the plaintiff
will have to establish during the course of the trial.
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NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
Therefore, the defendants cannot restrain the appellant-
plaintiff from putting up construction on his own property,
which he has acquired under a registered document.
4.3 It is further contended that when the trial Court
has come to the conclusion that a prima facie case is made
out on the basis of the registered documents produced by
the plaintiff, it has committed an illegality and perversity
in holding that the balance of convenience and irreparable
injury and hardship have not been established by the
plaintiff. Therefore, it is further contended that the trial
Court has mechanically rejected the application without
application of mind.
4.4 It is further contended that the trial Court has
also come to the conclusion that, if the plaintiff is
permitted to continue the construction and the defendants
ultimately succeed in establishing their title and
possession, the defendants would suffer irreparable loss,
as the structure would have to be demolished.
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NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
4.5 It is further contended that the suit is one for
bare injunction and that it is open to the defendants to file
an appropriate application seeking necessary relief in
respect of the extent of land claimed by them. If any such
application is filed, the same may be considered by the
trial Court. On these grounds, learned counsel seeks to
allow the appeal, set aside the impugned order and allow
the application for temporary injunction.
5. Per contra , learned counsel for respondents-
defendants vehemently contends that the plaintiff has not
approached the Court with clean hands and has
suppressed material facts regarding 5 feet passage
between the two properties, which is claimed by the
defendants to be their property by virtue of the General
Power of Attorney - cum - sale deed and the subsequent
gift deed. Therefore, it is further contended that though
the plaintiff has produced registered sale deeds, the
defendants are the owners of Site No.54 and a portion of
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MFA No. 6250 of 2026
CNR: KAHC010583452026
Site No.55, to an extent of 5 feet in between the two
properties. Hence, the plaintiff may be permitted to put up
construction only to the extent of his property and not
over 5 feet passage.
5.1 It is further contended that these are all matters
to be decided by the trial Court and that, if any application
is filed by the defendants, the same may be considered in
accordance with law. Similarly, if the defendants seek to
amend their written statement to claim rights over 5 feet
passage between the two properties, the same may also
be considered in accordance with law. Hence, learned
counsel for respondents-defendants contends that there is
no illegality or perversity in the impugned order passed by
the trial Court and that the same is an equitable order that
does not warrant interference by this Court. Accordingly,
learned counsel seeks dismissal of the appeal.
6. I have heard learned counsel for appellant-plaintiff
and learned counsel for respondents-defendants. I have
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MFA No. 6250 of 2026
CNR: KAHC010583452026
perused the impugned order and the documents produced
by the parties before the trial Court.
7. It is not in dispute that the plaintiff is the absolute
owner of the suit schedule property, having purchased the
same from one M.K. Shivakumar under a registered sale
deed dated 20.12.2023. The property originally belonged
to one Munikrishnappa and others, who had acquired the
same by inheritance.
8. It is also seen that the plaintiff is in possession
and enjoyment of the suit schedule property. The title
documents stand in the name of the plaintiff. At the time
of purchase, an old house was existing on the property,
which was let out by the plaintiff till May 2026. In order to
construct a new building, the plaintiff demolished the
existing old house. After obtaining the necessary
sanctioned plan from the BBMP, the plaintiff has
commenced construction of a new building consisting of
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NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
ground plus two floors (G+2). The plaintiff has already put
up pillars on the suit schedule property.
9. During this period, the defendants interfered with
the plaintiff’s construction over the suit schedule property,
in respect of which a Police complaint was also lodged. On
the contrary, the defendants claimed right, title and
interest over 5 feet passage between site Nos.54 and 55
by virtue of the General Power of Attorney and gift deed.
All these are matters that have to be decided by the trial
Court after considering the evidence adduced by both
parties. The suit is for bare injunction and the trial Court
cannot decide the application as though it was a suit for
declaration of title. Once the plaintiff has established
possession and enjoyment of the suit schedule property on
the basis of the title deeds, revenue and municipal records
and the sanctioned plan obtained for construction, the
application for temporary injunction has to be considered
in that context.
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HC-KAR
NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
10. The trial Court, having come to the conclusion
that the plaintiff has made out a prima facie case, ought to
have considered whether the balance of convenience tilts
in his favour and whether the irreparable injury and
hardship that would be caused to the plaintiff would
outweigh the injury that may be caused to the defendants.
11. In the facts and circumstances of the present
case, the plaintiff has produced registered documents in
support of his claim. The sanctioned plan has been
obtained from the Competent Statutory Authority and an
electricity connection has also been obtained. Therefore,
the plaintiff has made out a prima facie case. The balance
of convenience also tilts in his favour in view of the
registered documents, which carry a presumption in law.
Further, irreparable injury and hardship would be caused
to the plaintiff, as he has already put up pillars on the suit
schedule property and invested money in the construction
after obtaining a loan from the Bank.
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NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
12. It is a different matter that, if the defendants
seek to amend their written statement or file an
appropriate application claiming rights over 5 feet
passage, the same may be considered by the trial Court in
accordance with law. As of now, nothing is forthcoming to
indicate that the defendants have raised any counterclaim
in respect of the suit schedule property. Therefore, I am of
the opinion that the view taken and the order passed by
the trial Court is illegal, perverse and arbitrary and that
the impugned order warrants interference for the reasons
stated above.
13. Accordingly, I pass the following:
ORDER
allowed
i. The appeal is ;
ii. The impugned order dated 30.07.2026 passed
on I.A.No.I in O.S.No.4761/2026 by X
Additional City Civil and Sessions Judge,
Bengaluru is hereby set aside. Consequently,
I.A.No.I filed under Order XXXIX Rules 1 and
2 of CPC is hereby allowed;
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NC: 2026:KHC:56899
MFA No. 6250 of 2026
CNR: KAHC010583452026
iii. The respondents-defendants are hereby
restrained from interfering with the
construction being undertaken by the
appellant-plaintiff on the suit schedule
property;
iv. It is open to the respondents-defendants to
make an appropriate application, if so
advised, claiming ownership over 5 feet
passage situated between site Nos.54 and 55.
If any such application is filed, the same shall
be considered by the trial Court in accordance
with law;
v. This Court has not expressed any opinion on
the merits of the matter.
Ordered accordingly.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
CPN
List No.: 1 Sl No.: 15