- 1 - NC: 2025:KHC:13257 MFA No. 2033 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 2033 OF 2025 (CPC) BETWEEN: SMT. GEETHA R PANDITH W/O KISHORE G DESAI AGED ABOUT 65 YEARS R/AT No. 63, 2ND MAIN, 2ND STAGE, AGB LAYOUT MAHALAKSHMI PURAM BENGALURU- 560 086. …APPELLANT (BY SRI KESHAVA K V, ADVOCATE) AND: SRI C JAGADEESHA S/O CHIKKATHIMMAIAH AGED ABOUT 40 YEARS R/AT NAGARABHAVI VILLAGE, OPP. TO MARUTHI TEMPLE ISEC ROAD NAGARABHAVI BENGALURU - 560 072. …RESPONDENT (BY SRI RAJENDRA, ADVOCATE FOR C/R) THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 04.03.225 PASSED ON I.A.NO.1 IN OS.NO.3217/2024 ON THE FILE OF THE C/C XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-17, DISMISSING THE IA.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC AND ETC., Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13257 MFA No. 2033 of 2025 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The plaintiff being aggrieved by the order dated 04.03.2025, passed on I.A.No.1, filed under Order XXXIX Rule 1 and 2 r/w Section 151 CPC whereby the application for temporary injunction was dismissed in O.S.No.3217/2024 by the Court of the XXII Additional City Civil and Sessions Judge at Bengaluru, that built up the present appeal. 2. The plaintiff has filed a suit for permanent injunction claiming to be the owner of the site No.744, formed within the Sy.No.96 and defendant being stranger, is interfering with the possession of the plaintiff. Therefore, the suit is filed for permanent injunction and also filed an application under Order XXXIX Rule 1 and 2 r/w Section 151 CPC and initially the plaintiff was successful in obtaining exparte order of temporary injunction. 3. On the strength of it, the plaintiff has started construction and in the midst of the said construction and upon the objection filed by the defendant, the Trial Court has - 3 - NC: 2025:KHC:13257 MFA No. 2033 of 2025 observed that the plaintiff has not made out prima-facie case, therefore, dismissed the application I.A.No.1. Being aggrieved by the same, plaintiff has filed the present appeal. 4. Learned counsel for the plaintiff submits that the plaintiff has purchased the site from Sri Vinayaka House Building Co-operative Society Limited, Bengaluru by virtue of the sale deed dated 05.02.1997 and produced sanction layout plan and other consequential records such as khatha, possession certificate etc. Therefore, prima-facie case is made out against defendant. But, this is not considered by the Trial Court and has wrongly dismissed the application. Therefore, prays to allow the appeal. 5. On the other hand, learned counsel for the defendant submitted that the site is coming within the Sy.No.143 (old Sy.No.17). The land in Sy.No.143 to the extent of four acres was not acquired by Sri Vinayaka House Building Co-operative Society Limited, Bengaluru, but has acquired other lands, except this land in Sy.No.143 (old Sy.No.17). But, the said Society has prepared a layout plan including the land in Sy.No.143 and obtained sanction plan in the year 1992. - 4 - NC: 2025:KHC:13257 MFA No. 2033 of 2025 Thereafter, the land owner Chikka Thimmaiah has approached the BDA for modified layout plan since his land is also included in the sanction plan, but virtually his land was not taken over by the Society. Consequently, the BDA has stayed the said sanction plan. They submit that when this being the contention issue, the plaintiff just by filing the suit for permanent injunction has not made out a prima-facie case and this is rightly considered by the Trial Court, thus dismissed the application. Therefore, justifying the impugned order prays to dismiss the appeal. 6. Upon considering the said submissions, after perusing the materials placed by the plaintiff which is sale deed dated 05.02.1997, the recital indicates that the Society has formed sites by acquiring 78 acres of land by mentioning all the survey numbers including the Sy.No.96 and Sy.No.17. Therefore, the sale deed itself is not clear whether the site is formed exactly in Sy.No.96 or it may be also in Sy.No.17. 7. When this being the contentious issue in the suit, but this would not be considered in the suit filed for permanent injunction only. Moreover, when the land owner of Sy.No.17 - 5 - NC: 2025:KHC:13257 MFA No. 2033 of 2025 (new No.143) has a dispute before the BDA that the Society has included in the layout plan, his land also then upon considering the materials, the BDA has stayed the said sanction plan. Therefore, on the basis of that, the plaintiff cannot contend taking the benefit of the said sanction plan. The said sanction plan is stayed by the BDA on 31.07.2003. This Court in W.P.No.31575/2003 by order dated 18.11.2003 has quashed approved modified plan on 03.05.2003, which relates to the land in Sy.No.17 is concerned. Further, the approved plan of the year 1992 though is kept undisturbed, but it remained intact except Sy.No.17. Therefore, the dispute regarding Sy.No.17 continues. 8. In the circumstances, when it is in dispute whether the suit schedule site is in the Sy.No.96 or Sy.No.143 (old Sy.No.17) is presently considered and when this has become the prima-facie case to consider the suit, but this could be done when a comprehensive suit is filed for declaration and could not be considered in a suit for permanent injunction. When the title of the plaintiff’s portion property is under cloud to say that on which survey number, the site is situated whether is it in Sy.No.96 or in Sy.No.143, this could not be a triable issue in a - 6 - NC: 2025:KHC:13257 MFA No. 2033 of 2025 suit for permanent injunction. But, the suit is filed for permanent injunction only. Therefore, the Trial Court is correct that the plaintiff has not made out a prima-facie case in this regard. Therefore, justified in dismissing the application I.A.No.1. Therefore, the appeal is liable to be dismissed. 9. However, the plaintiff is given liberty to seek a proper relief or make other relief claiming the reliefs comprehensively by claiming the relief including the relief of declaration. In such an event, if the liberty granted in this regard is exercised by the plaintiff, then the plaintiff is at liberty to file one more application seeking appropriate relief of injunction and in such an event the Trial Court shall consider afresh in accordance with law. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MR