- 1 - HC-KAR NC: 2025:KHC:20024 MFA No. 3222 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 3222 OF 2025 (CPC) BETWEEN: 1. MR. MUNIRAJU S/O LATE NANJUNDAPPA @ DODDA NANJUNDAPPA AGED ABOUT 55 YEARS 2. MR. VIJAYA KUMAR S/O LATE NANJUNDAPPA @ DODDA NANJUNDAPPA AGED ABOUT 52 YEARS 3. MR. NATARAJA S/O LATE NANJUNDAPPA @ DODDA NANJUNDAPPA AGED ABOUT 45 YEARS THE APPELLANTS NO.1 TO 3 ARE RESIDING AT GOLLAHALLI VILLAGE JALA HOBLI, YELAHANKA TALUK BANGALORE 562 129 …APPELLANTS (BY SRI. THONTADARAYA R K, ADVOCATE FOR SRI. AJIT P B, ADVOCATE) AND: 1. MR. SRINIVASA V S/O VENKATASWAMY @ VENKATASHAMAPPA AGED ABOUT 64 YEARS 2. MR.V. VEERANNA S/O VENKATASWAMY @ Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:20024 MFA No. 3222 of 2025 VENKATASHAMAPPA AGED ABOUT 72 YEARS THE RESPONDENTS NO.1 & 2 ARE RESIDING AT GOLLAHALLI VILLAGE JALA HOBLI, YELAHANKA TALUK BANGALORE 562 129 …RESPONDENTS (BY SRI. J C KUMAR, ADVOCATE FOR R1 & R2) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.22.04.2025 PASSED ON IA NO.1 IN O.S.NO.50/2025 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, REJECTING IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL JUDGMENT 1. The present appeal is filed under Order XLIII Rule 1(r) of Code of Civil Procedure, 19081 by the plaintiffs calling in question the order dated 22.04.2025, whereunder the Additional Senior Civil Judge & JMFC., At Devanahalli2 rejected I.A.No.I filed by the appellants-plaintiffs in O.S. No.50/2025. 2. The relevant facts in a nutshell leading to the present appeal are that the appellants/plaintiffs instituted a suit in O.S. No.50/2025 seeking for declaration that they are the absolute 1 Hereinafter referred to as the ‘CPC’ 2 Hereinafter referred to as the ‘Trial Court’ - 3 - HC-KAR NC: 2025:KHC:20024 MFA No. 3222 of 2025 owners of the schedule ‘A’ property and for a direction to the defendants to handover the vacant physical possession of the schedule ‘B’ property. It is the case of the plaintiffs that they being the owners of the schedule ‘A’ property, the defendants have encroached an extent of 7 ½ guntas in the schedule ‘A’ property. The encroached portion has been described as the schedule ‘B’ property to the plaint. Along with the suit, the plaintiffs filed I.A. No.I under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC to restrain the defendants from changing the nature of the plaint schedule ‘B’ property. The defendant No.1 contested the suit by filing Written Statement. A memo was filed adopting the Written Statement of defendant No.1 as objections to I.A.I. Defendant No.2 has also filed a memo adopting the Written Statement filed by defendant No.1 as also as objections to I.A No.I. The Trial Court by order dated 22.04.2025 rejected I.A No.I. Being aggrieved, the present appeal is filed. 3. Heard the submissions of learned counsel Sri.Thontadharya R.K for the appellants and Sri.J.C. Kumar, learned counsel for respondent Nos.1 and 2. - 4 - HC-KAR NC: 2025:KHC:20024 MFA No. 3222 of 2025 4. It is the vehement contention of learned counsel for the appellants that although three different survey sketches have been produced by the appellants to establish the existence of a road in the middle of land bearing Sy.No.15/1, the Trial Court erred in rejecting the application. It is further contended that the Trial Court while appreciating the factual matrix of the matter has misconstrued the case of the plaintiffs and erred in rejecting I.A. No.I. 5. Per contra, learned counsel for respondents seeking for dismissal of the above appeal, vehemently contends that the southern boundary in the Sale Deed under which the plaintiffs claim right, title and interest in the suit property itself reflects a road and hence, a road is located which divides the property of the plaintiffs and defendants. It is further contended that the Trial Court after appreciating the material on record and having rejected I.A. No.I, the said order of the Trial Court ought not to be interfered with by this Court in the present appeal. Learned counsel for the Respondents also placed reliance on certain photographs produced in the above appeal. - 5 - HC-KAR NC: 2025:KHC:20024 MFA No. 3222 of 2025 6. The submissions of both the learned counsels have been considered and the material on record have been perused. 7. It is forthcoming from the factual matrix of the matter that the plaintiffs have filed a suit for declaration of their right, title and interest in the schedule ‘A’ property and for recovery of the alleged encroached portion of the plaint ‘A’ schedule property which is described as plaint ‘B’ schedule property in the plaint. The allegation of encroachment is denied by the defendants by contending that a road is in existence bifurcating the property of the plaintiffs and property of the defendants. Various material on record are sought to be relied upon by both the learned counsels while putting forth their respective cases. Suffice to note that the allegation being one for encroachment, identity and location of the suit schedule ‘B’ property is required to be adjudicated, which adjudication is required to be done by Trial Court during the course of the trial. 8. The Trial Court while appreciating the case of the parties has rejected I.A.No.I. However, it is relevant to note that the Trial Court at para No.10 of its order has observed that ‘any development made during the pendency of the suit is subject to - 6 - HC-KAR NC: 2025:KHC:20024 MFA No. 3222 of 2025 outcome of the suit’. It is further observed by the Trial Court ‘if any development is made by the defendants and subsequently, the plaintiffs succeed in the suit, the defendants are liable to remove the encroachment made in the schedule ‘B’ property’. 9. In view of the aforementioned, the interest of justice would be met if, at the interim stage, it is ensured that the position of the ‘B’ schedule property is maintained in such a manner that which will enable the successful party to enjoy the fruits of the decree. Hence, in addition to the observation made by the Trial Court which has been noticed at para No.8 hereinabove, the above appeal is disposed of by observing that any development made in the suit schedule ‘B’ property by the defendants shall be subject to out come of the suit and that the defendants shall not claim any equities, in the event, any development is made. 10. The observations made by the Trial Court while passing the order dated 22.04.2025, rejecting I.A.No.I and the observation made by this Court in the present order are only for the purpose of consideration of I.A. No.I and the Trial Court shall proceed with the suit uninfluenced by any of the - 7 - HC-KAR NC: 2025:KHC:20024 MFA No. 3222 of 2025 observation made. All contentions of both the parties are left open. 11. It is needless to state both the parties shall cooperate with the Trial Court for expeditious disposal of the suit. Sd/- (C.M. POONACHA) JUDGE BS List No.: 2 Sl No.: 13