- 1 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 24774 OF 2025 (GM-CPC) C/W WRIT PETITION NO. 25145 OF 2025 (GM-CPC) IN WP No. 24774/2025 BETWEEN: 1. SRI B. VENKATESH S/O LATE BEERAPPA, AGED ABOUT 60 YEARS. 2. SMT. SHANTHAMMA D/O LATE BEERAPPA AGED ABOUT 46 YEARS. 3. SRI NAVEENKUMAR S/O LATE BEERAPPA AGED ABOUT 30 YEARS. 4. SRI BHARATH S/O LATE BEERAPPA AGED ABOUT 28 YEARS. 5. SRI KEERTHI S/O LATE BEERAPPA AGED ABOUT 25 YEARS. Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 6. SRI KIRAN S/O LATE BEERAPPA AGED ABOUT 25 YEARS ALL ARE RESIDING AT NEAR SAMUDAYA BHAVAN, VEERENAHALLI VILLAGE, BIDARAHALLI HOBLI, VIRGONAGAR POST, BENGALURU EAST TALUK, BENGALURU - 560 049. …PETITIONERS (BY SRI PRAKASH M.H., ADVOCATE) AND: SRI B. BASAVARAJU S/O LATE CHIKKABASAVAIAH, AGED ABOUT 72 YEARS, R/AT DODDANALLALA VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT – 562 114. …RESPONDENT (BY SRI PUNITH C., ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 25.07.2025 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HOSKOTE IN M. A. NO.05/2025 VIDE ANNEXURE-Z AND CONSEQUENTLY SET ASIDE THE ORDER DATED 09.04.2025 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC, HOSAKOTE IN O. S. NO.65/2025 VIDE ANNEXURE-V BY ALLOWING THE APPLICATIONS FILED BY THE PETITIONERS VIDE ANNEXURE-N. - 3 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 IN WP NO. 25145/2025 BETWEEN: SRI B.VENKATESH S/O LATE BEERAPPA, AGED ABOUT 60 YEARS RESIDING AT NEAR SAMUDAYA BHAVAN, VEERENAHALLI VILLAGE, BIDARAHALLI HOBLI, VIRGONAGAR POST, BENGALURU EAST TALUK, BENGALURU – 560 049. ...PETITIONER (BY SRI. PRAKASH M.H., ADVOCATE) AND: SRI B.BASAVARAJU S/O LATE CHIKKABASAVAIAH, AGED ABOUT 72 YEARS, R/AT DODDANALLALA VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT – 562 114. ...RESPONDENT (BY SRI PUNITH C., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 25.07.2025 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HOSKOTE IN M.A NO. 42/2024 VIDE ANNEXURE-G AND CONSEQUENTLY SET ASIDE THE ORDER DATED- 30.09.2024 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC, HOSAKOTE IN O. S. - 4 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 NO.87/2024 VIDE ANNEXURE-E. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER Both these petitions are filed seeking quashment of the judgments dated 25.07.2025, passed by the Senior Civil Judge and JMFC, Hoskote, in M.A.Nos.5/2025 and 42/2024, whereby, affirming the orders dated 09.04.2025 and 30.09.2024 respectively, passed by the Additional Civil Judge and JMFC, Hosakote, on the applications filed by the petitioners both under Order XXXIX Rules 1 and 2 r/w. Section 151 of the CPC, seeking ad-interim order of temporary injunction against the defendant, comes to be affirmed. 2. Heard Sri Prakash M.H., learned counsel for the petitioners and Sri Punith C., learned counsel for the respondent in both the petitions. - 5 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 3. The petitioners and respondents in both these petitions are common parties. Therefore, they are taken up together and considered by this common order. 4. For the sake of convenience, pleadings in O.S.No.65 of 2025 would be taken note of. The petitioners and the respondents are prosecuting two different suits for injunction and the scheduled property in dispute is common in these two petitions. The issue does not relate to the merit of the matter. The respondent in O.S.No.65 of 2025 files a suit for injunction in O.S.No.87/2024 against petitioner No.1, alleging interference in respect of 2 acres of land in Survey No.134 (new No.134/2). First petitioner files a written statement to the suit contending that the respondent is taking shelter under the Phodi, which favours him and he is trying to encroach the land to an extent of 1 and ½ acres of land in the suit schedule property. The concerned Court grants an temporary injunction. The petitioners then files a suit in O.S.No.65/2025 against the respondent in respect of 4 acres of land. The concerned Court vacates the temporary injunction on a application being filed by the respondent. The petitioners then file Miscellaneous Appeal - 6 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 in M.A.No.5/2025. The appeal also comes to the rejected and therefore, the petitioners are before this Court in the subject petitions. 5. In W.P.No.25145/2025, the subject petition is preferred by the defendant in O.S.No.87/2024. In O.S.No.87/2024, the plaintiff is seeking injunction against the petitioner herein by preferring an application under Order XXXIX Rules 1 and 2 of the CPC. The concerned Court after hearing the parties, is said to have granted an order of injunction on 30.09.2024. The petitioner files an miscellaneous appeal challenging the said order in M.A.No.42/2024. The appeal filed by the petitioners against the order of temporary injunction also comes to be rejected. Therefore, the petitioners have challenged the judgments of the appellate Court before this Court in these subject petitions. The challenge now is to two judgments of the appellate Courts, one in M.A.Nos.5/2025 and 42/2024. Both are concurrent findings. 6. Sri Prakash M.H., learned counsel for petitioners would contend that the grant of injunction and its vacation are contrary to law as the appellate Court in normal circumstances - 7 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 would not interfere with the discretionary order passed by the trial Court. If discretion is exercised by the trial Court in the proceedings would on the face of it, is illegal. Notwithstanding this, the case of the petitioners is that, the appellate Court has interfered with the order of injunction granted and therefore, would submit that there is warrant of interference by this Court and restoration of the ad-interim injunction orders granted by the trial Court. He would further contend that while adjudicating the applications seeking temporary injunction, the trial Court and the appellate Court have formed opinion that the respondent has not at all encroached the land and has doubted the very existence of the petitioners possession. Therefore, he would submit that the pre-trial determination runs contrary to the law and the scope and power of the Court is exceeding while deciding injunction applications. 7. Per contra, Sri Punith C., learned counsel for respondent would submit that the concerned Court after giving cogent reasons has vacated the interim orders and the vacation of the interim orders has been affirmed by the appellate Court in both the cases. Therefore, it becomes an concurrent finding, - 8 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 albeit, prima facie. Therefore, this Court should not intervene or interfere with the orders at this stage in these proceedings. He would submit that there is a dispute with regard to the properties. Therefore, it is for the concerned Court to finally decide the issue of injunction. 8. Sri Prakash M.H., learned counsel for the petitioners would now contend that the properties are overlapping. It is that, which has created confusion and therefore, this Court must appoint a Court Commissioner for that purpose. He would nonetheless seek an order of injunction that was sought before the trial Court. 9. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record. 10. The afore-narrated facts are all a matter of record, which would not require reiteration. The plaintiffs in O.S.No.65/2025, are the petitioners 1 to 6 and the sole defendant. The plaint averment traces the history of the possession of the land, which is not necessary for consideration - 9 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 at this juncture. The concerned Court while answering the applications under Order XXXIX Rules 1 and 2 of the CPC, rejected the applications filed by the petitioners and allowing the application filed by the respondent under Order XXXIX Rule 4 of the CPC, vacating the ex-parte temporary injunction. The order dated 09.04.2025 passed in O.S.No.65/2025 reads as follows: “REASONS 12. Point No.1 to 4: The plaintiffs have filed the present applications for relief of temporary injunction to restrain the defendant from interfering with the suit schedule property and also from the putting up any compound wall by encroaching upon the suit schedule property. 13. It is the case of the plaintiffs that they acquired the suit property under release deed and originally it was belonged to one Chikka Munivenkatappa later on it was sold to one Balaji, thereafter to one Muniyappa, then Muniyappa and his sisters sold the same to one Kodandaramashetty, thereafter he sold to one Obareddy. then from said Obareddy, the father of the plaintiffs purchased the suit property under the registered sale deed. Further the plaintiffs' father and mother relinquished their right in the suit property to the plaintiff No.1 and his brother and sisters, thereafter, the said sisters relinquished their rights to plaintiff No.1 and husband of plaintiff No.2. hence they have become owner and in possession of the suit property. On the other hand it is contention of defendant that the boundaries shown by the plaintiffs are not correct and the plaintiffs are not in the possession of the suit property. 14. To prove prima-facie case the plaintiffs have produced grant certificate of original grantee by name - 10 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 Chikka Venkatappa, sale deeds from 1995 and RTC extracts etc., on the other hand the defendant has produced the sale deeds from 1969, RTC extracts, copy of plaint and written statement and interim order passed O.S.No.87/2024 etc. On perusal of documents placed by both the parties prima-facie it appears that the 4-A of land in Sy.No.61 was granted to Chikka Venkatappa. On going through pleadings, it appears that, the dispute is only with respect to the boundaries shown by the plaintiffs, on careful reading of sale deeds from 1975 till 1996 it appears that, in every sale deed the boundaries of sale deeds property at Northern and Southern side. have been changed, it is main contention of the defendant that when the boundaries shown by the plaintiffs is not proper, then injunction cannot be granted and according to him at Southern side, there is Appasandra boarder and the plaintiffs have not shown the boundaries as per their possession but, as per their convenience they have shown the boundaries of the suit property and it is another contention of the defendant that the Sy.No.61 has assigned with new number by Sy.No. 133, 134, and 135 and possessors of land in Sy.No.61 have got phoded their lands and got assigned new survey number. On going through RTC extracts for the year 2024-25 produced by both side, it appears that the name of defendant is showing for the survey number-133/1 and the RTC extracts produced by plaintiff show that as on date of filing of suit the survey number 61 is existing in the RTC extract, hence on combined reading of RTC extracts produced by both parties and mutation extracts it appears that the Sy.No.61 has surveyed and the defendant has got fixed boundaries of his land, on the other hand the RTC extracts of the plaintiffs show that till date in Sy.No.61 the total extent of land is 491-A, 21-G and there are many land holders in the same, under such circumstances prima-facie it appears that, the defendant and few others have got fixed their boundaries from authority concerned but till date the plaintiffs have not got fixed the boundaries of their land. 15. Further the counsels for plaintiffs and defendant have produced the notice issued to the parties of revision petition filed by present plaintiffs, on going through which it appears that the present plaintiff No.1 has questioned the survey conducted in Sy.No.61 and - 11 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 also assigning of new Sy.No.133, 134 which are said to be purchased by defendants brother and defendant. It is pertinent to note that, the said revision petition has said to be filed by present plaintiff No. 1 and in the present suit there are other plaintiffs who are wife and children of brother of plaintiff No.1 and they are not parties to the said petition. The plaintiffs have produced the relinquishment deeds executed by daughters of said Beerappa and Siddamma in favour of present plaintiff No.1 and his mother and another one in favour of husband and father of plaintiff No.2 to 6, both the release deed show that out of 4-A in Sy. No.61 the entire 4-A has been relinquished by the daughters in favour of present plaintiff No.1 and his mother and even the another relinquishment deed executed in favour husband of plaintiff No.2 also reveals that the entire 4-A has relinquished in favour of husband of plaintiff No.2. Further on going through said release deeds the boundaries are one and same as shown in the plaint but at Southern Side they have shown that there is Appasandra boarder and Siddammma land but that has not shown in the plaint. Therefore at this stage it appears that the documents of plaintiffs show that the boundaries shown by them in the plaint are different from the boundaries shown in the various sale deeds and the release deeds and this discrepancy substantiate the defence taken by the defendant. 16. Further, the plaintiffs even though are said to be in possession of the land situated in Sy.No.61 but since there is dispute as to boundaries and none of the documents are tallying with the each other in respect of boundaries, and prima-facie it appears that yet the plaintiffs have not got fixed their boundaries, under such circumstances if the injunction will be granted, the hardship will be caused to defendant rather to the plaintiffs, because the defendant has got identified his property with the boundaries by Survey authority, whereas plaintiffs have not got fixed their boundaries, under such circumstances when the boundaries are in dispute and there are no documents to prima-facie show that the suit property is situated within the particular boundaries, under such circumstances it has to be hold the plaintiffs have not established the prima-facie case and it needs to be decided in full fledged trial. Therefore - 12 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 when there is a dispute of boundaries and no materials to prima-facie establish the prima-facie case, the temporary injunction cannot be granted. 17. Further, the plaintiffs, have alleged that, the defendant is trying to erect the compound wall by encroaching the portion of the suit property, but at this stage there is no single document to show that, the compound wall is being erected in the suit property. Therefore, at this stage looking into facts and circumstance of the case and analyzing the materials placed before the court, it appears that plaintiffs have failed to establish prima-facie case in their favour and balance of convenience also does not lean in favour of the plaintiffs and if the application is allowed comparative hardship will be caused to defendant rather to the plaintiffs. Hence, I answer point No.1 to 3 in the "Negative". 18. Point No 4: As discussed above in Point No.1 to 3. the plaintiffs have not established prima facie case and balance of convenience also does not lean in their favour, the defendant has shown grounds to vacate the ex-parte temporary injunction granted in favour of plaintiffs. Hence, I answer point No.4 in the Affirmative. 19. Point No 5: In view of my findings on Point No. 1 to 4 as discussed above, I proceed to pass the following: ORDER The IA.No.I and II filed by the plaintiffs Under Order XXXIX Rule 1 and 2 R/W Sec. 151 of C.P.C. are hereby 'Rejected'. The IA.No.IIII filed by the defendant Under Order XXXIX Rule-4 R/w Sec.151 of C.P.C. is hereby 'Allowed'. Consequently ex-parte order passed on IA.No.I and II is hereby vacated. No order as to costs.” - 13 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 This is challenged before the appellate Court and the appellate Court affirms the finding by its judgment dated 25.07.2025. It reads as follows: “…. …. …. 17. On perusal of available records produced by both the parties, the respondent has denied the existence of suit schedule property and also taken a specific contention that towards eastern side there is an existence of property bearing Sy.No.135. But, the plaintiff is claiming over the property belongs to the respondent. 18. Further, as per Haddubasthu sketch there is no encroachment with respect to the property bearing Sy.No. 134/2. Further, as per sale deeds and the release deed dated 25-1-2024 clearly goes to show that the boundaries mentioned in the suit schedule property and the above said documents towards southern side it was mentioned as property belongs to Beerappa who is the father of plaintiff. But in other documents it was mentioned as Appasandra Border. 19. On perusal of all the above records clearly goes to show tat the boundaries mentioned in the plaint and the revenue records along with sketch and the title deeds, there is a difference in the boundaries towards southern side and eastern side. Therefore, the plaintiff has to prove the existence of suit schedule property and the correct boundary with respect to the same. As the respondent denied the existence of suit schedule property it requires a full fledged trial. 20. At this stage the appellants have not made out any reasonable grounds to prove that the suit schedule property is in existence within the boundary as mentioned in the plaint and other documents. Therefore, at this stage the appellant has not made out any prima facie - 14 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 case and the balance of convenience is also not lies on his favour. If an order of temporary injunction is granted more hardship would be caused to the respondent rather than the appellant. Hence, the appellants have not made out any reasonable grounds to interfere with the findings of the trial court. Hence, order passed the trial court does not call for any interference by this court and accordingly. I answer point No.1 in the "Negative". 21. Point No.2:- As per discussion on point No. 1. I proceed to pass the following: ORDER The appeal preferred by the appellants/plaintiffs Order 43 Rule 1(r) of CPC is hereby rejected. No order as to costs. Office is hereby directed to sent the copy of this Judgment to the trial court in accordance with law.” The same goes with the companion petition. There are different areas of land, but the claim remains the same. 11. It is the case of the petitioners that they had also preferred an application seeking appointment of a Court Commissioner under Order XXXIX Rule 6 of the CPC, before the concerned Court in view of the overlapping of the properties, all of which could not have been rejected by the impugned common order. - 15 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 12. In the peculiar facts and circumstances of the case, I deem it appropriate to remit the petitioners before the concerned Court to make an application under Order XXXIX Rule 6 of the CPC seeking appointment of a Court Commissioner, if so desire and if such an application is filed before the concerned Court, it is open for the concerned Court to answer the application on its merits in accordance with law and the apprehension of the petitioners is that, the pre-trial observations of the trial Court that the petitioners is not in possession of the property or the defendant has not encroached the property of the petitioners were all unnecessary for a decision while answering an application. In that light all these observations that are against the petitioners, except denial of injunction are all expunged on the score that all the pre-trial observations would undoubtedly affect the trial. 13. Both the learned counsel for the petitioners and the respondent in unison would submit that if an direction is issued to the concerned Court to conclude the proceedings within a fixed time limit, it would suffice and resolve the dispute. - 16 - HC-KAR NC: 2025:KHC:43304 WP No. 24774 of 2025 C/W WP No. 25145 of 2025 14. For the aforesaid reasons, the following: ORDER a. The writ petitions stand disposed, without interfering with the judgments dated 25.07.2025, passed in M.A.Nos.5/2025 and 42/2024. b. The petitioners if they so desire, are at liberty to file an application under Order XXXIX Rule 6 of the CPC seeking an appointment of the Court Commissioner, which shall be decided by the concerned Court in accordance with law. c. In the light of the fact that the suit is only for injunction, the concerned Court shall endeavour to conclude the proceedings within an outer limit of nine months from the date of receipt of a copy of the order. Sd/- (M.NAGAPRASANNA) JUDGE nvj List No.: 1 Sl No.: 44