- 1 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL No.6183 OF 2025 C/W MISCELLANEOUS FIRST APPEAL NO. 6185 OF 2025 (CPC) IN MFA NO. 6183/2025 BETWEEN: SRI. JOSEPH THREGARO @ JOSEPH THYAGARAJ SON OF THE LATE THOMOSAPPA AGED ABOUT 74 YEARS RESIDING AT NO.4/5, 4TH CROSS HUTCHINS ROAD, ST. THOMAS TOWN POST, BENGALURU – 560 084 …APPELLANT (BY SRI. JANARDHANA.G, ADVOCATE) AND: SRI. RAVIKUMAR @ RAVI PATEL SON OF THE JAYARAM AGED ABOUT 54 YEARS RESIDING AT NO.638 4TH MAIN, PATEL MUNIVENKATAPPA LAYOUT, BEHIND JMJ PHILOMENA HOSPITAL, NAGAWARA, BANGALORE – 560 045 …RESPONDENT (BY SRI. SUNIL.T.V, ADVOCATE FOR C/R IN CP17750/25) Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.05.08.2025 PASSED ON IA NO.2/2025 IN O.S.NO. 8278/2024 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU SCCH-42, REJECTING THE IA.NO. 2/2025 FILED U/O.39 RULE 1 AND 2 OF CPC. IN MFA NO. 6185/2025 BETWEEN: SRI. JOSEPH THREGARO @ JOSEPH THYAGARAJ SON OF THE LATE THOMOSAPPA AGED ABOUT 74 YEARS RESIDING AT NO.4/5, 4TH CROSS HUTCHINS ROAD, ST. THOMAS TOWN POST, BENGALURU – 560 084 …APPELLANT (BY SRI. JANARDHANA.G, ADVOCATE) AND: SRI. RAVIKUMAR @ RAVI PATEL SON OF THE JAYARAM AGED ABOUT 54 YEARS RESIDING AT NO.638 4TH MAIN, PATEL MUNIVENKATAPPA LAYOUT, BEHIND JMJ PHILOMENA HOSPITAL, NAGAWARA, BANGALORE – 560 045 …RESPONDENT (BY SRI. SUNIL.T.V, ADVOCATE FOR C/R IN (CP17750/25) THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT. 05.08.2025 PASSED ON IA NO.1/2024 IN O.S.NO.8278/2024 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-42, REJECTING - 3 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 THE IA.NO.1/2024 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, 1908. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT These two appeals are filed against the order dated 05.08.2025 passed on I.A.Nos.1 and 2 of 2025 filed under Order XXXIX Rules 1 and 2 of CPC in OS.No.8278/2024 by XLI Addl. City Civil and Sessions Judge, Bangalore (CCH-42) seeking an ad-interim order of temporary injunction restraining the defendant, his henchmen, servants from interfering with the plaintiff’s possession and enjoyment of the suit property and requesting the Court to pass the interim order of injunction. 2. The rank of the parties is referred to as per their rankings before the trial Court. 3. The plaintiff has filed the suit for declaration and permanent injunction and the defendant from - 4 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 changing the nature of the property and the trial Court has granted an exparte order of temporary injunction and in respect of it, it is alleged that the defendant has made construction of shed on the suit property. Therefore, the plaint is amended to insert the relief of mandatory injunction to remove the structure on it. 4. The trial Court has dismissed both the applications on the reason that the plaintiff has failed to plead and provide sufficient documents with regard to extent of the suit property owned and possessed by him as on the date of the suit and also the extent of property retained by the plaintiff after alleged construction of shed by the defendant in the suit property. Therefore, in the absence of necessary documents indicating the ownership of the plaintiff over the alleged encroachment and certain documents, therefore, rejected the applications. The trial Court has observed that the plaintiff has failed to disclose the clear identity of the suit property and therefore, failed - 5 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 to make out a prima facie case and with these observations dismissed the applications. 5. The learned counsel for the appellant/plaintiff submitted that the plaintiff is the owner of the suit property having purchased through the registered sale deed dated 07.08.1972 and after purchasing the same, the total extent of the land is 5445 sq.ft and the name of the plaintiff was mutated in the property extract and also property submitted to tax assessment. Accordingly, the plaintiff has made tax paid under the self assessment scheme and also produced encumbrance certificate and photographs. Therefore, submitted that the plaintiff has produced all the relevant documents to prove that he is the owner and in possession of the property along with boundary. Therefore, prima facie case is made out so as to grant an order of temporary injunction, but the trial Court has not properly considered the same and erroneously dismissed the applications. - 6 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 6. On the other hand, the learned counsel for the respondent/defendant submitted that the trial Court is correct in observing that the plaintiff has failed to produce the necessary and relevant documents to show the identity of the property and to what extent the plaintiff is in possession and what was the extent of encroached portion. Therefore, the trial Court is correct in dismissing the applications. Therefore, prays to dismiss the appeal. 7. Upon considering the rival submissions and material produced, the points that arise for consideration are as under: (i) Whether, under the facts and circumstances of the case, the plaintiff makes out prima facie case on the basis of the materials produced before the trial Court so as to grant order of temporary injunction? (ii) Whether, under the facts and circumstances of the case, the plaintiff makes out case of balance of convenience on the basis of the materials produced before the trial Court so as to grant an order of temporary injunction? - 7 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 (iii) Whether, under the facts and circumstances of the case, if an order of temporary injunction is not granted, then the plaintiff would suffer any irreparable loss or injury? 8. The suit is filed for permanent injunction and initially obtained an exparte order of temporary injunction. It is the allegation of the plaintiff that even after passing exparte order of temporary injunction, the defendant has encroached the northern portion of the suit property belonging to the plaintiff and put up shed on it. The plaintiff has got amended the plaint seeking mandatory injunction and filed the application under Order XXXIX Rules 1 and 2 of CPC. 9. The defendant has filed the written statement, but has not filed any documents except some photographs. The defendant has not disputed the ownership of the plaintiff over the property which was purchased through registered sale deed dated 7.08.1972 as discussed above. Also the plaintiff has produced the - 8 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 sketch prepared by the plaintiff showing location of the same with measurement. Only subsequent change after purchase of the property by the plaintiff is towards the eastern side of the land, which was acquired for the purpose of formation of road, this is the only change in the boundary. Further the plaintiff has produced the property extract showing the site dimension is 5445 sq. ft. Also the plaintiff has produced the tax assessment records and tax paid receipt assessing under self assessment scheme and other documents along with encumbrance certificate. 10. When this being the fact that the plaintiff has produced the prima facie materials to show that who is the owner of the property and towards northern side of the property, there is construction of shed by putting iron grill. Therefore, this shows that the plaintiff has made out a prima facie case. The identity of the property is probably shown by the plaintiff by producing the documents as above discussed. The defendant has not denied the title of the plaintiff over the property measuring to the extent of - 9 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 5445 sq.ft. The dispute is regarding towards northern side of the plaintiff’s property, the defendant has encroached and put up construction. 11. When this being the fact and in the absence of any document by the defendant except production of certain photographs, it cannot be said that the plaintiff has not made out prima facie case. Therefore, the plaintiff has made out prima facie case that who is the owner of the suit property and the defendant has encroached on it and therefore, the balance of convenience lies in favour of the plaintiff and therefore, if the order of temporary injunction is not granted, then the plaintiff would put into great loss and injury and also leads to multiplicity of proceedings. Accordingly, answered point Nos.i, ii and iii in affirmative. Therefore, the plaintiff is entitled for the relief of temporary injunction. 12. Therefore, I proceed to pass the following - 10 - HC-KAR NC: 2025:KHC:33233 MFA No. 6183 of 2025 C/W MFA No.6185 of 2025 ORDER i. The appeals are allowed. ii. The order dated 05.08.2025 passed on I.A.Nos.1 and 2 of 2025 filed under Order XXXIX Rules 1 and 2 of CPC in OS.No.8278/2024 by XLI Addl. City Civil and Sessions Judge, Bangalore (CCH-42) is set aside. iii. The order of temporary injunction is granted restraining the defendant, his henchmen, servants from interfering with the plaintiff’s possession and enjoyment of the suit property and also restraining the defendant from subletting the schedule property. iv. The trial Court shall not be influenced by the observations as made above and the trial Court shall consider the case on its merits as per the evidence to be let in before it in accordance with law. SD/- (HANCHATE SANJEEVKUMAR) JUDGE PB, List No.: 1 Sl No.: 72