- 1 - NC: 2025:KHC-D:7095 WP No. 100940 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2ND DAY OF MAY, 2025 BEFORE THE HON'BLE MRS JUSTICE M.G.UMA WRIT PETITION NO. 100940 OF 2025 (GM-CPC) BETWEEN: SMT. DEEPA W/O. JYOTHIBA SHIMPI, AGED 37 YEARS, OCC. HOUSEHOLD WORK, R/O. GOLABHAVI, TQ. RABAKAVI-BANAHATTI, DIST. BAGALKOT-587315. …PETITIONER (BY SRI. GIRISH A. YADAWAD, ADVOCATE) AND: 1. NAGARAJ S/O. BHIMAPPA HOSAKOTI AGE. 36 YEARS, OCC. BUSINESS, R/O. GOLABHAVI, TQ. RABAKAVI-BANAHATTI DIST. BAGALKOT-587315 2. BASAVARAJ S/O. BHIMAPPA HOSAKOTI AGE. 27 YEARS, OCC. BUSINESS, R/O. GOLABHAVI, TQ. RABAKAVI-BANAHATTI, DIST. BAGALKOT-587315. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - NC: 2025:KHC-D:7095 WP No. 100940 of 2025 3. SMT. MEENAKSHI W/O. BHIMAPPA HOSAKOTI, AGE. 56 YEARS, OCC. HOUSEHOLD, R/O. GOLABHAVI, TQ. RABAKAVI-BANAHATTI, DIST. BAGALKOT-587315. 4. SMT. AISHWARYA W/O. BHIMAPPA HOSAKOTI, AGED 31 YEARS, OCC. HOUSEHOLD, R/O. GOLABHAVI, TQ. RABAKAVI-BANAHATTI, DIST. BAGALKOT-587315. …RESPONDENTS (BY SRI. S.C. BHUTI, ADVOCATE) -------- THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 25.01.2025 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC BANAHATTI, IN MA NO.10/2024 VIDE ANNEXURE-E AND CONFIRM THE ORDER DATED 12-09-2024 PASSED BY THE CIVIL JUDGE AND JMFC, BANAHATTI ON IA O. 1 ON OS NO.176/2024 VIDE ANNEXURE - D, IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: - 3 - NC: 2025:KHC-D:7095 WP No. 100940 of 2025 CORAM: THE HON'BLE MRS JUSTICE M.G.UMA ORAL ORDER The petitioner has approached this Court seeking issuance of writ in the nature of Certiorari to quash the order dated 25.01.2025, passed by the Senior Civil Judge and JMFC, Banahatti in M.A.No.10/2024, produced as per Annexure-E. 2. Heard Sri.Girish A Yadwad, learned counsel for the petitioner and Sri.S.C.Bhuti, learned counsel for respondent Nos.1 to 4. Perused the materials on record including the report of the Commissioner, who is none other than the ADLR of Rabakavi-Banahatti. 3. It is the contention of the petitioner, who is the plaintiff before the Trial Court that the defendants being the owners of VPC No.208 is constructing the building encroaching on a portion of VPC No.209, which was purchased by the plaintiff under the registered sale deed. The Trial Court initially granted temporary injunction restraining the defendants from making any construction in VPC No.209 - 4 - NC: 2025:KHC-D:7095 WP No. 100940 of 2025 as per the measurement shown in the registered sale deed. However, the First Appellate Court allowed the appeal and set aside the temporary injunction granted by the Trial Court. 4. When the matter is pending before this Court, the ADLR, Rabakavi-Banahatti is appointed as a Commissioner to visit, to measure VPC No.208 and 209 situated in Golahavi village and to report the same. Accordingly, the ADLR has visited the spot, measured VPC No. 208 and 209 and submitted his report. As per the report, taking into consideration actual possession and enjoyment of the properties, the measurement shown in the sale deed, and measurement shown in VPC extract are not tallying. Therefore, he is not in a position to report about any encroachment by the defendants. 5. Learned counsel for the petitioner places reliance on the decision of the Hon’ble Apex Court in Ramakant Ambalal Choksi V/s. Harish Ambalal Choksi and Ors. 1 to contend that the High Court cannot overstep the appellate 1 AIRonline 22024 SC 903 - 5 - NC: 2025:KHC-D:7095 WP No. 100940 of 2025 jurisdiction under Order 43 of CPC and substitute it's own view for the one, which is already taken by the Trial Court without giving any categorical finding as to why the order of the Trial Court is said to suffer from any perversity, capriciousness, arbitrariness, malafides or having been passed in ignorance of settled principles governing the grant of injunction under Order 39 of CPC. 6. Even though, I cannot have any dispute with the settled position of law highlighted at para 38 of the judgement, it is to be noticed that, when the parties have appeared before this Court, the Court has appointed a Commissioner, who is none other than the ADLR, who measured both properties and submitted his report. The report categorically states that even after measurement of the both the lands, he is not in a position to say about the encroachment by the defendants. Under such circumstances, I am of the opinion that, if the temporary injunction granted by the Trial Court is to be continued, it will work out hardship on the defendants. Therefore, I am not inclined to extend the temporary injunction granted by the Trial Court in favour of - 6 - NC: 2025:KHC-D:7095 WP No. 100940 of 2025 the plaintiff till conclusion of the trial. However, the interest of the plaintiff could be safeguarded by directing the defendants to demolish any portion of the building, which appears to be an encroachment on the land belonging to the plaintiff, after conclusion of the trial. 7. It is pertinent to note that, the respondent has filed the affidavit dated 27.03.2025, which reads as under: “Affidavit Herein I, Nagaraj S/o. Bhimappa Hosakoti Aged about 36 Yrs Occ: Private Service R/o. Golabhanvi do hereby state on oath and makes this affidavit as under:- 1. That I am respondent No:1, know the facts of this case. I am swearing this affidavit for myself and on behalf of other respondents whose interest is identical and averments herein are binding on all. 2. I submit that the petitioner herein filed suit for declaration and consequential relief of injunction against us pertaining to VPC No:209 of Golabhanvi village with specific measurements and boundaries wherein I have suffered order at I.A.No:I. Being aggrieved by the same, I have preferred Μ.Α.No:10/2024 which was allowed by the Hon'ble Ist Appellate Court, Banahatti. 3. I submit that I am constructing the building within my VPC No:208 with prior permission from Gram Panchayat, Golabhanvi and prior to it, spot inspection has been conducted by the Panchayat Development Officer wherein it is crystal clear that I have not encroached any area of petitioner. - 7 - NC: 2025:KHC-D:7095 WP No. 100940 of 2025 4. I submit that I am having E-property extract with specific measurements i.e., East to West 49 Feet and North to South 15 feet 09 inches and my total measurement is 779.1 Sq. Feet (East to West 14.85 Sq. Mts and South to North 4.80 Sq. Mts) and within this area only I have been constructing in my VPC No:208 and I have no any objections to measure the both properties by technical expert at any time. 5. I submit that I am confident that I have got merits in my case and chances of success are in my favour. I undertake that if and when I proceed with any further constructions within my property VPC No:208, same shall be subject to the final outcome of the suit. I shall not claim any equity in respect of the construction that I might undertake hereinafter. I accept the same yardstick from the petitioner also. Hence, the affidavit.” 8. When there is no clarity about the extent of the land to which the petitioner and the respondents are owners, I am of the opinion that, it is not fair on the part of the Court to restrain the defendants from proceeding with the construction of the building as undertaken. It is to be made clear that, the defendants will not acquire any right, title or interest over the building that he may construct encroaching on any portion of VPC No.209. Thus, it could be concluded, the ownership of the land and the respondents, and construction of building by the respondents-defendants will be subject to the result of the suit in O.S.No.176/2024, pending before the Civil Judge and JMFC, Banahatti. The respondents are bound by this affidavit - 8 - NC: 2025:KHC-D:7095 WP No. 100940 of 2025 sworn before this Court and they are not entitled for any equity. Accordingly, I proceed to pass the following: ORDER i) The petition is dismissed. ii) However, the respondents, if they continue to construct the building, will be doing so at their own risk and it will be subject to the result of the suit in O.S.No.176/2024, pending before the Trial Court. iii) It is made clear that, if the Trial Court finds that any portion of the building that is being constructed by the respondents is an encroachment on VPC No.209, belonging to the petitioner, the respondent - defendant is not entitled for any equity, and the said portion of the building is liable to be demolished by the petitioner at his cost. In view of disposal of the petition, pending IA No.1/2025 stands disposed of. Sd/- (M.G.UMA) JUDGE VB/CT:ANB/List No.: 3 Sl No.: 2