IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 20" DAY OF JULY, 2011 BEFORE THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA MISCELLANEOUS FIRST APPEAL NO.3679 OF 2021 (CPC) BETWEEN Smt. R.Geethamani, Wife of Madhusudana 4.G., Aged about 50 years, Residing at No.9, "Prema Mandir’, Ground Floor, 1” cross, Telecom Layout, Uttarsnaili main road, Chikkalasandra, Gowdanapalya, Bangalore - 5 061 APPELLANT (By M/s. Dua Associates) Advs:) AND: Sti Chandraiah, Son of late Channaiah, Aged about 72 years, Residing at No.164, 3° Cross, Nethayi roag, Uttarahali, ~ Bangalore South Taluk RESPONDENT (By Sri Sariket Yenaai for M/s. The Lawmen International, Advs.) This MFA Is flled under Order 43 Rule 1(1) r/w Sec. 104 of CPC, against the order dated 11.2.2010 passed onLA.No.1 in 0.S.No.8290/2010 on the file of the I Addl, City Civil & Sessions Judge, Bangalore, dismissing the 1. A.! filed under Order 39 Rules 1 and 2 ¢/w Sec.151 of CPC for TL. This appeat coming on for admission this day, the Court delivered the following JUDGMENT ‘This appeal is by the plaintiff questioning an order passed on L.A.1, filed under 0.39 Rs. and 2 CPC seeking ‘an order of temporary injunction, 4.€. to restrain. the defendant/respenident from interfering with her possession and enjoyment “of the. suit property. The Trial Court dismissed the apolication. 2. Heard. the learned counsel on both sides and perused the record, The Fespondent/defendant owned an extent of 38 guitas of lait in Sy.No.25 of Vaddarayapatya village, Uttaratalli:Hobli, Bangalore South Taluk. The land in Sy.No.25 was acquired for the benefit of Poomapraina House Co-operative Society Limited, The said society has \formed a layout of sites in the said land and the adjoining lands acquired for its benefit, Site No.639 in the fayout was allotted and conveyed by the society to its, member one Smt.Gowramma, who sold the same~to one Sri M.S.Srinatha on 10.1.2007, fromm. whom the plaintff/appellant purchased on 21.12.2069. ‘The plaintiff commenced construction of residential buildieg an the suit property after its purchase on 21.12.2009 from M.S.Srinatha, The respendent/defendant interfered with the construction work on the grourid that, he has filed W.P.10543/2008 gu stioning the acquisition of and in the said Sy.Wo. to ar extent of 38 guntas which belongs to him and that, there isan interim order in his favour, The suit and I.A-t was opposed by the defendant. According to the defendant, the suit property forms part and parcel of 38 aunt of Jand-which belongs to him being part of Sy.No25. 4, The Trial Court, noticing the fact that there is ‘10 document produced showing in which part of Sy.No.25, L38 guntas of land of the defendant was situated and also the pendency of W.P.10543/2008 filed by the defendant, wherein interim order was passed on 15.7.2009 directing maintenance of status quo in terms of the order passed in W.P.8139-41/2009/ dated 1.7.2009, ‘holding ‘that, the plaintiff has failed to make out prima facie case, passe the impugned order. 5. Indisputably, W.P.10543/2008 was dismissed by an order dated 16.6.2011 and as a redult, te interim order passed earlier, merged with tive final order and ceased to be In force w.e.f. 16.6.2011. The paintitf has produced a ietter dated 9.4.2011 of Poornaprajna House Building Co-operative Society along with a private surveyor's sketch. According to the said communication, site, Wo.639 fells within the property, which belonged to ‘one. Smit-Doddainariamma, who held 36 guntas of land prlor to’ the acquisition in its favour. Respondent has not filed” any objections to the said communication and the6. Appellant filed an affidavit placing on record the subsequent event j.e., dismissal of W.P.10543/2008 vide order dated 16.6.2011 and the fact of part construction having been made on the suit property and if the samé is rot completed, irreparable loss and injury being caused to her. She has sought for passing of temparaiy injunction as prayed in the sult and has given an undertaking that, in the event it being held that. the suit property forms part of 38 guntas in Sy.No.25 which the defendant claims as belonging to him atid the acquisition being quashed, she hhas undertaken not to clairn any equity in respect of the construction put up or may be put up on the suit property. 7. Noticing the “said events, Sri Sankat Yenagi, learreéd counsel app: wing for the respondent/defendant, ‘submitted that, the appellant/plaintiff may proceed with the construction subject to the orders that may be passed in the writ appeal which may be filed by the respondent, quéstioning the order dated 16.6.2011 passed in W.P.10543/2008 i.e. by making clear that theconstruction shall be at her risk and by placing tye affidavit of the appellant on record and with a condition that, she shall not claim any equity in case the respondent succeeds In the writ appeal which may be filed by him. 8. Keeping in view the facts noticed supra the event which has taken place after passing of the impuaned order, in my opinion, the appellant should be permitted to proceed with the construction work undertaken by her on the sult property at het risk and the cénstruction being made subject to the result of the suit, wheren she will have to establish her lawful possession and peaceful enjoyment of the svit schedule property. The weit petition having been distnissed, the respondent /defendant has no right to resist the construction work of the plaintf. In the resutt, the appeal stands disposed of, The impugned der 's modified. The appellant is at liberty to praceed With the construction work on the sult property, which Shall not be interfered with by the respondent However, any construction made on the sult proverty shallbe subject to the final result of the suit or the interim/final order that may be passed in the writ appeal which the respondent may prefer questioning the order dated 16.6.20-11 passed in W.P.10543/2008, ‘The affidavit filed by the appeliant is placed on record. In case, the respondent/defendant succeeds in the matter, the appellant/plaintift shall not be entitled to claim any equity on account of construction of bulldng on the suit property. In the circumstances of the case, parties to bear their respective costs. Ordered accarainuly, Sd/= JUDGE