B.H. Gangaiah vs H.P. Mare Gowda

Anand Byrareddy, J.—Heard the learned counsel for the petitioner.

The petitioner is said to be the owner of the property, which is defined as follows:

"All that piece and parcel of the residential property bearing No. 35 (portion of Sy. No. 28/2 of Agrahara Dasrahalli), old Corporation No. 21, old BMP ward No. 29, now Bruhat Bangalore Mahanagar Palike ward No. 104 of Govindaraja Nagar, 1st Cross, Bangalore, measuring east to west 25 + 32/2 feet and north to south 60 feet, totally measuring 1710 square feet which including 4 ACC sheet residential houses thereon and bounded on:

East by: Sy. No. 29,

West by: Road,

North by: Hanumakka property

South by: Narayanappa property now R. Basavaiah"

It is the plaintiff''s grievance that without his knowledge, respondent nos. 1 and 2, who are husband and wife, had engineered a plot to lay claim over the petitioner''s property. Respondent no. 1 is said to have filed a suit for declaration that he was the absolute owner of the property as against his wife, the second respondent. The said suit was promptly compromised. A decree was drawn up as if respondent no. 1 was the owner of the property. The mischief was, the petitioner''s property was described in that suit and the respondents sought to lay claim over it by recourse to the above procedure. It is on learning of the mischief that the petitioner had filed an application to implead himself in the FDP proceedings, which was also instituted on the pretext that the compromise decree was not satisfied. On consideration of the petitioner''s application, which was opposed by respondent no. 1, the court below has rejected the application on a finding that the property described by the petitioner is not identical with the property that is the subject matter of the suit filed by respondent no. 1. The petitioner being aggrieved is before this Court. However, he would candidly admit that he had instituted an independent suit seeking declaration that he is the absolute owner and that the respondent seeking to lay claim by recourse to file a claim is not binding on them.

The respondents have entered appearance therein as defendants and the suit is being contested, there is an application for temporary injunction restraining the respondents from interfering with his possession, that has been affirmed and the same having been challenged in an appeal, has also been affirmed. It is in this background, that the present petitioner is before this Court.

Insofar as the finding of the court below in the impugned order that the properties are not one and the same and are different, is a finding of fact which may or may not be erroneous. However, insofar as the petitioner''s case that he has already filed a suit to protect his possession of the property and that there is an order of injunction in his favour is a sufficient protection for the petitioner insofar as his property is concerned. Therefore, the effect and scope of the finding by the trial court in pursuance to the impugned order would not in any manner take away the effect of the injunction order granted in favour of the petitioner. It is for the petitioner now to enforce the injunction order and to protect his property and the petitioner''s right and claim over the land in the pending suit filed by him. With these observations, the petition stands dismissed.