SI'.
IN THE HIGH COURT OF KARNATAKA,
DATED THIS THE 25TH DAY 01+' N0VE1\fi-'.I3E1§«,:VV':"g:'h';"()'3'.S':.(.)'
BEFOI{E.....
THE I-ION'BLE MRJUSTICE
REGULAR FIRST Nd." 1.134
BETVVEEN - ! " j
G M PRAKASH
S/O LATE G S MALL1KAHJ_UNA_IAH ' 1, ---- "
AGE 43 ._ V '
R/O NO 9, 6'?" MAIN c:4AMARA;JPET
BANGALORE IQPPEL-'tiF¥-¥=!'?'
[By Sm. I:---R.'
AND V 'V
S EHARATHRAJ S/G.S0HANRAJ'
44 YEARS .4 " '
R/O N0 34, MLAMULPET, " _ _
BANGALOREVS-.53.i--,"*. I . """ " RESPONDENT
96 01+" cpc AGAINST THE
JUDGMENT AND'---DECREE DATED: 18.6.02 PASSED IN OS
_.PI«Qj_j3..306.;/1989 THE FILE 0:?' THE XXVII ADDLCITY
cIv_ILJU13GE, BANGALORE, DISMISSING THE SUIT FOR
A. ' '-._7MANDA"DCRY "_¥.NJUNC'I'ION AND ENQUIRY INTO MESNE
-
"H
fig
THIS APPEAL COMING ON FOR HEARENG, '.H«~I_i*s..»_lnAY
nmcmmrwmnnmmxumma aMfiW'\
JUDGMENT
This appeal is directed
decree dated 18.6.2002 in.o_.s. Nop§’33o6_1is9u.fp’e’esed”‘by,
the XXVII Addl. City c1x}i1ddgeV§’ remade City,
dismissing the kandlu mandatory
injunction. l» l
2. respondents are
the In this judgment
for conveniencethe parties.a1’elreferred to their status
before the trials Conirt V ..
___his family members were the
lewfiere def” endree”iteeiPfef:§erty bearing No.114 and 115
‘_s:it;,.1ated at Marnnlplet, Bangalore —- 53. The plaintiff and
llvhiisVfarnilylrnembers sold the entire property bearing
favour of the first defendant under the
/ ‘Nix
the suit. Accordingly, the trial court dismissed’ O.S.
N02944/89.
‘7. On the basis of pleadings the trial
thefoHoudngissuesh1ClS.DRLSBGE/59flMfffhf
1. Whether the p1aintiff’tVp:r_ov’es
defendant has confstructed
on the chajja and4f”‘Ve§<cess ffporition Vvfof chajja
illegally and 'eont_raryt th'e_termVef of the sale
deed in his favoiir'?—.
2.wmm@d@m®mffiw§flfiHmmemmm
V to a deor_ee fof_Qrn«a1’1datory injunction as prayed?
C-:3
the plaintiff is entitled to mesne
I ,. . . . . . ..
4′;»~.,_JVVhat1..decree or order?
if 8; the trial Court the plaintiff examined two
mtnesvees as PW.1 and PW.2 and got marked Exs.P.1 to
The defendant got examined one Witness as DW.1
.-u
d’ .-…..l!-\’
-7-
and got marked EXs.D.1 to D9. The trial
appreciation of the pleadings, oral and
evidence held that the passage if ‘
the first defendant exclusively
same is not a common Theatrial fudrtherd’
held that plaintiff has._faile.d'”tcn._:proVe and estajblish the
Violation of the conditions’ sale deed.
Accordingly, trial: the impugned
judgmentiddisfiiissed plaintiff. Hence this
9. Heard on both the side and perused
. ~ . g_ the .{griti’1’epv appeal, papers.
not in dispute that under EX.P.3 first
de’fend_ai1t purchased property bearing No. 1 15 from the
plaintiff: and his family members. Further the first
“ldefendant do not dispute the relevant averment in
“‘”EX.P.3 relating to the common passage and the
._
CNN
-9-
documentary evidence indicating the extent offviolation
of terms contained in the sale deed.
between the parties can be be-st”th.e
assistance of a Commissionefs l’:r.ep~ort. ”
unfortunately both the parti.e.sl.haVe n_ot’1igEi};{ei’1vVlls’te1os for’
securing the report ofga Courtjéommissiorierg. In the
absence of any on record the
conclusion of trial «élefendant has not
violated EX.P.3 is an error
on this ground
also is liable to be set aside.
Forth eg reasoinsisltatedltabove the following order.
ORDER
is hereby allowed. The impugned
judgerirenfand decree of the trial Court is hereby set
The matter is remanded to the trial Court for
Adisbtosal in accordance with law. Parties are at liberty
r_’£”‘\.
.4″
-10.
to seek appointment of a Court C0mmissi0.1je.f:–._:*AIl
contentions are left Open. In View of the
suit is pending for a longtime the »tria1–‘_4Co1if’t:. ‘;sV’h.e:1″e’by ‘
directed to expedite the matter.