Karnataka High Court
Smt Renukamma vs Smt V B Surya Kumari on 2 July, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:24696
MFA No. 2351 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.2351 OF 2024 (CPC)
BETWEEN:
1. SMT. RENUKAMMA,
AGED 56 YEARS,
D/O LATE SRI D. MUNISHAMAPPA,
W/O LATE SRI VENKATARAMAPPA,
R/O KAVERI NAGAR, 'A' BLOCK,
R.T. NAGAR POST, GOVINDAPURA,
BENGALURU - 560 032.
2. SRI M. DODDANNA,
AGED 59 YEARS,
S/O LATE SRI D. MUNISHAMAPPA,
R/AT NO.1884, MUNESHWARA TEMPLE ROAD,
NEAR GOVERNMENT SCHOOL,
ARABIC COLLEGE POST, GOVINDAPURA,
BENGALURU - 560 045.
...APPELLANTS
(BY SRI SRINIVASAN T., ADVOCATE)
AND:
1. SMT. V.B. SURYA KUMARI,
AGED ABOUT 52 YEARS,
Digitally signed by W/O SRI H. SURESH BABU,
GEETHAKUMARI
PARLATTAYA S R/AT KAVERI NAGAR, 'A' BLOCK,
Location: High R.T. NAGAR POST, BENGALURU - 560 032.
Court of Karnataka 2. SRI FAIZULLA KHAN,
AGED 57 YEARS,
S/O LATE SRI AMEER JAN,
R/AT OLD NO.20, NEW NO.39,
MEMORIAL STREET, BHARATHI NAGAR,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI SHAKEEL AHMED, ADVOCATE FOR R2
NOTICE TO R1 IS D/W)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST
THE ORDER DATED 27.03.2024 PASSED ON I.A.NO.1 AND 2 IN
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NC: 2024:KHC:24696
MFA No. 2351 of 2024
O.S.NO.6287/2023 ON THE FILE OF THE XXIX ADDITIOANL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-30), REJECTING
I.A.NO.1 FILED U/O.39 RULE 1 AND 2 OF CPC, ALLOWING I.A.NO.2
FILED U/O.39 RULE 4 R/W SEC.151 OF CPC AND INTERIM ORDER OF
INJUNCTION DATED 29.09.2023 STANDS VACATED.
THIS APPEAL, COMING ON FOR HEARING ON IA, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though appeal is listed for consideration of I.A.no.2/2024 for vacating of interim order dated 24.04.2024, with consent of learned counsel for parties, appeal was heard for disposal.
2. Challenging order dated 27.03.2024 passed by XXIX Addl. City Civil and Sessions Judge (CCH-30), Bengaluru in O.S.no.6287/2023 on I.A.no.1 filed under Order XXXIX Rules 1 and 2 and I.A.no.2 filed under Order XXXIX Rule 4 read with Section 151 of Code of Civil Procedure, 1908 ('CPC' for short), this appeal is filed.
3. Sri Srinivasan T., learned counsel for appellants submitted that appellants were plaintiffs in suit filed for permanent injunction. In said suit, I.A.no.1 was filed by plaintiffs for temporary injunction restraining defendants from interfering with plaintiffs' peaceful possession and enjoyment of suit schedule properties. Initially, trial Court had granted an ex-parte ad-interim injunction on 29.09.2023. Upon -3- NC: 2024:KHC:24696 MFA No. 2351 of 2024 entering appearance, defendant no.2 filed written statement and application-I.A.no.2 for vacating interim order dated 29.09.2023. On hearing both applications together, trial Court under impugned order rejected I.A.no.1 and allowed I.A.no.2. Aggrieved by same, plaintiffs are in appeal.
4. It was submitted, though trial Court had taken note of records produced by plaintiffs to conclude that plaintiffs had made out prima facie case, upon referring to unsubstantiated claims of defendant no.2, trial Court had answered point no.1 regarding prima facie case in negative to reject application. Said conclusion being contrary to records and suffers from perversity, calls for interference. It was submitted, plaintiffs had stated that suit schedule properties were part of Sy.no.37/4 of Nagavara village. Originally, one Sri Doddaiah was tenant of said land. His son Sri D.Munishamappa filed Form no.7 for grant of occupancy rights and Land Tribunal granted same. Thereafter, D.Munishamappa died in year 1989. One of daughters of D.Munishamappa i.e. Smt.Yashodamma filed O.S.no.15342/2000 for partition. Said suit ended in compromise decree, wherein suit schedule properties fell to her share. Under registered gift deed dated 05.08.2020, -4- NC: 2024:KHC:24696 MFA No. 2351 of 2024 Smt.Yashodamma gifted suit schedule properties to plaintiffs. As there was some error insofar as boundary description, a rectification deed was also executed subsequently.
5. It was submitted, plaintiffs stated that they had constructed asbestos sheet roofed house therein and obtained electricity and water connection and were in possession. On other hand, defendant no.2 claimed that site no.29/1 was purchased from Smt.V.B.Suryakumary under registered sale deed dated 05.08.2023. It was submitted, Smt.V.B.Suryakumary had earlier purchased it from one Sri S. Nagaraj under registered sale deed dated 29.07.2015. It was submitted, trial Court had observed that Smt.Yashodamma had signed said sale deed as consenting witness and photographs produced indicated defendant no.2 was in possession and entered into agreement for construction. It was submitted, fact that gift deed executed by Smt.Yashodamma in favour of plaintiffs was prior to sale deed in favour of defendant no.2 was overlooked by trial Court and same had led to perverse conclusion. On above ground seeks for setting aside of impugned order.
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NC: 2024:KHC:24696 MFA No. 2351 of 2024
6. On other hand, Sri Shakeel Ahmed, learned counsel for respondent/defendant no.2 sought to justify impugned order. It was submitted on appreciation of documents produced by defendant no.2, trial Court had concluded that possession of suit schedule properties was with defendant no.2. It was submitted, by virtue of joint development agreement, defendant no.2 had begun construction and same had progressed beyond slab of ground floor and pillars on first floor. If, construction were stopped at this stage, defendant no.2 would be subjected to grave hardship. Even loss due to construction material being subjected to elements of nature and probable increase in cost of construction were also pleaded. It was submitted, defendant no.2 was facing theft of construction material and therefore, trial Court had rightly rejected application. It was submitted, admittedly there was dispute regarding title in respect of suit schedule properties. Under such circumstances, plaintiffs were not entitled for grant of temporary injunction.
7. Learned counsel fervently submitted defendant no.2 may be permitted to complete construction of ground floor and -6- NC: 2024:KHC:24696 MFA No. 2351 of 2024 reside therein subject to outcome of suit as he doesn't have a roof over his head.
8. In support of his submissions, learned counsel for defendant no.2 sought to rely upon decisions of this Court in Mandali Ranganna and Ors. v. M. Ramachandra and Ors., reported in 2010 (4) Kar.L.J 322 and in S.C. Gangadharaiah v. REMCO (BHEL), House Building Co- operative Society Limited, Bengaluru and Ors., reported in 2018 (3) Kar.L.J 552.
9. In reply, learned counsel for appellants relied upon decision of this Court in Narasingh v. K. Basavaraj, reported in 2010 (1) KCCR 346, wherein it was held where there was serious dispute regarding identity of property, it would be appropriate to direct defendant to maintain status-quo with regard to property and not put up any construction till disposal of suit.
10. Heard learned counsel and perused impugned order.
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NC: 2024:KHC:24696 MFA No. 2351 of 2024
11. From above since main ground of challenge is perversity regarding conclusions arrived at by trial Court, following point would arise for consideration:
"Whether order impugned suffers from perversity and calls for interference?"
12. Perusal of order impugned indicates that trial Court after adverting to pleadings and contentions of parties, also referred to documents relied upon and framed proper points for consideration and thereafter passed reasoned order. Main reason assigned for refusing injunction is that claim of plaintiffs' title over suit schedule properties on basis of registered gift deed executed by Smt.Yashodamma on 05.08.2020, but, sale deed dated 05.08.2023 of defendant no.2 showed that Smt.Yashodamma as a signatory. Thus, it held Smt.Yashodamma - plaintiffs' sister was aware of sale deed executed in favour of defendant no.2. Thereafter, taking note of agreement for construction of building and photographs indicating digging of borewell by defendant no.2, it answered points for consideration regarding prima facie case, balance of convenience, irreparable loss and injury against plaintiffs and rejected application. It is also seen that trial Court had taken note of dispute regarding title based on General Power of -8- NC: 2024:KHC:24696 MFA No. 2351 of 2024 Attorney by stating that same would require to be considered after evidence.
13. As stated above, when sale deed under which defendant no.2 claiming interest in suit schedule properties is dated 05.08.2023, though Smt.Yashodamma is signatory to said sale deed, plaintiffs were claiming interest in suit schedule properties under gift deed dated 05.08.2020, which is earlier. Both parties are seeking reliance on 'B-Khata'. However, as per observations of trial Court defendant no.2 was in possession based on photographs indicating digging of borewell as well as assertion by defendant no.2 about construction in progress would prima facie indicate that defendant no.2 is in possession. Thus, there is serious dispute about title with regard to suit schedule properties. In such circumstances, as this Court held in Narasingh's case (supra), it would be appropriate to direct defendant, not to put up any further construction till disposal of suit.
14. Insofar as decision relied on Mandali Ranganna's case (supra), it is seen that order rejecting applicant's claim for temporary injunction to prevent continuation of construction had received seal of approval from Hon'ble Supreme Court and -9- NC: 2024:KHC:24696 MFA No. 2351 of 2024 there was investment of crores of rupees for construction. Under such circumstance, this Court held preventing completion of construction would not be justified.
15. In REMCO's case (supra), fact that proposed construction was for establishment of a petrol-bunk, which would be subject to permissions, approvals and no objections granted by various authorities and would require to be completed within time frame, this Court had held stoppage of construction would not be justified.
16. In instant case, there is serious dispute about title. Under such circumstances, permitting defendant no.2 to complete construction would permit changing of nature of suit schedule properties irreversibly. However, as noted by trial Court, construction put up by defendant no.2 progressed upto slab of ground floor and pillars on first floor. Same would indicate that defendant no.2 would be in possession. Therefore, equity of both parties require to be balanced.
17. As noted above, rejection of application for injunction filed by plaintiffs pivots on observation that Smt.Yashodamma was signatory to sale deed in favour of
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NC: 2024:KHC:24696 MFA No. 2351 of 2024 defendant no.2, which being later than registered gift deed in favour of plaintiffs, cannot be given overriding effect. In view of serious dispute regarding suit schedule properties instead of permitting defendant no.2 to complete construction it would be appropriate to set time line for disposal of suit to balance interest of both parties. Therefore, point for consideration is answered partly in affirmative. Hence, following:
ORDER i. Appeal is allowed in part.
ii. Impugned order dated 27.03.2024 passed by XXIX Addl. City Civil and Session Judge (CCH-30), Bengaluru in O.S.no.6287/2023 on I.A.no.1 filed under Order XXXIX Rules 1 and 2 and I.A.no.2 filed under Order XXXIX Rule 4 read with Section 151 of CPC are set aside.
iii. It would be appropriate to direct defendant no.2 to maintain status-quo with regard to construction existing as on today on suit schedule properties till disposal of suit.
iv. It is however clarified that defendant no.2 would be entitled to continue curation of construction and also to take adequate measures for protection of construction material.
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NC: 2024:KHC:24696 MFA No. 2351 of 2024 v. Plaintiffs are directed to deposit sum of Rs.10,00,000/- within two months before trial Court, which would be subject to outcome of suit and in case plaintiffs were to unsuccessful can be consider to be awarded to defendant no.2 as damages.
vi. Plaintiffs are directed to deposit
Rs.5,00,000/- within four weeks and
remaining Rs.5,00,000/- within four weeks thereafter.
vii. Both parties undertake to cooperate for early conclusion of suit. Trial Court is directed to proceed with framing of ISSUES forthwith and dispose of suit within an outer limit of six months, by setting specific timeline for each stage of suit.
viii. In case of default in depositing amount as ordered, trial Court would be at liberty to pass appropriate orders regarding vacation of temporary injunction.
Sd/-
JUDGE GRD List No.: 1 Sl No.: 28