Smt. Sharada vs Sri Prakash Y
2021 Latest Caselaw 5638 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF DECEMBER 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

         WRIT PETITION NO.7334/2021 (GM-CPC)

BETWEEN :

        SMT. SHARADA,
        W/O SRI. K. MAHADEVAIAH,
        AGED ABOUT 50 YEARS,
        R/AT NO. 130, 6TH CROSS,
        2ND MAIN, AZAD NAGAR,
        CHAMARAJPET, BENGALURU - 560 018.
                                            ... PETITIONER
(BY SMT. SUNITHA.H.SINGH, ADVOCATE)
AND :

        SRI. PRAKASH.Y,
        S/O LATE SRI.YERRAPPA,
        AGED ABOUT 33 YEARS,
        R/AT NO.6, 4TH CROSS,
        ANJANA NAGARA,
        MAGADI MAIN ROAD,
        VISHWANEEDAM POST,
        YESHWANTHPURA HOBLI,
        BENGALURU NORTH TALUK,
        BENGALURU - 560 091.
                                   ... RESPONDENT
(BY SRI.K.SHASHIDHARA, ADVOCATE FOR C/R)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER PASSED ON 10.03.2021 IN M.A.No.56 OF 2018
ON THE FILE OF THE HON'BLE PRINCIPAL SENIOR CIVIL
JUDGE AT BENGALURU RURAL DISTRICT AND SET ASIDE
                               2



THE ORDER PASSED ON 24.04.2018 ON I.A. No.1 FILED IN
O.S. No.683 OF 2017 ON THE FILE OF THE III ADDITIONAL
CIVIL    JUDGE,     BENGALURU     RURAL      DISTRICT,
BENGALURU, AND GRANT THE PETITIONER SUCH OTHER
AND FURTHER RELIEFS AS THIS HON'BLE COURT DEEMS
FIT UNDER THE CIRCUMSTANCES OF THE CASE, ETC.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

                          ORDER

The petitioner, who is the defendant in O.S.

No.683/2017 on the file of the III Additional Civil Judge,

Bengaluru Rural District, Bengaluru [for short, 'the civil

Court'], has impugned the civil Court's order dated

24.04.2018 as also the order dated 10.03.2021 in M.A.

No.56/2018 on the file of the Principal Senior Civil

Judge, Bengaluru Rural District, Bengaluru [for short,

'the appellate Court'].

2. The civil Court by its order dated 24.04.2018

has allowed the respondent's application [I.A. No.I]

under Order XXXIX Rules 1 and 2 of the Code of Civil

Procedure, 1908 [for short 'CPC'] restraining the

petitioner from interfering with the respondent's

peaceful possession and enjoyment of the immovable

property, which is described as site bearing No.19,

Assessment No.134, situated at Ward No.72,

Kempegowda Nagara, 5th 'A' Cross, Herohalli village,

Yeshwanthapura Hobli, Bengaluru North Taluk,

Bengaluru [the subject property]. The petitioner's appeal

against this order in M.A. No.56/2018 is rejected by the

appellate Court by its order dated 10.03.2021.

3. The petitioner and the respondent assert

ownership of the property identified as site No.19 in

Sy.No.134 measuring 01 acre 17½ guntas of Herohalli

village, Yeshwanthapura Hobli, Bengaluru North Taluk,

Bengaluru [the subject property]. The respondent

contends that the original owner of this larger land in

Sy.No.134 of Herohalli village, Yeshwanthapura Hobli,

Bengaluru North Taluk, Bengaluru has transferred the

subject property in his favour under the sale deed dated

20.06.2017. The petitioner, while admitting the original

ownership of this larger land, asserts that the original

owner has transferred this larger land in favour of

Sri.Narasimhaiah and Sri.Anjinappa who have executed

a power of attorney in favour of Smt.Shanthamma in

the year 2003 for the subject property after forming a

residential layout in the said larger property.

Smt.Shanthamma has transferred the subject property

in favour of the petitioner under the sale deed dated

19.12.2003.

4. The petitioner has filed her suit for temporary

injunction in O.S. No.208/2008 against her vendors,

Sri.Narasimhaiah and Sri.Anjinappa. This suit is

dismissed and the petitioner has filed her appeal in

Regular Appeal No.27/2014. This appeal is pending

consideration but there is no interim order in favour of

the petitioner. The civil Court has allowed the

respondent's application for temporary injunction

observing that the petitioner, who is unsuccessful in

establishing her possession in a suit commenced by her

against her vendors, cannot defeat the respondent's

case for injunction. The civil Court's order in these

lines is confirmed by the appellate Court.

5. Ms. Sunitha H. Singh, the learned counsel for

the petitioner, placing reliance upon the judgment dated

23.07.2013 in O.S. No.208/2008, submits that the

respondent's application could not have been allowed

because there is a judgment against the petitioner in

her suit against her vendors. She emphasizes that the

civil Court, in such a suit, has rejected the petitioner's

claim for permanent injunction holding that her vendors

are able to establish that the larger land in Sy.No.134 of

Herohalli village, Yeshwanthapura Hobli, Bengaluru

North Taluk, Bengaluru is an agricultural land

comprising of a farm house, and therefore, the

petitioner, who asserts that this larger land is developed

into a residential layout, cannot succeed. The petitioner

has challenged this finding in R.A. No.27/2014 and the

finding that the petitioner is not in possession because

her vendors have established that the larger land is an

agricultural land, will have to be re-examined by the

appellate Court in the light of the evidence on record.

6. Ms. Sunitha Singh emphasizes that both the

civil and appellate Courts should have examined and

decided whether the prima facie case for grant of

permanent injunction is established by the respondent,

when it is undisputed inter se the petitioner and the

respondent that the larger land is developed into a

layout with each of them claiming the same property

identified as a site.

7. This Court must opine that both the civil and

appellate Courts have relied upon the judgment dated

23.07.2013 in the petitioner's suit in O.S. No.208/2008

without examining whether the respondent has

established the prima facie case on the strength of his

own assertions. The petitioner relies upon the sale deed

which is executed in the year 2003 asserting certain

antecedents/facts such as development of the larger

land into a residential layout and sale of one of the sites

in such a layout by a power of attorney on behalf of her

vendor Sri.Narasimhaiah and Sri.Anjinappa. The

respondent relies upon a much later sale deed, which is

executed in the year 2017 by the original owner, and

without disputing that the larger land is developed into

a residential area.

8. On perusal of the judgment dated 23.07.2013

in O.S. No.208/2008, this Court must opine that the

question of petitioner's possession of the subject

property should have been examined in the light of the

relative case in the present proceedings. Further, the

civil and appellate Courts have allowed the respondent's

application without such examination and the

respondents application is allowed only because the

petitioner's suit is rejected. The respondent has,

indeed, made out a prima facie case for trial by

establishing that both the petitioner and the respondent

have rival claims under the same owner. However, on

the question of balance of convenience and irreparable

injury, this Court must observe that with the rival

claims to the subject property yet to be decided on

merits in the present suit and the petitioner's earlier

suit in O.S. No.208/2008, pending in appeal, the

parties must be directed to maintain status quo.

9. The learned counsel for the petitioner, when

queried, responds that the subject property is still a

vacant site but for a small construction with amenities

such as power and water supply. This Court, must

therefore, interfere with the impugned orders and

modify them to direct both the petitioner and

respondent to maintain status quo without changing the

nature of the subject property until the final disposal of

the suit.

The petition stands disposed of accordingly,

directing both the petitioner and the respondent to

maintain status quo with regard to the subject property

until the final disposal of the suit.

SD/-

JUDGE

RK/-

Ct: SN