M/S Velpula Builders vs Smt Lakshmamma
2021 Latest Caselaw 1321 Kant

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 IN THE HIGH COURT OF KARNATAKA, BENGALURU

     DATED THIS THE 22ND DAY OF JANUARY 2021

                     BEFORE

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

MISCELLANEOUS FIRST APPEAL No.4717/2020(CPC)

BETWEEN:

M/S VELPULA BUILDERS,
A PARTNERSHIP FIRM,
NO.41, PARTHIV PLAZA,
1ST FLOOR, SHIVAPURA,
KATTIGENAHALLI,
BAGALURU MAIN ROAD,
IAF POST, BENGALURU - 560 063.
REP. BY ITS PARTNER
K.V. NARASIMHA REDDY.
                                      ...APPELLANT

(BY SRI. HARSHA D. JOSHI, ADVOCATE)

AND:

1.     SMT. LAKSHMAMMA,
       W/O LATE RAMANJANAPPA,
       D/O LATE HANUMANTHAPPA,
       AGED ABOUT 60 YEARS,
       R/AT BASHATAHALLI VILLAGE,
       KASABA HOBLI, DODDABALLAPURA TALUK,
       BENGALURU RURAL.

2.     SMT. BHAGYAMMA,
       D/O LATE HANUMANTHAPPA,
       AGED ABOUT 58 YEARS,
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3.    Smt. Papamma,
      D/O LATE HANUMANTHAPPA,
      AGED ABOUT 56 YEARS,

4.    SMT. GOWRAMMA,
      D/O LATE HANUMANTHAPPA,
      AGED ABOUT 54 YEARS,

5.    SRI. H.RAJANNA,
      S/O LATE HANUMANTHAPPA,
      AGED ABOUT 49 YEARS,

6.    SRI. H.RAMANNA,
      S/O LATE HANUMANTHAPPA,
      AGED ABOUT 49 YEARS,

7.    SRI. LAKSHMANA,
      S/O LATE HANUMANTHAPPA,
      AGED ABOUT 49 YEARS,

      RESPONDENT NOS. 2 TO 7 ARE
      R/AT JAKKUR VILLAGE,
      YELAHANKA HOBLI,
      BENGALURU NORTH TALUK.

8.    SMT. PAPAMMA,
      W/O LATE MUNISWAMAPPA,
      AGED ABOUT 86 YEARS,
      R/AT DOOR NO.1, 1ST MAIN,
      1ST CROSS, CHANDRAPPA BUILDING,
      VISHWESHWARAIAH ROAD,
      BYATARAYANAPURA,
      BENGALURU - 560 092.

9.    SRI. J.M. CHANDRAPPA,
      S/O LATE MUNISWMAPPA,
      AGED ABOUT 51 YEARS,

10.   SMT. JAYANTHI CHANDRAPPA,
      W/O J.M. CHANDRAPPA,
      AGED ABOUT 51 YEARS,
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      RESPONDENT NOS. 9 AND 10 ARE
      R/AT NO.864, 'D' BLOCK,
      NEAR CAVERY PUBLIC SCHOOL,
      SHAHAKARNAGAR,
      SHAHAKARNAGAR POST,
      BENGALURU - 560 092.

11.   SMT. PRABHAVATHI,
      W/O J.M. CHANDRAPPA,
      AGED ABOUT 49 YEARS,

12.   ROOPA,
      D/O J.M. CHANDRAPPA,
      AGED ABOUT 25 YEARS,

      RESPONDENT NOS. 11 TO 12 ARE
      R/AT NO.2165, 15TH CROSS,
      8TH MAIN, NEAR BWSSP TANK,
      SHAHAKARNAGAR, 'D' BLOCK,
      BENGALURU - 560 092.

13.   SRI. J.M. RAJANNA,
      S/O MUNISWAMAPPA,
      AGED ABOUT 61 YEARS,

14.   B.M. RADHA,
      W/O J.M. RAJANNA,
      AGED ABOUT 46 YEARS,

15.   J.R. BHARATH GOWDA,
      S/O J.M. RAJANNA,
      AGED ABOUT 27 YEARS,

16.   SRI. J.R. DEEKSHIT GOWDA,
      S/O J.M. RAJANNA,
      AGED ABOUT 24 YEARS,

      RESPONDENT NOS.13 TO 16 ARE
      R/AT JAKKUR VILLAGE,
      YELAHANKA HOBLI,
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      BENGALURU NORTH TALUK,
      BENGALURU.

17.   SMT. SUMITHRA,
      D/O LATE MUNISHAMAPPA,
      AGED ABOUT 59 YEARS,

18.   SMT. JAYASHREE S.,
      GRANDFATHER OF
      LATE MUNISHAMAPPA,
      AGED ABOUT 40 YEARS,

      RESPONDENT NOS.17 AND 18 ARE
      R/AT NO.1, 1ST MAIN, 1ST CROSS,
      CHANDRAPPA BUILDING,
      VISHWESHWARAIAH ROAD,
      BYATARAYANAPURA,
      BENGALURU - 560 092.
                                   ... RESPONDENTS

(BY SRI.M.VENKATAPPA, ADV. FOR C/R1 TO R7;
     NOTICE TO R8 TO R18 DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE
ORDER DATED 01.10.2020 PASSED ON I.A.NO.1 IN
O.S.NO.9187/2019 ON THE FILE OF THE XX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, ALLOWING THE I.A.NO.1 FILED UNDER
ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

     THIS MISCELLANEOUS FIRST APPEAL COMING
ON FOR ADMISSION, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-

                      JUDGMENT

This appeal by the defendant No.12 in

O.S.No.9187/2019 is directed against the impugned

order dated 01.10.2020 passed by the XX Additional

City Civil and Sessions Judge, Bengaluru, whereby

the application I.A.No.I filed by the plaintiffs was

allowed thereby restraining the appellant from putting

up further super-structure in the plaint schedule

property till disposal of the suit.

2. Heard, learned counsel Sri.Harsha D.Joshi,

for appellant and learned counsel Sri.M.Venkatappa,

for caveator/respondent Nos.1 to 7 and perused the

material on record.

3. It is not in dispute that the respondent

Nos.1 to 7 were plaintiffs in the aforesaid suit filed for

possession and permanent injunction and other reliefs

in respect of the suit schedule immovable property.

In the plaint, the suit property was described as

Sy.No.37/2 of Shivanahalli village, Yelahanka Hobli,

Bengaluru North Taluk, measuring 27 guntas out of

total extent of 2 acres 16 guntas. The appellant

herein was arrayed as defendant No.12 in the said

suit which was contested by him by filing written

statement as well as objections to the aforesaid

I.A.No.I. By the impugned order, trial Court allowed

the said application thereby restrained the appellant

from putting up further super structure in the

aforesaid plaint schedule property till disposal of the

suit..

4. Learned counsel for appellant submits

that, the appellant has filed an affidavit of

undertaking dated 20.01.2021 to the effect that the

appellant will not claim any equity in respect of the

construction put up by him on suit schedule property

which would be subject to the result of the suit. The

said affidavit dated 20.01.2021. reads as under:

"I. K.V.NRASIMHA REDDY, aged about 48 years, partner of and authorized signatory of M/s Velpura Builders, No.41, Partiv Plaza, 1st Floor, Shivapura, Kattigenahallli, Bagalur Main Road, IAF Post, Bangalore - 560 003, do hereby solemnly affirm and state on oath as under:

1. I submit that, I am the partner of appellant firm in the above case and I am well conversant with the facts of the case as such I am competent to swear to this affidavit.

2. The respondents 1 t 7 in the appeal memoranda are plaintiffs and the plaintiffs had filed the suit seeking relief of possession and in prayer C of the plaint, the plaintiff have also sought for a relief of mandatory injunction directing the defendants to demolish the existing super structure and deliver possession of the same.

3. I submit that, there is a dispute with regard to the actual physical possession and in so far as the defendants are concerned the defendants are in physical possession of 2 acres 16 guntas of land in Sy.No.37/2 of Shivanahalli Village, Yelahanka Hobli, Bengaluru North Taluk.

4. I submit that, the defendants 1 to 11 have entered into an Joint Development Agreement and after the land having been converted, the

Defendant No.12, the developer has put up construction and the construction that has been put up is as per the statutory requirements and as per the approved plan.

5. I submit that, the entire construction having been put up a dispute has been raised by the plaintiffs. The trial Court by impugned order dated 01.10.2020 allowed the application filed by the plaintiffs under order XXXIX Rule 1 and 2 but however at para 28 of the impugned order the trial Court allowed the defendant to put up construction over 1 acre 37 guntas of land.

6. I am instructed to submit that, the construction has now been completed and that the deponent who is arrayed as defendant no.12 in the suit and the appellant herein is ready to abide by the conditional order on the grounds of equity.

7. I submit that, in case the plaintiffs were to succeed in this suit and subject to the orders being passed in this suit and without prejudice to the

contesting defendant's right to further appeal in case of any judgment being passed against the defendant by the trial Court the defendant would undertake as follows.

8. I submit that, the defendants would on the principles of equity agree to monetarily compensate the plaintiffs and further abide that in case of feasibility, the defendant No.12 would not claim any equity over the structure that is standing in so far as the land over which the plaintiff are claiming to have a share that has fallen into their lap by means of a partition which issue is sub-judice."

5. Per contra, learned counsel for respondent

Nos. 1 to 7/plaintiffs submits that if the appellant is

permitted to alienate or encumber the plaint schedule

property, respondents would be put to irreparable

injury and hardship. It is also submitted that, in spite

of order of temporary injunction that was in force

during the pendency of the suit, the appellant has put

up illegal construction pursuant to which plaintiffs

have filed Misc.No.667/2020 under Order 39 Rule 1

and 2 of CPC and that the same is pending

adjudication.

6. In view of the aforesaid facts and

circumstances and having regard to the rival

contentions urged by the parties and since the

appellant has filed the aforesaid affidavit of

undertaking, I deem it just and proper to dispose of

this appeal by modifying the impugned order passed

by the trial Court and by imposing certain conditions.

In the result appeal is disposed of. Impugned

order dated 01.10.2020 is hereby modified. The

appellant is permitted to complete the construction on

the plaint schedule property in terms of the affidavit

of undertaking filed by him referred supra.

The appellant is restraining from alienating and

encumbering or creating third party rights over the

suit schedule property, pending disposal of the suit.

The trial Court is directed to dispose of the suit

as expeditiously as possible and at any rate not later

than 30th June, 2021.

All the rival contentions urged by both the

parties are kept open and no opinion is expressed on

the same.

Sd/-

JUDGE

gpg/-