Bangalore Development Authority vs Mr. Rudranarasimha Murthy
2021 Latest Caselaw 62 Kant

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF JANUARY 2021

                        BEFORE

   THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

MISCELLANEOUS FIRST APPEAL NO.1155 OF 2020 (CPC)


BETWEEN:

BANGALORE DEVELOPMENT AUTHORITY
T.CHOWDAIAH ROAD
KUMARAPARK WEST
BANGALORE - 560 020
REP. BY ITS CHAIRMAN
                                           ... APPELLANT

[BY SRI. SACHIN B.S., ADVOCATE (THROUGH VIDEO
CONFERENCE)]


AND:

MR. RUDRANARASIMHA MURTHY
S/O LATE Y.C. ANKAPPA
AGED ABOUT 72 YEARS
R/AT NO.295, 25TH CROSS
6TH CROSS, JAYANAGAR
BANGALORE - 560 082
                                          ... RESPONDENT
(BY SRI. SHISHIRA AMARANATH AND VISHWANATH
VENKATESH, ADVOCATES)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
04.11.2019 PASSED ON IA.NO.3 IN O.S.NO.6266/2018, ON THE
FILE OF THE XLI ADDITIONAL CITY CIVIL JUDGE, BENGALURU
                              2


(CCH-42), PARTLY ALLOWING THE I.A.NO.3 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE
FOLLOWING:


                        JUDGMENT

This appeal is filed by the defendant assailing the

Order dated 04.11.2019 passed by the 41st Additional City

Civil Judge, Bengaluru (CCH-42) in OS No.6266/2018, by

which an application filed for temporary injunction was

allowed in part and the parties were directed to maintain

status-quo.

2. It is seen from the plaint which is placed on

record that the respondent herein filed OS No.6266/2018

for permanent injunction in respect of a residential site and

contended that he was allotted the said site by the

appellant herein and was placed in possession in terms of

the possession certificate dated 08.10.1985 and that he

had constructed a building thereon. He claimed that the

construction so put up was after obtaining the sanction

plan from the competent authority in the year 1997 and

that the plaintiff had been paying the property tax in

respect of the aforesaid property. The plaintiff claimed

that on 04.08.2018, the officials of the appellant along

with other goons, tried to damage the building existing on

the schedule property and thus, he sought to protect his

possession by filing the present suit for injunction. Along

with the suit, he also sought for temporary injunction

restraining the appellant herein from interfering with the

possession over the suit property.

3. The appellant herein contested the suit and

contended that the documents relied upon by the

respondent herein were all fraudulent and an enquiry, in

that regard, was conducted and it was found that the

respondent herein had not filed any corresponding

application seeking allotment of a site and that the sale

deed and other documents were obtained fraudulently.

4. Learned Counsel for the appellant brought to the

notice of this Court the statement of the respondent

recorded on 4.9.2012 wherein he stated that a person

named Nagaraju, claiming to be an employee of the

appellant, had received a sum of Rs.1,00,000/- from the

respondent to obtain possession certificate in respect of

the property in question and had also conspired in

executing the sale deed. The learned Counsel also brought

to the notice of this Court the cancellation deed dated

1.3.2016 by which the alleged fraudulent sale deed in

favour of the respondent was cancelled. The learned

Counsel also brought to the notice of the Court that the

suit property was allotted to a third party on 25.7.2016.

The learned Counsel stressed on the finding of the Court

below that the respondent-plaintiff was not in possession

of the property and therefore, he contended that the Court

below was not justified in directing the parties to maintain

status quo.

5. It is seen from the plaint that the respondent-

plaintiff claimed that he was allotted a site and

consequently, was placed in possession in terms of a

possession certificate dated 8.7.1985. He also claimed

that a lease cum sale agreement was executed on

8.7.1991 which was registered on 10.7.1991. He also

claimed that he constructed a building after obtaining

requisite plan from the competent authority on 29.3.1997

and that the property in question was assessed to tax by

Bruhat Bengaluru Mahanagara Palike on 5.2.1992 and that

he had been paying tax till the year 1998. He contended

that the appellant-defendant and its officials were

attempting to interfere with the possession of the

respondent-plaintiff over the suit property. The written

statement filed by the appellant-defendant before the

Court below indicates that the land in question was

allotted to one Kamakshamma and a sale deed was

executed on 25.7.2016 and possession of the suit property

was handed over on 26.7.2016. It is stated that the

appellant had demolished the unauthorised construction

put up by the respondent on 3.8.2018 and 4.8.2018 and

handed over possession of the suit property to Smt.

Kamakshamma.

6. It is not in dispute that the sale deed executed by

the appellant-defendant in favour of the respondent-

plaintiff was outstanding and it was incumbent upon the

appellant-defendant to have taken necessary steps for

cancellation of the sale deed as held by this Court in K

RAJU VS. BANGALORE DEVELOPMENT AUTHORITY

reported in ILR 2011 KAR 120. However, the appellant-

defendant had unilaterally cancelled the sale deed

executed in favour of the respondent-plaintiff and had

demolished the construction over the suit property. Since

the case presented a triable issue as to whether the

documents relied upon the by respondent-plaintiff were

genuine or not, the Court below was justified in directing

the parties to maintain status quo in respect of the suit

property. I do not find any error in the reasoning adopted

by the Court below to maintain status quo. There is no

merit in this appeal and the same is dismissed.

Sd/-

JUDGE

GH/Cs