Karnataka High Court

Sri. R Prakash vs Abdul Khaum Shaik on 22 February, 2022

Bench: Ashok S.Kinagi

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF FEBRUARY 2022

                        BEFORE

        THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

             M.F.A.NO.460 OF 2022 (CPC)
                        C/W
             M.F.A.NO.486 OF 2022 (CPC)

BETWEEN:

SRI. R. PRAKASH,
S/O LATE M. RAMAIAH,
AGED ABOUT 58 YEARS,
R/A NO.33, 12TH MAIN ROAD,
J.P. NAGAR, 5TH PHASE,
BANGALORE - 560 078.
                                     ...COMMON APPELLANT
(BY SRI. VARDHAMAN V GUNJAL, ADVOCATE)

AND:

1.     ABDUL KHAUM SHAIK,
       S/O MR. ABDUL GHANI,
       AGED ABOUT 46 YEARS,

2.     MRS. PRAVEEN MODI,
       W/O MR. ABDUL KHAUM SHAIK,
       AGED ABOUT 43 YEARS,

       BOTH ARE RESIDING AT No.31,
       2ND CROSS, RBI EXTENSION,
       RAJANNA LAYOUT,
       JAYANAGAR 3RD BLOCK EAST,
       BANGALORE - 560 011.
                                 2



3.   MRS. SHAHEENA JAN,
     W/O MR. SYED AKTHAR,
     AGED ABOUT 53 YEARS,
     R/AT NO.5, CHURCH ROAD,
     BASAVANAGUDI,
     BANGALORE - 560 004.
                                      ...COMMON RESPONDENTS

(BY SRI. JAYAKUMAR S. PATIL, SR. COUNSEL FOR
    SRI. A KUMARAVEL, ADVOCATE FOR C/R-1 AND 2)

      MFA.NO.460/2022 IS FILED U/O 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 16.12.2021 PASSED ON
I.A.NO.2 IN OS.NO.5992/2021 ON THE FILE OF THE XX
ADDITIONAL    CITY   CIVIL   AND    SESSIONS     JUDGE,
BENGALURU, CCH-32, ALLOWING THE I.A.NO.II FILED
UNDER ORDER 39 RULE 4 OF CPC.

      MFA.NO.486/2022 IS FILED U/O 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 16.12.2021 PASSED ON
I.A.NO.1 IN OS.NO.5992/2021 ON THE FILE OF THE XX
ADDITIONAL    CITY   CIVIL   AND    SESSIONS     JUDGE,
BENGALURU, CCH-32, DISMISSING I.A.NO.I FILED UNDER
ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

     THESE APPEALS ARE COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Both these appeals filed by the appellant

challenging the order dated 16.12.202 passed on

I.A.No.1/2022 and I.A.No.2/2022 in O.S.No.5992/2021

by the XX Additional City Civil and Sessions Judge

(CCH-32), Bengaluru, filed these appeals.

2. Brief facts leading rise to filing of these

appeals are as under:

The appellant filed a suit for declaration and

injunction as against the respondents in

O.S.No.5992/2021. In the said suit, the Trial Court had

granted an exparte ad-interim temporary injunction,

restraining the respondents from putting up any

construction over the suit schedule property. The

respondents appeared and filed written statement and

filed objections to I.A.No.1 and also filed I.A.No.2 for

vacating the interim order. The Trial Court after hearing

the parties, rejected the application filed by the

petitioner i.e., I.A.No.1 and allowed I.A.No.2 filed by the

respondents No.1 and 2. Hence, the appellant aggrieved

by the order on I.A.No.1 and I.A.No.2, filed these

appeals.

3. Heard the learned counsel for appellant and

also learned Senior counsel Sri. Jayakumar S. Patil for

respondents No.1 and 2.

4. Learned counsel for the appellant submits

there is a dispute in regard to identity of the property.

He further submits that there is a pathway to access the

burial ground. He further submits that respondents 1

and 2 are constructing the building in pathway.

He further submits that there is no sanctioned plan

obtained for construction of the building. Though,

sanctioned plan is obtained for a different site, but the

respondents 1 and 2 are trying to construct building in

the suit schedule property. He further submits that the

respondents 1 and 2 have not acquired any right, title or

interest over the suit schedule property. He further

submits that the Trial Court has wrongly recorded a

finding that the appellant has admitted the title of the

respondents No.1 and 2 in the plaint. He further submits

the Trial Court has committed an error in rejecting the

application filed by the appellant. Hence, on these

grounds, he prays to allow the appeals.

5. Per contra, learned Senior counsel for the

respondents No.1 and 2 submits that the vendor of the

respondents 1 and 2 i.e., respondent No.3 has obtained

a construction permission on 15.03.2005 and

constructed Ground floor and First floor in the suit

schedule property. Thereafter, the vendor of

respondents No.1 and 2 has sold the suit schedule

property in favour of respondents No.1 and 2 in the year

2021. Thereafter, respondents No.1 and 2 have sought

permission from BBMP to demolish the existing building

and to reconstruct the same in the suit schedule

property. The BBMP after enquiry issued permission to

demolish the existing building and to reconstruct the

same. The respondents No.1 and 2 have already

constructed substantial portion of the building over the

suit schedule property. He further submits that he has

already filed a memo before the Trial Court stating that

in case if the appellant succeeds in the suit, respondents

1 and 2 will not claim any equity. Hence, he submits

that the Trial Court is justified in rejecting the application

filed by the appellant and also justified in allowing

application I.A.No.2 filed by respondents No.1 and 2.

Hence, on these grounds, he prays to dismiss the

appeal.

6. Perused the records and considered the

submissions of the learned counsel for the parties.

7. It is not in dispute that the schedule property

was acquired by one Munithirumallapppa under the

family partition deed dated 26.05.1983. The said

Munithirumallapppa sold the schedule property in favour

of Mohammed Ilyas under registered sale deed dated

19.10.1989. On the strength of the said registered sale

deed, the property was transferred in the name of

Mohammed Ilyas. The said Mohammed Ilyas, in turn

sold the said schedule property in favour of one

Gulisheer Pasha under registered sale deed dated

25.07.2001. The said Gulisheer Pasha soled the said

property in favour of respondent No.3 under registered

sale deed dated 24.01.2004. The said property was

transferred in the name of respondent No.3.

Respondent No.3 obtained construction permission from

the BBMP on 15.03.2005, and constructed a building

consisting of Ground Floor and First Floor. The said

respondent No.3 sold the said property in favour of

respondents No.1 and 2 under registered sale deed

dated 02.01.2021, and Khatha was transferred in the

name of respondents No.1 and 2. Respondents No.1 and

2 applied for permission to demolish the existing building

and to reconstruct the same. The BBMP granted building

license on 16.06.2021 and approved sanctioned plan.

On the strength of sanctioned plan and license obtained,

respondents No.1 and 2 undertook construction and

constructed substantial portion by investing huge

money. The respondents No.1 and 2 filed a memo

before the Trial Court stating that respondents No.1 and

2 will not claim any equity, in case if the appellant

succeeds in the suit. The appellant has not challenged

the sale deed executed in favour of respondents No.1

and 2 and also construction permission granted in favour

of respondents No.1 and 2. As observed above,

respondents No.1 and 2 have already constructed

substantial portion in the suit schedule property. At this

stage, if the respondents No.1 and 2 are restrained from

making further construction, respondents No.1 and 2

would be put to irreparable loss and injury.

8. The Hon'ble Apex Court in the case of ECE

INDUSTRIES LIMITED V/S S.P.REAL ESTATE DEVELOPERS

P.LTD., reported in (2009) 12 SCC 776, has held as

under:

"26. It is well settled that when construction has been made on a land, which is of

considerable magnitude, and when the plaintiff shall not face any substantial injury, if no order of injunction is granted because of payment/deposit of the entire amount payable by the defendant to the plaintiff under the agreement, though belatedly, we are of the view that the Court will not, as a matter of course, pass an order of injunction against the other party restraining the other party from raising any construction on the suit property till the disposal of the suit.

27. If ultimately, the suit filed by the appellant-plaintiff is decreed, he can be compensated in damages or the defendants/respondents may be directed to pull down the construction and deliver vacant possession to the plaintiff/appellant when no equity can be claimed for such construction by the respondents-defendants.

28. On the other hand, in our view, if at this stage, an order of injunction is granted against the respondents-defendants from proceeding with further construction in the suit property, it will undoubtedly destroy the construction already made by the respondents- defendants and the respondents-defendants will

suffer irreparable loss and injury for not allowing them to make construction on the suit property."

have already constructed substantial portion of building

and he has produced the photographs. From perusal of

the photographs, the respondents No.1 and 2 have

already constructed a substantial portion of building.

Further, respondents No.1 and 2 have already filed a

memo before the Trial Court stating that in case, if the

appellant succeeds in the suit, respondents 1 and 2 will

not claim any equity. In view of the same, the Trial

Court is justified in holding that the appellant has failed

to establish prima-facie, balance of convenience and

irreparable loss. I do not find any grounds to interfere