Smt D M Latha vs H M Rudrakumar S/O D Maheswarappa
2022 Latest Caselaw 995 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF JANUARY 2022


                           BEFORE

       THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

             M. F. A. NO.4976 OF 2020 (CPC)


BETWEEN:

SMT. D.M. LATHA,
W/O RAJU G.S.,
AGED ABOUT 48 YEARS,
R/AT NO.9, BASAVESHWARA NILAYA,
1ST CROSS, RAJESHWARINAGAR,
LAGGERE, BANGALORE - 560 058.
                                              ...APPELLANT
(BY SRI. G.K. SHIVA PRAKASH, ADVOCATE)

AND:

1 . H.M. RUDRAKUMAR,
    S/O D. MAHESWARAPPA,
    AGED ABOUT 42 YEARS,
    MAMATHA APARTMENT,
    2ND FLOOR, 4TH MAIN,
    GANDHINAGAR,
    BANGALORE - 560 009.


2 . SMT. GOWRI @ GOWRAMMA,
    W/O H.M. RUDRAKUMAR,
    AGED ABOUT 45 YEARS
    R/AT NO.5,
    SRI KALESHWARA NILAYA,
    1ST FLOOR, 12TH CROSS,
    NEAR NATINAL PUBLIC SCHOOL,
                                    2


    SHIVAPURA, NELAGEDARANAHALLI,
    BANGALORE-560 073.

                                            ....RESPONDENTS
(BY SRI. SADASHIVAIAH K G, ADVOCATE FOR R-1;
    SRI. R.B. SADASIVAPPA, ADVOCATE FOR R-2)

     THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DT.25.09.2019 PASSED ON IA NO.4 IN
O.S.NO.3526/2016 ON THE FILE OF THE X ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU (CCH-26), REJECTING IA
NO.4 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC.

    THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

The appellant being aggrieved by the order dated

25.09.2019 passed on I.A.No.4 in O.S.No.3256/2016 by the X

Additional City Civil and Sessions Judge, Bengaluru

(CCH-26), has filed this appeal.

2. Brief facts leading rise to filing of this appeal are as

under:

The appellant has filed a suit for ejectment of the suit

property against respondents contending that there exist

relationship of landlord and tenant between them by virtue of

rent agreement dated 01.02.2015 for a period of 11 months

on a monthly rent of Rs.10,000/-. Further it is contended

that the respondents have not paid the rent as agreed. The

appellant constrained to file a suit for ejectment. In the said

suit, the appellant filed an application I.A.No.4 seeking for an

order of temporary injunction restraining respondent No.2

from interfering with the affairs of the tenants, who are in

possession of the remaining portion of the suit schedule

property. In support the said application, the appellant filed

an affidavit contending that the appellant was examined

herself as P.W-1 and got marked the documents. Further

contended that the respondents are in occupation of the suit

schedule property in the capacity of tenants under the

appellant and appellant claims to be the absolute owner of the

suit schedule property under the gift deed executed by

respondent No.1 in favor of appellant and further it is

contended that respondent No.2 has threatened the appellant

with dire consequences and further she has threatened the

tenants who are in occupation of their respective portion of

the entire suit schedule property. Further, the appellant

approached the Police Station but Police have refused to

receive the complaint. Hence, the appellant has no other way

except filing application seeking for an order of temporary

injunction.

2.2. The respondent No.2 has opposed the said

application by filing an objection contending that the appellant

is not the owner of the suit schedule property. The appellant

is trying to create a right by filing an application. Further, it

is contended that respondent No.1 constructed the house and

respondent No.2 being his wife and further her parents

supported financial assistance of more than Rs.15,00,000/-

(Rupees Fifteen Lakhs only) to construct the schedule house.

It is contended that the appellant has no manner of right, title

whatsoever with respect of schedule building and further it is

contended that the respondent No.1 in collusion with the

appellant have got created a registered gift deed only with an

intention to deprive the legitimate right of the respondent

No.2. It is also contended that respondent No.2 has filed a

suit challenging the registered gift deed executed by

respondent No.1 in favour of appellant. Further, it is

contended that respondent No.2 is living in the suit schedule

property and suit schedule property is in possession of the

respondent No.2. Hence, on these grounds, prays to reject

the application.

2.3. The Trial Court after hearing the parties, rejected

the application filed by the appellant vide order dated

25.09.2019. The appellant being aggrieved by the said order,

has filed this appeal.

3. Heard the learned counsel for appellant and also

learned counsel for the respondents.

4. Learned counsel for the appellant submits that the

appellant is the owner of the suit schedule property, the

appellant has let-out the suit schedule property to the tenants

and the respondent No.2 is trying to interfere with the affairs

of the tenants, who are in possession of the remaining portion

of the suit schedule property. He also further submits that

the appellant has produced the affidavit of one of the tenant

alleging that the respondent No.2 is trying to interfere with

her peaceful possession and enjoyment of the suit schedule

property. He further submits that the Trial Court has

committed an error in rejecting the application. He submits

that the impugned order passed by the Trial Court is

perverse. Hence, on these grounds, he prayed to allow the

appeal.

5. Per contra, learned counsel for respondent No.2

submits that the appellant is residing at Rajeshwarinagar and

property is situated at Nelagedaranahalli. Further, he submits

that respondent No.1 in order to deprive the legitimate right

of respondent No.2, has executed a registered gift deed in

favour of the appellant. The respondent No.1 and appellant

being brother and sister, having colluded with each other, got

created the registered gift deed. He further submits that

respondent No.2 filed a suit challenging the registered gift

deed executed by respondent No.1 in favour of appellant and

the said suit is still pending. He further submits that if really

respondent No.2 was alleging interfering with the affairs of

the tenants, it is for the tenant to file a suit for injunction but

not for the appellant. He further submits that none of the

tenants have filed any suit against the respondent No.2. He

submits that the Trial Court after considering the material on

record was justified in passing the impugned order. He

further submits that the impugned order passed by the Trail

Court is just and proper and does not call for any

interference. Hence, on these grounds, he prays to reject the

appeal.

6. Perused the records and considered the

submissions of the learned counsel for the parties.

7. It is the case of the appellant that the appellant is

the owner of the suit schedule property under the registered

gift deed alleged to have been executed by respondent No.1

in favour of the appellant. Admittedly, the suit property was

owned by respondent No.1. Respondent No.2 is the wife of

respondent No.1. There are several litigations are pending in

between respondent No.1 and respondent No.2. In order to

deprive the legitimate right of the respondent No.2, the

respondent No.1 executed registered gift deed in favour of

appellant. The appellant has not produced records to show

that respondent No.2 is tenant of the appellant. Further, the

said registered gift deed executed by respondent No.1 in

favour of appellant is challenged by respondent No.2 in

O.S.No.4589/2017, which is pending. The appellant has not

produced any record to show that the tenants are in

possession of the suit schedule property under the appellant.

The appellant has not filed affidavit. Further the appellant has

not produced any lease deed alleged to have been executed

by the tenants in favour of the appellant. Further the

appellant has admitted in the plaint that respondent No.2 is in

possession of the property and further the appellant has filed

a suit for ejectment contending that respondents No.1 and 2

are the tenants of the appellant. The appellant has clearly

admitted the possession of the respondent No.2 over the suit

schedule property. As rightly contended by the learned

counsel for the respondent No.2, the Trial Court has recorded

a finding that the appellant has failed to prove that the

respondent No.2 is allegedly interfering with the affairs of the

tenants. If there is any alleged interference by the

respondent No.2 with the tenants, the tenants have got every

right to challenged the action of the respondent No.2. In the

present case, none of the tenants have filed a suit nor lodge

any complaint against the respondent No.2 alleging that the

respondent No.2 is interfering with the possession of the

tenants. The Trial Court, after considering the material on

record, was justified in rejecting the application filed by the

appellant. I do not find any grounds to interfere with the

impugned order. Accordingly, the appeal is dismissed.

Sd/-

JUDGE

GRD