Sri Mylaraiah vs Smt Muni Siddamma
2022 Latest Caselaw 11034 Kant

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        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF JULY, 2022

                          BEFORE

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

       MISCELLANEOUS FIRST APPEAL NO.3839/2022 (CPC)

BETWEEN:

SRI. MYLARAIAH
S/O LATE MALLAPPASHETTY
AGED ABOUT 59 YEARS
R/AT NO.1161
JEEVANA, 2ND FLOOR
12TH CROSS, 1ST STAGE,
1ST PHASE, CHANDRA LAYOUT
BANGALORE - 560 040.
                                      ... APPELLANT
(BY SRI. SHASHI KIRAN SHETTY, SENIOR ADVOCATE FOR
    SMT. LATHA S SHETTY, ADVOCATE)

AND:

SMT. MUNI SIDDAMMA
W/O LATE VEERAIAH
AGED ABOUT 68 YEARS
R/AT NO.2074/A, 2ND FLOOR
38TH EAST, B CROSS
9TH BLOCK JAYANAGAR
BENGALURU - 560 053.
                                   ... RESPONDENT
(BY SRI.M.R.RAJAGOPALA, SENIOR ADVOCATE FOR
    SRI C.P. PUTTARAJU, ADVOCATE)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
23.03.2022 PASSED ON I.A. NOs.1 AND 2 IN O.S.NO. 488/2022
ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND
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SESSIONS JUDGE, BENGALURU (CCH NO.3), ALLOWING THE
I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH
SECTION 151 OF CPC AND DISMISSING THE I.A.NO.2 FILED
UNDER ORDER 39 RULE 4 READ WITH SECTION 151 OF CPC.

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

                       JUDGMENT

The defendant in O.S.No.488/2022 on the file of

the XV Additional City Civil and Sessions Judge,

Bengaluru (for short, 'the civil Court') has filed this

appeal. The civil Court by the impugned order dated

23.03.2022 has allowed the respondent's application

(I.A.No.1) under Order XXXIX Rule 1 and 2 read with

Section 151 of the Code of Civil Procedure, 1908 (for

short, 'CPC') restraining the appellant from putting up

any construction in the suit schedule property - the site

bearing No.75 (measuring 30 feet x 40 feet),

curved/formed in a portion of Sy.No.48 of Nagarabhavi

Village, Yeshawanthpura Hobli, Bengaluru North Taluk,

Bengaluru (the subject property).

2. The civil Court has principally offered the

following reason in support of its decision to allow the

application and restrain the appellant:

"13. So comparing these two documents of both plaintiff and defendant it shows that the Vendor of the defendant though challenged the Compromise Decree effected in the name of plaintiff, which is dismissed by the Addl. City Civil and Session Judge, Bangalore on 09.03.2009. So the Compromise suit challenged by the Thimmaiaha in the year 1998 by filing O.S.No.9143/1998 and it is dismissed on 09.03.2009. So considering the documents the question arise what is the right accrued to the Thimmaiah on 18.03.2005 to execute the sale deed in favour of defendant. The defendant also not produced any documents to show that the right accrued to his Vendor. But, he relied the recital in the sale deed that the Vendor Thimmiaha has got the property on 19.03.1962 through his father. But, if it is so that prevented the defendant to produce the said partition deed or the said documents which shows his name mutated in the document. Which are all required for consideration at the time of trial. So unless and until trial take place it is not proper to come to any conclusion regarding ownership of the parties over the property. Moreover, the Thimmaiah

challenged the Compromise Decree before the Hon'ble High Court in RFA. So unless until he get right over the property he has no right to construct in the suit property. Because, the title documents of both the parties are not clear to say that either plaintiff or defendant is owner of the property. But, prima facie we can presumed that plaintiff may be the owner of the property as per the Compromise Decree of the Court. Unless and until it is set aside by the Hon'ble High Court of Karnataka in RFA. So considering this aspect the defendant has no right to construct over the property till adjudication of their rights."

3. The parties to the proceedings for

convenience are referred to as they are arrayed before

the civil Court. The plaintiff has filed this suit in

O.S.No.488/2022 for grant of temporary injunction

restraining the defendant from "making any construction

in the suit schedule property" alleging that though she

tried to stop the construction in the subject property,

the defendant has continued with the illegal

construction.

4. The plaintiff asserts that certain persons

who had purchased site in Sy No.48 of Nagarabhavi

Village, Yeshawanthpura Hobli, Bengaluru North Taluk,

Bengaluru have commenced suit in O.S.No.7032/1997

for partition and allotment of one common share in

such land. This suit has concluded in a compromise,

and she is allotted the subject property in such

compromise. The compromise decree dated 04.06.1998

is registered as required in law on 01.08.1998 with the

concerned Sub-Registrar. Sri. Thimmaiah (the original

owner of the land in Sy.No.48 of Nagarabhavi Village,

Yeshawanthpura Hobli, Bengaluru North Taluk,

Bengaluru) has commenced the suit in

O.S.No.9143/1998 impugning the compromise decree.

The plaintiff is arrayed as the twenty eighth defendant.

5. The plaintiff further asserts that this suit in

O.S.No.9143/1998 is dismissed on 09.03.2009 and

Sri. Thimmaiah's appeal before this Court in

R.F.A.No.698/2009 is pending. This Court has directed

the parties to maintain status quo and this order

continues to be in force. The defendant has no manner

of right, title or interest in the subject property and

there is an effort to unlawfully occupy the same.

6. On the other hand, the defendant, without

disputing that Sri. Thimmaiah is the original owner of

the land in Sy.No.48 of Nagarabhavi Village,

Yashawanthpura Hobli, Bengaluru North Taluk,

Bengaluru and the subject property is part of this land,

contends that Sri Thimmaiah has executed a power of

attorney and with a contemporaneous affidavit in his

favour on 27.12.1993. This power of attorney is

executed not only for the subject property but also the

adjacent property in site No.40. The power of attorney

is executed jointly in his favour and Sri. M.V.Devaraj.

Notwithstanding the transaction under these

documents, including delivery of possession of the

subject property thereunder, certain third persons have

commenced suit in O.S.No.7032/1997 admitting that

the land in Sy.No.48 of Nagarabhavi Village,

Yashawanthpura Hobli, Bengaluru North Taluk,

Bengaluru is developed into a residential layout and

only some of the parties have approached the Court as

plaintiffs. Sri. Thimmaiah is arrayed as the tenth

defendant but showing him to be represented by

Sri. H.Veeriah and Sri. M.Subramanya as his attorneys.

7. The defendant further contends that this

suit in O.S.No.7032/1997 is compromised within a

short time even before completion of service of notice in

the normal course and in this compromise, the subject

property is purportedly allotted to the plaintiff. In the

meanwhile, Sri. Thimmaiah, who could not have known

about the suit or the registration of the compromise

decree, has executed sale deed on 18.03.2005 in

performance of the assurance as contained in the

affidavit and the power of attorney dated 27.12.1993.

The appellant thereafter has obtained revenue entries

with the BBMP and has also obtained sanction for

commencement of construction in the month of June

2021. He has commenced construction on securing

home loan.

8. Sri. Shashi Kiran Shetty, the learned Senior

counsel, after drawing this Court to the rival pleadings

and the claims to the subject property, urges the

following grounds in support of the appeal:

a) The plaintiff has filed the suit for permanent

injunction against construction admitting the

defendant's possession of the subject property. The

plaintiff has admitted the defendant's possession of the

subject property is beyond dispute because of the

categorical statement that even two [2] days prior to the

commencement of the suit she could not stop the

defendant from proceeding with the construction. If

possession is admitted, a suit for permanent injunction

would not lie and if the suit does not lie, the application

for interim injunction cannot be sustained.

b) The defendant claims title and possession of

the subject property not just under the sale deed dated

18.03.2005 but also under transactional documents

viz., General power of attorney and affidavit dated

27.12.1993. If the defendant was relying upon just

these documents, the defendant's claim of possession

and title to the subject property could be frowned upon,

but there is a concluded sale deed. The defendant's

claim and possession is anterior in time.

c) The plaintiff is only relying upon a

compromise decree and that decree cannot confer better

title, especially in view of the defendant's documents.

The defendant claim over the subject property is under

a sale deed executed by the undisputed owner of the

subject property. Therefore, the defendant would be the

true owner of the subject property. If the defendant is

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the true owner there cannot be an injunction against a

true owner.

d) The defendant has admittedly commenced

construction, which is stopped. The civil Court should

have necessarily considered the plaintiff's request for

temporary injunction in the light of prima facie case (a

case for trial) and as against the requirements of

balance of convenience and irreparable injury. The

defendant would be put to irreparable injury if

construction is stopped as he will have to bear the

burden of loan without the use and enjoyment of the

subject property.

e) The defendant's title to the subject property

would not be howsoever nebulous because

Sri. Thimmaih's suit in O.S.No.9143/1998 is dismissed.

The dismissal of the suit is primarily on the ground that

as of the relevant date Sri. Thimmaiah admittedly had

not retained title to any portion of the land in Sy.No.48

of Nagarabhavi Village, Yashawanthpura Hobli,

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Bengaluru North Taluk, Bengaluru. As such, neither

the dismissal nor the order of status quo granted by this

Court in R.F.A.No.698/2009 would be a relevant factor.

9. Sri. M.R.Rajagopal, the learned Senior

counsel for the plaintiff, prefaces his rebuttal

submissions relying upon the settled proposition that

the appellate Court will not interfere with the exercise of

discretion by the original Court and substitute its own

discretion until and unless it is shown that the original

Court has exercised its discretion arbitrarily or

capriciously or otherwise contrary to law. He relies upon

the civil Court's reasons as found in paragraph Nos.13

and 151 to contend that the civil Court has considered

1 The civil Court's reasoning is:

According to the defendant's version, he has obtained permission from the BBMP for construction of the building in the suit property. From this version of the defendant it shows that on the basis of the sale deed he got mutated the khatha in his name and obtained the permission. But, looking to the documents produced by the plaintiff and defendant. When the defendants Vendor himself is not having any right over the property. Then the defendant will not get any right over the property. Moreover, Vendor of the defendant challenged the same before the Hon'ble High Court of Karnataka in

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all the relevant circumstances such as, the defendant's

strained claim to the title, the dismissal of

Sri. Thimmaiah's suit and the status quo order granted

by this Court in R.F.A.No.698/2009. He argues that

the civil Court's reasoning cannot be found fault with

and if the civil Court has not specifically referred to the

parameters such as, prima facie case or balance of

convenience or irreparable injury, the same is inherent

in the comprehensive consideration of the rival claims

and the proceedings.

10. Sri. M.R.Rajagopal refutes the assertion on

behalf of the defendant that the plaintiff cannot assert

absolute ownership of the subject property relying upon

the terms of the compromise which is in

O.S.No.7032/1997. Responding to this Court's query,

RFA No.698/2009. Hence, under such circumstances during the pendency of the suit if any sale deed is executed it will not create any right over the purchaser. Hence, the defendant merely obtained permission from the concerned department, has no right to construct over the suit schedule property. Accordingly, I answer point No.3 in the negative."

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Sri. M.R.Rajagopal submits that the defendant's title

necessarily hinges on the right asserted by

Sri. Thimmaiah in his suit in O.S.No.9143/1998 and

unless that suit is decided in his favour finally, the

defendant, who claims under him, cannot have a better

claim and would also be bound by the order of status

quo in the appeal. In fact, he relies upon a decision of

the Hon'ble Supreme Court in Surjit Singh and Others

Vs. Harbans Singh and Others2 to contend that with

serious questions pending consideration, the onus is on

the Courts to ensure that when the Courts are in seisin

of a lis, the state of affairs as of undisputed stage, must

be sustained until a final decision.

11. The rival submissions are anxiously

considered in the light of what would emerge as

indisputable circumstances. The plaintiff's title is

traceable to the registered compromise decree in

O.S.No.7032/1997. However, Sri. Thimmaiah has not

(1995) 6 Supreme Court Cases 50

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consented to decree by person but is consented to on

his behalf by Sri. H.Veeriah and Sri. M.Subramanya, his

alleged power of attorney constituted as such vide

Powers of Attorney on 20.09.1983. This document is

not placed on record, and it is not even stated that this

document is registered or coupled with interest. The

sale deed in favour of the defendant is executed after

the culmination of the suit in O.S.No.7032/1997.

However, the defendant relies upon a power of attorney

purportedly executed by Sri. Thimmaiah on 27.12.1993

in his favour and in favour of another to assert anterior

title and therefore possession of the subject property.

This Power of Attorney is also unregistered. The

primary source for rival claims to the subject property

therefore is two unregistered powers of attorney.

12. As observed by the civil Court, the efficacy of

one transaction as against the other must necessarily

be tested after the parties lead evidence which could

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substantiate and validate their respective transactions

and until then, the question of title, and therefore, de

jure possession of the subject property, is not

conclusively shown. Admittedly, the subject property

was vacant just before the commencement of the suit.

Neither the plaintiff nor the defendant have placed any

document on record to establish de facto possession

(actual possession) of the subject property as of any

date immediately prior to the date of commencement of

the suit. As such, the subject property must be as it

stands without further construction by either the

plaintiff or the defendant.

13. In addition, and as an answer to the

different questions that will have to be decided, the civil

Court will also have to decide, after trial, whether the

defendant would be bound by the decision in

O.S.No.9143/1998. If Sri. Thimmaiah is not even

arrayed as a party in his own capacity in the suit in

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O.S.No.7032/1997 and is arrayed as a party showing

his representation through the powers of attorney and if

this suit is compromised by such powers of attorney,

whether that would bind the plaintiff, will also have to

be examined. With these questions at large, this Court

cannot opine that the civil Court has exercised its

discretion in any manner that would fall foul in law.

However, the dispute in respect of the subject property

has prevailed over decades as evident from the multiple

proceedings. These circumstances create an exception

for the suit to be taken out of turn and decided in an

expeditious manner within a certain time frame.

14. Sri. M.R.Rajagopal is categorical that the

plaintiff from her side would not contribute to any delay

and would co-operate with the civil Court for

expeditious disposal of the suit and the same is

reciprocated in similar lines by Sri. Shashi Kiran Shetty

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on behalf of the defendant. For the foregoing, the

following:

ORDER

The appeal stands disposed of calling upon the

parties to assist and co-operate with the civil Court for

expeditious disposal of the suit. If the parties co-

operate and assist, the civil Court shall decide the suit

within an outer limit of six [6] months. If the final

decision in the suit is delayed, it shall be open to the

defendant to file application before the civil Court to

seek modification of the impugned order provided there

is some progress in the suit by way of the plaintiff's

evidence.

SD/-

JUDGE

RB