Sri M Rachaiah vs Sri Premanand Kamath
2022 Latest Caselaw 8075 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 03RD DAY OF JUNE, 2022

                          BEFORE

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

       MISCELLANEOUS FIRST APPEAL NO.3597/2022 (CPC)

BETWEEN:
SRI. M. RACHAIAH
SON OF SRI MADEGOWDA
AGED ABOUT 54 YEARS
RESIDING AT NO.31
"A N NILAYA", FIFTH CROSS
SRINAGAR, NEAR SRINAGAR PARK
BENGALURU - 560 050.
                                           ... APPELLANT
(BY SRI.Y.R. SADASHIVA REDDY, SENIOR COUNSEL FOR
    SRI. RAHUL S. REDDY AND SRI VIVEK N., ADVOCATES)

AND:
1.     SRI PREMANAND KAMATH
       S/O LATE LEELADHAR KAMATH
       AGED ABOUT 54 YEARS
       R/AT NO 1404 'B' BLOCK
       PURVA VENEZIA APARTMENT
       MAJOR UNNIKRISHNAN ROAD
       NEAR MOTHER DAIRY, YELAHANKA NEW TOWN
       BENGALURU - 560 064.

2.     SRI M D RAMAKRISHNAIAH
       S/O LATE M DEVASHETTY GOWDA
       AGED ABOUT 71 YEARS
       R/AT NO MIG- 2, 80FT ROAD
       KENGERI, UPANAGARA, BENGALURU - 560 060.

                                         ... RESPONDENTS

(BY SRI.M.R. RAJAGOPAL , SENIOR ADVOCATE FOR
  SRI. NARASIMHARAJU, ADVOCATE FOR C/R1)
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      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER.43 RULE 1(r) R/W 104 OF THE CPC AGAINST THE
ORDER DATED 21.04.2022 PASSED ON IA NO.1 IN
O.S.NO.1820/2022 ON THE FILE OF THE LXIX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-70),
ALLOWING IA NO.1 FILED U/O.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

The appellant, who is the second defendant in

O.S.No.1820/2022 on the file of the LXIX Additional

City Civil and Sessions Judge, Bengaluru (hereinafter

referred to as 'the Civil Court'), has impugned the Civil

Court's order dated 21.04.2022. The Civil Court by this

order has allowed the first respondent - plaintiff's

application (IA No.1) under Order XXXIX Rule 1 and 2 of

the Code of Civil Procedure 1908 restraining the

appellant and the other defendants from interfering with

the possession of the plaint schedule properties, which

are described as 2 sites bearing Nos. 30 and 31,

measuring 4000 sq.ft. each in Sy.No.66/3 of

Halagevaderahalli village, Kengeri Hobli, Bengaluru

South Taluk.

2. Sri. Y.R.Sadasiva Reddy and

Sri. M.R.Rajgopal, learned Senior Counsels for the

appellant and first respondent respectively, are heard

for final disposal of the appeal, and service of notice to

the second respondent [the first defendant and who is

the undisputed original owner of the land in Sy.No.66/3

of Halagevaderahalli village, Kengeri Hobli, Bengaluru

South Taluk] is dispensed with for the purposes of this

appeal.

3. It is undisputed that the second respondent

was the absolute owner of 35 guntas in Sy.No.66/3 of

Halagevaderahalli village, Kengeri Hobli, Bengaluru

South Taluk. This extent of 35 guntas is diverted from

agricultural to non-agricultural residential purposes

under Section 95 of the Karnataka Land Revenue Act,

1964 vide the Official Memorandum dated 26.06.2015

in ALN(S)SR(KE) 95/14-15. Both the appellant and the

first respondent, who claim under the second

respondent but under different documents, assert title

and possession of the same property though described

differently in their respective documents.

4. While the appellant asserts that the second

respondent has transferred site Nos.18, 19, 30 and 31

which together measure 4000 sq. ft. under the sale deed

dated 6.1.2022, the first respondent [who contends site

Nos.30 and 31 measure 4000 sq. ft. each] assets that

this second respondent has executed registered power of

attorney for the land in Sy.No.66/3 of Halagevaderahalli

village, Kengeri Hobli, Bengaluru South Taluk on

27.6.2015. This power of attorney has transferred site

Nos.30 and 31 under the sale deed dated 12.2.2020.

This sale deed does not mention the site numbers and

therefore, a rectification deed is executed on

29.10.2020.

5. As regards the possession, the first

respondent asserts that he has ensured that sites in

Nos.30 and 31 are enclosed by compound and he has

constructed a temporary structure with power, and the

first respondent, without disputing that the property as

claimed by him is compounded and has temporary

structure, asserts that he has constructed such

compound and temporary structure and he is utilizing

the same for parking of certain vehicles.

6. Sri Y.R.Sadasiva Reddy submits that the

civil Court has erred in restraining the appellant from

interfering with the first respondent's alleged possession

of two sites as described in the plaint. The civil Court

has overlooked material circumstances such as, the first

respondent, who is asserting that he has purchased a

total extent of 8000 sq.ft. under the aforesaid sale deeds

from the power of attorney of the second respondent,

cannot deny that he has purchased from the second

together measures 2400 sq. ft. under the sale deed

dated 25.2.2022. This would amount to an

acknowledgment of the second respondent's right to

transfer portions in Sy.No.66/3 of Halagevaderahalli

village, Kengeri Hobli, Bengaluru South Taluk in terms

of the layout that is developed by him. This would also

vindicate the appellant's purchase of sites in Nos.18,

19, 30 and 31 which together measure 4000 sq. ft. The

location of the aforesaid sites measuring 23 and 24

corresponds to the description of the layout as relied

upon by the appellant.

7. Sri M.R.Rajagopal, on the other hand,

submits that with the second respondent, being the

undisputed owner of the larger extent of 35 guntas in

Sy.No.66/3 of Halagevaderahalli village, Kengeri Hobli,

Bengaluru South Taluk, has at an earlier point of time

constituted and appointed a power of attorney vide

power of attorney dated 27.6.2015. This power of

attorney has prevailed and in exercise of the authority

thereunder, the sale deed dated 12.2.2020 is executed.

The first respondent's prior title insofar as the disputed

extent must prevail.

8. These are the essential submissions by the

learned Senior Counsels for the appellant and the

respondents. When queried by this Court,

Sri.M.R.Rajgopal is categorical that the first respondent,

who is keen on adjudication on the rival claims without

any precipitation, would not put up any construction or

alter the nature of standing structure howsoever in the

disputed area and he would utilize the subject property

only for the purposes of parking vehicles. He also

submits that this would be only with the leave of this

Court subject to the condition that the first respondent

will not claim any equity based on such permission

granted. Mr. M R Rajagopal emphasizes that this Court

with this submission could dispose of the appeal

modifying the impugned order accordingly.

9. In rejoinder, Sri Y.R.Sadasiva Reddy submits

that though the proposal by Sri M R Rajagopal could be

accepted as an interim arrangement that could prevail

during the pendency of the suit, this Court must ensure

that the permission, if granted, will not be construed as

even prima facie acceptance of the first respondent's

case of exclusive possession and all the questions must

be left open for final adjudication.

10. However, both Sri Y.R.Sadasiva Reddy and

Sri.M.R.Rajgopal submit that the appellant and the first

respondent would assist/cooperate with the Civil Court

in an expeditious disposal. In this case, given the rival

submissions, the Civil Court will have to necessarily

decide on de-jure and de-facto possession of the

disputed area based on the respective claims. If there is

any alteration in the nature of the property during the

pendency of such adjudication, it would clutter the

Issues in the suit and this would be especially so if third

party rights are created.

11. Therefore, this Court is of the considered

view that the submission that neither the appellant nor

the first respondent will change the nature of existing

structure in the disputed area, must be taken on record

and must be made an order of this Court modifying the

impugned order. Insofar as the first respondent's

request for permission to use the open area within the

subject property to park vehicles, it could be accepted

on the condition that it shall be construed as an

affirmation of the first respondent's case. It would be

needless to observe that all questions must be decided

in the final adjudication. Hence the following:

ORDER

(a) The appeal stands disposed of

modifying the impugned order dated

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21.04.2022 in O.S.No.1820/2022 on the file

of the LXIX Additional City Civil and

Sessions Judge, Bengaluru, by restraining

both the appellant and the first respondent

from altering or changing the nature of the

existing structures, including the compound

wall in the disputed area, and the first

respondent is permitted to park vehicles but

on the condition that he shall not claim any

equity based on such utilization of the

disputed area and this permission must be

subject to final adjudication of the suit.

(b) The appellant and the first

respondent shall assist/cooperate with the

Civil Court in expeditious disposal of the suit

and to facilitate the same, both shall file

draft Issues based on the pleadings for the

Civil Court to frame issues expeditiously.

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(c) The Civil Court shall decide the

suit on merits within an outer limit of twelve

(12) months from the date of receipt of

certified copy of this order.

SD/-

JUDGE

SA Ct:sr