Dr Anand G S vs Smt Gangabyramma
2022 Latest Caselaw 9331 Kant

                            -1-



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 22ND DAY OF JUNE, 2022

                          BEFORE

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

       MISCELLANEOUS FIRST APPEAL NO.4551/2021 (CPC)

BETWEEN:

DR. ANAND G. S.
S/O LATE DR.G.SHIVAPRASAD
AGED ABOUT 45 YEARS,
R/AT SIDDARATHANAGARA
GOLLAHALLI (HEGGERE)
KASABA HOBLI
TUMKUR TALUK AND DISTRICT.
                                           ... APPELLANT
(BY SRI.AMARESH A. ANGADI, ADVOCATE)

AND:
1.     SMT GANGABYRAMMA
       D/O LATE GANGAMMA
       LATE GANGAMUNIYAPPA
       W/O GANGARAMAIAH
       AGED ABOUT 61 YEARS,
       R/AT TAVAREKERE, NEAR ASHWATH KATTE
       BANGALORE SOUTH TALUK
       BANGALORE URBAN DISTRICT.

2.     SMT.JAYALAKSHMAMMA
       W/O LATE DR.G.SHIVAPRASAD
       AGED ABOUT 65 YEARS,
       R/A SIDDARATHANAGARA
       GOLLAHALLI (HEGGERE)
       KASABA HOBLI, TUMKUR TALUK AND DISTRICT.

                                        ... RESPONDENTS
(BY SRI. ANAND, ADVOCATE FOR R-1)
                            -2-



     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) OF THE CPC AGAINST THE
ORDER DATED 03.03.2021 PASSED ON IA NO.1 AND 2 IN
O.S.NO.29/2021 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, NELAMANGALA, ALLOWING IA NO.1
FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC,
REJECTING IA NO.2 FILED U/O.39 RULE 4 R/W SECTION
151 OF CPC.

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

                       JUDGMENT

The second defendant in O.S.No.29/2021 on the

file of the Additional Senior Civil Judge, Nelamangala

(for short, 'the Civil Court') has impugned the civil

Court's order dated 3.3.2021. The civil Court by this

impugned order has allowed the first respondent -

plaintiff's application (IA No.1) under Order XXXIX

Rules 1 and 2 read with Section 151 of the Code of Civil

Procedure, 1908 (CPC) restraining the appellant from

interfering or changing the nature of the agricultural

lands in Sy.No.40/4 (measuring 3 acres 1 gunta),

Sy.No.40/11 (measuring 11 acres 11 guntas) and

Sy.No.36/10 (measuring 3 acres 27 guntas) of

Tippagondahalli village, Thyamagondlu Hobli,

Nelamangala Taluk, Bengaluru Rural District (for short,

'the subject lands') while rejecting the appellant's

application (IA No.2) under Order XXXIX Rule 4 read

with Section 151 of CPC dissolving the ex-parte order of

injunction granted.

2. The appellant and the respondents' family

members have executed two Sale Agreements dated

30.05.2013 and 20.05.2014 for transfer of the subject

lands in favour of the appellant. According to the

appellant, the total agreed consideration is

`9,82,50,000/- and he has paid a sum of

`4,91,25,000/- to the different family members

including the first respondent. The family members

have also executed a power of attorney in favour of the

appellant's nominee. However, the appellant is

constrained to file a suit for specific performance in

O.S.No.10/2015 on the file of the Senior Civil Judge,

Nelamangala because the transaction could not be

completed.

3. The appellant further contends that during

the pendency of this suit, the first respondent and her

family members on their own volition, and on receipt of

further consideration, have executed separate release

deed on 30.6.2015 releasing all their rights in the

subject lands in his favour. They have acknowledged

that the possession of the subject lands is handed over

to him, and he has continued the suit in

O.S.No.10/2015 for complete conveyance of the

absolute title to the subject lands without any later

disputes.

4. The first respondent-plaintiff has filed the

present suit for cancellation of the release deed dated

30.6.2015. She contends that she has signed the

release deed dated 30.6.2015 and joined in its

registration only because she bonafide believed that the

appellant had called her to present the sale agreement

executed earlier for registration. She was not aware of

the execution of the release deed until there were

proceedings by the income tax authorities in her

brother's residence. A release deed could be only

amongst/between the family members, and there

cannot be a release deed between herself and the

appellant because they are not family members. As

regards possession, the first respondent has asserted

that she and her family members have continued in

possession of the subject lands.

5. The civil Court, for grant of temporary

injunction in favour of the first respondent in the light

of the rival pleadings as aforesaid, has opined that the

appellant has not approached the Court with clean

hands. The civil Court has observed that even

according to the appellant, the agreed consideration is

much higher than the amount mentioned in the release

deed, and this would render the release deed dubious.

The civil Court has also opined that the earlier

agreement is unregistered, and it cannot be relied upon

for the purposes of Section 53A of the Transfer of

Property Act, 1882. The civil Court, insofar as balance

of convenience and irreparable hardship, has opined

that if the nature of the subject lands is changed, there

could be multiplicity of proceedings and the first

respondent could be put to irreparable loss.

6. It is undisputed that the appellant who, as

the owner of the adjacent lands which is utilized for

establishment of a medical college and hospital, has

entered into an agreement not only with the first

respondent but also her other family members to

purchase the subject lands. None of the family

members have contested the appellant's possession of

the subject lands. The appellant's claim for possession

of the subject lands in part performance of the sale

agreement could be tentative though it is presently

contended that the sale agreement dated 30.5.2013 is

adjudicated by the concerned authority under the

Indian Registration Act, 1908 and a sum of

`12,96,250/- is received as deficit stamp duty and

penalty.

7. Significantly, the appellant to demonstrate

his exclusive possession of the subject lands relies upon

the terms of the release deed dated 30.6.2015 executed

by the first respondent, as one of the co-owners of the

subject lands, accepting that the possession of the

subject lands is delivered. The efficacy of this release

deed dated 30.6.2015 will have to be considered in the

light of the material circumstances that the parties

could place on record. It is undisputed that the subject

lands are vacant and constitutes access to the

appellant's adjacent lands.

8. Sri Amaresh A. Angadi, the learned counsel

for the appellant, is categorical that the appellant will

not put up any permanent structure in the subject

lands until the decision in the suit, but the appellant

must have liberty to construct a compound wall and

gate to protect common interest. This Court must also

observe that the civil Court should have considered the

aforesaid circumstances, but in failing to consider these

material circumstances it has erred in exercise of its

discretion to grant interim order. This Court must also

observe that, given the circumstances of the case, the

arrangement offered by Sri. Amaresh Angadi would the

balance of convenience and mutual hardship and

therefore, the appeal must be allowed modifying the

impugned order. Therefore, the following:

ORDER

The appeal is allowed in part and the

impugned order dated 3.3.2021 in

O.S.No.29/2021 on the file of the Additional

Senior Civil Judge, Nelamangala, is modified

restraining the appellant from putting up

permanent structure in the schedule lands

but is granted liberty to construct a

compound wall with a gate without being

entitled to claim any equities in the final

adjudication of the suit.

Sd/-

JUDGE

SA Ct:sr