Smt Sakamma vs Sri Sameernath
2022 Latest Caselaw 9679 Kant

                            -1-



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 27TH DAY OF JUNE, 2022

                          BEFORE

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

       MISCELLANEOUS FIRST APPEAL NO.4216/2022 (CPC)

BETWEEN:

1.     SMT. SAKAMMA
       W/O GOVINDAPPA
       AGED ABOUT 73 YEARS,

2.     SMT G MANJAMMA
       D/O GOVINDAPPA
       AGED ABOUT 36 YEARS,

       BOTH ARE R/AT BARADI VILLAGE,
       MANDIGERE POST, NELAMANGALA TALUK
       NEAR MARAMMA TEMPLE
       BANGALORE RURAL DISTRICT.
                                     ... APPELLANTS

(BY SRI.JAYAKUMAR S. PATIL, SENIOR ADVOCATE A/W
    SRI. SOMASHEKAR ANGADI, ADVOCTE)

AND:

1.     SRI SAMEERNATH
       S/O K M KRISHNA RAO
       AGED ABOUT 62 YEARS,
       NO.855, 25TH A MAIN ROAD
       HSR LAYOUT, SECTOR-1
       BENGALURU - 560 102.

2.     SRI SIVASIDDEGOWDA BASAVARAJU
       S/O SIVA SIDDEGOWDA
       AGED ABOUT 34 YEARS,
                               -2-



       RESIDIGN AT NO.20/11
       RUDRAPPA GARDEN,
       1ST MAIN, KASTHRUBHA NAGARA
       CHAMARAJAPETE
       BENGALURU - 560 018.

                                       ... RESPONDENTS
(BY SRI. H.M. MURALIDHAR, ADVCOATE FOR R1)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
01.06.2022 PASSED ON I.A.NO.1 IN OS.NO. 2136/2022 ON THE
FILE OF THE VII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, CCH.NO.19, BENGALURU, ALLOWING THE I.A.NO.1
FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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


                          JUDGMENT

The defendants in O.S.No.2136/2021 on the file of

the VII Additional City Civil and Sessions Judge,

Bengaluru (for short, 'the civil Court') have impugned the

civil Court's order dated 1.6.2022 allowing the first

respondent's - plaintiff's application (IA.1) under Order

XXXIX Rule 1 and 2 of the Code of Civil Procedure,

1908 (CPC). The civil Court, in allowing this

application, has restrained the appellants from

interfering with the first respondent's possession and

enjoyment of the suit schedule property.

2. The appellants and the respondents have

rival claims to the same property viz., the property

measuring 1200 sq. ft. as part of the site No.31 BBMP

Ward No.191 in Parappana Agrahara (Revenue Layout),

Lake View, Meenakshi Layout, Begur Hobli, Bangalore

South Taluk bounded on the east by site No.38, west by

road, north by site No.30 and south by road [the subject

property]. However, the appellants and the respondents

do not dispute that the subject property is part of

Sy.No.45/2 of Parappana Agrahara (Revenue Layout),

Lake View, Meenakshi Layout, Begur Hobli, Bangalore

South Taluk originally owned by M.Chikka Ramaiah. Of

course, the respondents contend that this extent is part

of a larger property, which measures 1800 sq. ft and is

owned by him, and the appellants contend that it only

measures 1200 sq. ft.

3. The first respondent asserts that Sri

M.Chikka Ramaiah has executed power of attorney in

favour of Sri.Y.Krishnamurthy who has executed the

sale deed dated 20.5.1993 for an extent of 1800 sq. ft

(measuring 40'x45') in favour of the respondents and

the first respondent has been in possession of the

property ever since. The first respondent has many

years back put up construction in some part of this

property.

4. On the other hand, the appellants contend

that Sri M.Chikka Ramaiah and Sri Gundappa have

executed sale deed for the subject property in favour of

Smt.Amudha on 9.7.2009, who has transferred the

same in favour of Sri Karthik K. under the sale deed

dated 23.7.2011. The appellants also contend that there

are two subsequent transfers on 5.6.2014 and

25.10.2019 and they have purchased the subject

property on 7.1.2020 from the transferee who

purchased the same under the sale deed dated

25.10.2019.

5. On possession of the subject property, the

appellants assert that with the purchase of the subject

property, they have commenced construction which is

nearing completion and that they intend to use this

property, amongst others, for the purpose of a

meditation centre. But the first respondent contends

that he has commenced construction in the portion of

the subject property which was vacant many years

back.

6. It is obvious from these respective claims

both as regards title and possession that there are

serious rival claims. Significantly, the first respondent,

who has purchased an extent measuring 1800 sq. ft.

under the sale deed dated 20.5.1993, and who relies

upon certain consistent revenue records and sanction,

has initiated the suit in O.S.No.2279/2007 against

Sri.Gundappa [one of the appellant's predecessors-in-

title]. This suit is decreed ex-parte on 02.01.2008 and

the subsequent petition by Sri Gundappa under Order

IX Rule 13 of the CPC in Mis.No.706/2009 is also

rejected, but there is no challenge thereafter.

7. Sri. Karthik K, who has the Sale Deed from

Sri Amudha [the appellant's another predecessors-in-

title], has filed another suit in O.S.No.6457/2011

against the first respondent. He has filed application in

O.S.No.6457/2011 for temporary injunction, and this

application for temporary injunction is rejected by the

order dated 24.9.2011. This suit is ultimately dismissed

as not pressed. The first respondent, almost

simultaneously with the commencement of the present

suit, has filed the first information report with the

jurisdictional police which is registered in Crime

No.78/2022.

8. Further, the first respondent has also

approached this Court with the petition in

W.P.No.10547/2022 complaining that the jurisdictional

police has not conducted investigation, and this writ

petition is disposed of taking on record the submissions

by the learned counsel for the learned Government

Advocate that the investigation would be completed

within a time frame if the petitioner cooperates with

such investigation.

9. The civil Court, considering these rival

assertions, has allowed the first respondent's

application. The civil Court's reasoning reads as under:

"11. From the sale deeds of defendant's it is clearly seen that their rights to suit schedule property was flown to them through Gundappa. Further photos of plaintiff show the erection of pillars next to old building in suit schedule property and even in photos produced by defendant's through new building is seen next to it old building is seen. Hence contention of defendant's that they had completely demolished the old structure and have put up new

construction holds no water. Further board showing Rajayoga Mediation Centre in photos does not hold true that defendant's are in possession of suit schedule property when documents of plaintiff clearly show plaintiff's possession over suit schedule property. Further electricity bills and water bill receipt showing name of plaintiff in suit schedule property makes out his possession in schedule property.

12. Further copy of the complaint filed by the plaintiff with the Parappana Agrahara Police 16.03.2022 copy of FIR in Crime No. 78/2022 clearly shows interference by defendant's Authority relied by plaintiff in (2010) 6 SCC 666 in Atla Sidda Reddy Vs Busi Subba Reddy and others in not applicable to this suit as nature of that suit was for declaration and injunction and this suit is for bare injunction. Hence, at this stage concluded that prima-facie case made out by plaintiff. As to balance of convenience and irreparable injury it tilts in favour of plaintiff as from copy of police complaint furnished clearly showing interference of defendant's in suit schedule property, hence if injunction is not granted then plaintiff would be more prejudiced as he could be disposed and his loss cannot be compensated in terms of money. Accordingly, I answer points No.1 to

3 in the affirmative. Further, Memo dated 19.04.2022 filed by the plaintiff that he would restrict his prayer on IA No.1 only against defendant's No.1 and 2."

10. Sri Jayakumar S.Patil, the learned Senior

Counsel for the appellants, fairly submits that the

appellants may not be in a position to dispute that the

first respondent claims title to the subject property

under a sale deed executed prior in time. But, the

learned Senior Counsel submits that with the power of

attorney who has executed such sale deed being

disputed, the efficacy of the sale deed will have to be

decided by the civil Court in the light of certain

circumstances that the appellants claim. Insofar as the

nature of the property during the pendency of such

adjudication, and because the construction is near

completion, the appellants must be permitted to

complete the construction on terms.

- 10 -

11. Sri H.M.Muralidhara, the learned counsel

for the first respondent relying upon the plaint

averments, submits that the first respondent is

categorical even as of the date of plaint that the first

respondent has started digging and the appellants were

interfering. He emphasises the fact, which is not

contested by the other side, that the appellants, who are

on caveat, did not file written statement for over 1 ½

months and when they have filed their written

statement, they rely on a set of photographs that they

have commenced construction.

12. This Court, in the circumstances of the case,

is not persuaded to opine that the civil Court, which has

relied upon the circumstances asserted by the first

respondent, has erred in restraining the appellants from

interfering with the construction by the first respondent.

However, this Court must opine that with the

- 11 -

construction as it is now, if there is future construction,

the same should be subject to the outcome of the suit.

The appeal is disposed of accordingly.

SD/-

JUDGE

SA Ct:sr