Karnataka High Court

Sri.S.C.Nagaraja vs Sri.Chandrappa on 3 March, 2022

Bench: E.S.Indiresh

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 03RD DAY OF MARCH , 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

      WRIT PETITION NO.12447 OF 2021 OF (GM-CPC)

BETWEEN

SRI S C NAGARAJA
S/O LATE SRI CHINNAPPA
AGED ABOUT 41 YEARS
R/AT NEAR SHAMBAPPA TEMPLE
M G ROAD, SARJAPURA VIILLAGE
ANEKAL TALUK
BENGALURU-562 125.
                                             ...PETITIONER
(BY SRI A RAVISHANKAR, ADVOCATE FOR
SRI SHANKARE GOWDA V N, ADVOCATE)

AND

      1. SRI CHANDRAPPA
         S/O LATE SRI NARAYANAPPA
         AGED ABOUT 64 YEARS
         R/AT GOVINDARAJU LAYOUT
         THIMMARAYSWAMY TEMPLE ROAD
         ANEKAL TALUK
         BENGALURU-562 106.

      2. S KRISHNAKUMAR
         S/O SRI MUNISWAMYREDDY
         AGED ABOUT 45 YEARS
         R/AT NO.756, 11TH 'A' CROSS
         26TH MAIN, 1ST SECTOR
         HSR LAYOUT
                                  2




         BENGALURU-560 034.
                                                 ....RESPONDENTS
(BY SRI V R BALARAJ, ADVOCATE FOR C/R1;
NOTICE TO R2 STANDS WAIVED)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
IN MA NO.17 OF 2021 AND MA NO.18 OF 2021 BEFORE THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL AND SET
ASIDE THE ORDER DATED 03RD JUNE, 2021 (ANNEXURE-A) AND
CALL FOR RECORDS OF OS.NO.26 OF 2021 PENDING BEFORE
THE I ADDITIONAL CIVIL JUDGE AND JMFC, ANEKAL DATED 20TH
FEBRUARY, 2021 AND CONSEQUENTLY DISMISS THE IA.NO.2
FILED BY THE RESPONDENT NO.1 (ANNEXURE B).

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

In this Writ Petition defendant No.1 has challenged the

order dated 20th February, 2021 passed on IA.II in OS No.26 of

2021 by the I Additional Senior Civil Judge and JMFC at Anekal,

which came to be confirmed by order dated 03rd June, 2021 in

MAs No.17 and 18 of 2021 by the Additional Senior Civil Judge

and JMFC, Anekal.

2. Succinctly stated, facts of the case for adjudication of

this writ petition are that, the plaintiffs claim to be the owner in

possession of the subject land. The plaintiff derived the suit

schedule property by way of compromise decree dated 14th

December, 2012 in OS No.936 of 2012 on the file of Senior Civil

Judge and JMFC at Anekal. It is further averred in the plaint that

the plaintiff retained an extent of 10.04 guntas out of 1.20 acres

and he is in possession of the suit schedule property. It is the

case of the plaintiff that one Smt. Manju Katuria, fraudulently

mutated her name in respect of the subject land and same was

challenged by the plaintiff before the Assistant Commissioner,

Bengaluru South Sub-Division in Revenue Appeal No.215 of

2011-12, which came to be allowed. Being aggrieved by the

same, the said Smt. Manju Katuria, filed Revision Petition

No.157/2012-13 before the Deputy Commissioner, Bengaluru

and the said Revision Petition came to be allowed and feeling

aggrieved by the same, plaintiff has filed Writ Petition No.33869

of 2015 before this Court. This Court, by order dated 09th

September, 2015 disposed of the writ petition subject to the

result of OS No.299 of 2009. It is further stated that the plaintiff

has withdrawn the said suit, which was filed seeking relief of

partition and separate possession of land bearing survey No.29

measuring 3.38 acres situate at Sompura village, Anekal Taluk.

It is further averred in the plaint that one Sheshayee

Venkataraman, claiming to be the owner of Sites No.5 and 6 has

purchased the same under registered sale deeds dated 29th

April, 1993 and 07th August, 1995, and further averred that the

defendant No.2 has purchased the aforementioned sites by

registered sale deed dated 19th January, 2005. The case of

plaintiff is that the said transaction is sham and defendants have

no right or interest insofar as the subject land of the suit and as

such, the plaintiff has filed OS No.26 of 2021 before the trial

Court seeking relief of permanent injunction against the

defendants (Annexure-Q1). Along with the plaint, plaintiff has

filed IA.I under Order XXXIX Rules 1 and 2 of Code of Civil

Procedure seeking ad interim temporary injunction against the

defendants from interfering with the suit schedule property.

That apart, the plaintiff has filed IA.II under Order XXXIX Rules 1

and 2 of Code of Civil Procedure seeking ad interim temporary

injunction restraining the defendants from putting up

construction over the suit schedule property.

3. After service of notice, respondents entered appearance

and filed written statement denying the averments made in the

plaint and also resisted the aforementioned Interlocutory

applications. The trial Court, by order dated 20th February, 2021

dismissed IA.I, however, allowed IA.II. Feeling aggrieved by the

aforementioned order, the plaintiff and the defendant No.1 have

preferred MAs No.17 and 18 of 2021 before the First Appellate

Court. The First Appellate Court, by order dated 03rd June,

2021, dismissed both the appeals, consequently, order passed

by the trial Court in OS No.26 of 2021 was confirmed. Being

aggrieved by the dismissal of IA.I by both the courts below,

plaintiff preferred writ petition No.11768 of 2021 before this

Court and this Court by order dated 05th July, 2021, dismissed

the writ petition, resultantly, the order passed on IA.I by the trial

Court had reached finality. Insofar as allowing of IA.II by the

trial Court is concerned, the defendant No.1 has filed MA 18 of

2021, which came to be dismissed by impugned order dated 03rd

June, 2021. Being aggrieved by the same, the defendant No.1

has presented this writ petition.

4. I have Sri A. Ravishankar learned counsel on behalf of

Sri Shankare Gowda V.N., counsel appearing for the petitioner

and Sri V.R. Balaraj, learned counsel appearing for respondents.

5. Sri A. Ravishankar, learned counsel for the petitioner

contended that originally OS No.299 of 2009 was filed by

respondent No.1, seeking relief of partition and separate

possession, which came to be withdrawn, and thereafter,

respondent No.1 filed OS No.936 of 2012 before the trial Court

which came to be disposed of in terms of the compromise decree

dated 14th December, 2012. The said compromise decree is

subject matter in RFA No.1268 of 2016 before this Court and the

same is pending consideration. He further invited the attention

of the Court to the order dated 26th February, 2020 passed in

RFA No.1268 of 2016 and submitted that respondent No.1, has

suppressed the pendency of RFA No.1268 of 2016 in the plaint

and therefore, the plaintiff is not entitled for equitable relief. He

further contended that suppression of facts amounts to

commission of fraud and the said aspect has not been properly

appreciated by both the courts below while passing an order on

IA.II. He further submitted that the finding recorded by both the

Courts below on title and possession of the defendant No.1 over

Site No.5 and 6 is contrary to law. He also referred to paragraph

19 of the order passed by the trial Court in OS No.26 of 2021

and argued that the said finding recorded by the trial Court is

contrary to the documents referred to by defendant No.1 and

the same aspect has not been properly appreciated by the First

Appellate Court.

6. Emphasising on the operative portion of the order

passed by the trial Court on IA.I and II, Sri A Ravishankar,

learned counsel appearing for the petitioner argued that the trial

Court has not properly applied its mind while allowing IA.II when

the trial Court has come to a conclusion that the plaintiff has not

made out a prima facie case, while dismissing IA.I. In order to

protect the interest of defendant No.1, Sri Ravishankar, argued

that the defendant No.1 has produced the relevant electricity

bills from the year 2009 onwards, which would clearly

substantiate the fact that the petitioner is in possession of the

schedule land. Accordingly, he sought for interference of this

Court.

7. Per contra, Sri V.R. Balaraj, learned counsel appearing

for the respondents invited the attention of the Court to the sale

deed dated 19th January, 2005 (Annexure-C) and submitted that

the schedule to the said sale deed is incomplete and same was

rectified after lapse of twelve years by way of rectification dated

04th July, 2017 (Annexure-D) and therefore, he submitted that

there is a cloud in the property and as such, the finding recorded

both the Courts below restraining the defendant No.1 from

putting up construction, is just and proper. Accordingly, he

sought for dismissal of the writ petition.

8. In the light of the rival submissions advanced by the

learned counsel appearing for the parties, it is not in dispute that

the plaintiff-respondent No.1 herein has filed OS No.26 of 2021

seeking permanent injunction. The trial Court, by order dated

20th February, 2021 dismissed IA.I filed under Order XXXIX

Rules 1 and 2 of Code of Civil Procedure, however, allowed IA.II

filed under Order XXXIX Rules 1 and 2 Code of Civil Procedure,

restraining the defendants from putting up construction till

disposal of the RFA No.1268 of 2016 before this Court. Orders

on both the IAs passed by the trial Court was called in question

in MAs No.17 and 18 of 2021 before the First Appellate Court

and the First Appellate Court, by order, dated 03rd January, 2021

dismissed the appeals. This Court, by order dated 05th July,

2021 passed in writ petition No.11768 of 2021 confirmed the

Order on IA.I of 2020 passed by the trial Court. Therefore, the

core question to be addressed in this Writ Petition is, whether

the finding recorded by both the courts below on IA.II is just and

proper.

9. In the light of submission made by the learned counsel

appearing for the petitioner, I have carefully examined the

averments made in the plaint in OS No.26 of 2021. There is no

reference to the interim orders passed by this Court in RFA

No.1268 of 2016 in the plaint. That apart, this Court, by order

dated 26th February, 2020 observed as follows:

"It is not in dispute that the applicant herein was defendant No.32 on O.S.No.299/2009. It is also not in dispute that one of the items in O.S.No.299/2009 was a

property purchased by the applicant herein. Though the proceedings were on in O.S.No.299/2009, Respondent No.1 herein had filed another suit in O.S.No.936/2012, sk..... designed in respect of the property purchased by the applicant herein in which suit the applicant was not arrayed as a party. The said suit in O.S.No.936/2012 was ingeniously compromised by which, the parties distributed the said property and got a final decree drawn and registered. On the face of it, the conduct of the respondents borers on fraud and therefore, the delay caused is to be condoned to set right the fraud committed by the respondents. Therefore, the delay of 1320 days in filing the application is condoned, by allowing I.A.No.3 of 2019."

10. Undisputably, the appeal is pending consideration

before this Court and rights of the parties is yet to be crystallised

in the said appeal. However, taking into consideration the

finding recorded by the trial Court on IA.I which ultimately

reached finality in Writ Petition No.11768 of 2021 and taking into

consideration the arguments advanced by the learned counsel

appearing for the petitioner, I am of the view that the writ

petition deserves to be disposed of by setting aside the orders

passed by the Courts below on IA.II by putting the defendant

No.1 on terms. In that view of the matter, this Court directed

the petitioner herein to file undertaking by way of affidavit that

any construction that may be made on the schedule property the