Sri. S. K. Mallikarjun vs Mr. Rajanna
2022 Latest Caselaw 3709 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 04 T H DAY OF MARCH, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

             MFA NO.6599 OF 2019(CPC)


BETWEEN:

Sri S K Mallikarjun,
S/o S.M.Krishnap pa,
Aged about 47 years,
Residing at Sitakempanahalli Village,
Hesarag hatta Hobli,
Beng aluru North Taluk-560089.
                                           ...Appellant

(By Smt Vidya Selvamony, Ad vocate for
    Sri Rakshith K.N., Advocate)


AND:

Mr. Rajanna,
S/o Gourayya,
Aged about 42 years,
Residing at House No.147,
14 t h Cross, Maruthi Nag ar,
Yelahanka, Beng aluru-560064.
                                          ...Respondent

(By Sri Narayan Mayyar, Ad vocate for
    Sri S.R.Hegd e Hudlamane, Advocate)


     This MFA is filed under Order 43 Rule 1(r) of
CPC, against the order d ated 30.07.2019 p assed on
                               :: 2 ::


I.A.No.1 in O.S.No.773/2017 on the file of the III
Additional Senior Civil Judge, Bengaluru Rural District,
Beng aluru, dismissing I.A. filed under Ord er 39 Rules
1 & 2 of CPC.

      This MFA coming on for admission this d ay, the
Court delivered the following:

                        JUDGMENT

This appeal is preferred by the plaintiff

aggrieved by the order dated 30.07.2019 passed

by the III Addl. Senior Civil Judge, Bengaluru

Rural District, Bengaluru in O.S.No.773/2017 on

an application, I.A.No.1 filed by the plaintiff under

Order 39 Rules 1 and 2 CPC.

2. Heard Smt. Vidya Selvamony, learned

counsel for the appellant and Sri. Narayan Mayyar,

learned counsel for the respondent.

3. The appellant is the plaintiff in the suit for

declaration that sale deed dated 1.7.1943 is null

and void, and not binding on him and

consequential relief of permanent injunction to :: 3 ::

restrain the defendant from interfering with his

peaceful possession and enjoyment of the schedule

property, which is described as 2 Acres 3 guntas of

land in Sy.No.12/3 of Seetakempanahalli village,

Hesaraghatta Hobli, Bengaluru North Taluk.

4. It is the case of the plaintiff that his

grandfather viz., Munikempaiah purchased the suit

property for a valuable consideration under

registered sale deed dated 6.4.1943. Thereafter

he got the revenue records mutated to his name

and held its possession. After the death of

Munikempaiah, his wife Lakshmamma and paternal

aunt Munihanumakka and the plaintiff's father

succeeded to the said property and they divided

the same among themselves through a registered

partition deed dated 27.11.2004. The suit

property fell to the share of the plaintiff's father

Krishnappa. During the life time of the father, the

property was divided among the plaintiff, his :: 4 ::

father and the brother on 30.07.2007 and thus the

suit property fell to his share. There also came

into existence the confirmation deed dated

7.2.2015. It is stated that the defendant has no

manner of right and title over the suit property

and yet he tried to remove the standing eucalyptus

trees. The defendant did not stop interference in

spite of resistance by the plaintiff and therefore

suit came to be filed.

5. The defendant contended that

Munikempaiah purchased 2 acres 3 guntas of land

in Sy.No.12 of Seetakempanahalli village,

Hesaraghatta Hobli, Bengaluru North Taluk under

registered sale deed 6.4.1943, but on 1.7.1943,

Munikempaiah sold an extent of 1 acre 29 guntas

out of 2 acres 3 guntas of land in Sy.No.12 in

favour of Nanjappa, son of Gouraiah. Thus

Nanjappa became the owner of 1 acre 29 guntas

and held its possession till his death. After the :: 5 ::

death of Nanjappa, his son Gouraiah succeeded to

1 acre 29 guntas of land. Gouraiah died on

20.8.1966. The defendant succeeded to the

property being son of Gouraiah. He contended

that he is in peaceful of possession of 1 acre 29

guntas and therefore the plaintiff has no manner

of right or title over this extent of land. He

further contended that the plaintiff has challenged

the sale deed dated 1.7.1943 and therefore the

suit is highly time barred.

6. Perusal of the impugned order shows that

despite the sale in favour of Nanjappa on

1.7.1943, the revenue records continued in the

name of the plaintiff. Therefore the defendant

approached the Assistant Commissioner by filing

an appeal. The said appeal came to be allowed

and thus the name of the defendant came to be

entered in the revenue records. Probably this :: 6 ::

might have prompted the plaintiff to file a suit for

declaration and injunction.

7. I do not find any infirmity in the order

passed by the trial court. The trial court has

properly exercised discretion by going through all

the documents produced before it. Though it is

not in dispute that the plaintiff's grandfather was

the erstwhile owner of the entire extent of land in

Sy.No.12, according to the defendant, the

plaintiff's grandfather sold a part of land on

1.7.1943 in favour of one Nanjappa, through whom

the defendant traces his title. Moreover, the

plaintiff is assailing the sale deed dated 1.7.1943

by filing a suit in the year 2017. In this view,

question of limitation definitely emerges for

consideration. Apparently, suit appears to be time

barred. I do not think that the plaintiff's

application for temporary injunction deserved to

be considered in these circumstances. In this :: 7 ::

view, the trial court's decision to come to

conclusion to dismiss the application for temporary

injunction is in all respects justifiable and it

stands to reason. Therefore there is no ground to

admit this appeal. Accordingly appeal is

dismissed.

Sd/-

JUDGE

sd