Karnataka High Court
Smt Gangamma vs Sri Basavarajaiah on 30 March, 2022
Bench: Sreenivas Harish Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MFA NO.2864 OF 2022 (CPC)
BETWEEN:
1. Smt. Gang amma
W/o Late Venkataramanapp a
Aged about 61 years
2. Smt Rajamma
D/o Late Venkataramanapp a
Aged about 11 years
3. Smt Chand ramma
D/o Late Venkataramanapp a
Aged about 39 years
4. Smt Padmavathi
D/o Late Venkataramanapp a
Aged about 37 years
5. Smt Radhamani
D/o Late Venkataramanapp a
Aged about 35 years
6. Smt Gowramma
W/o Late Veerathimmaiah
Aged about 59 years
7. Smt Sunand amma
D/o Late Veerathimmaiah
Aged about 36 years
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8. Sri Chandrashekar A.V
S/o Late Veerathimmaiah
Aged about 32 years
9. Sri Venkatesh A.V
S/o Late Veerathimmaiah
Aged about 30 years
All the appellants are residing at
Avverahalli Village, Somp ura Hob li
Nelamang ala Taluk
Beng aluru Rural District-562 123. ...Appellants
(By Sri V.F. Kumbar, Advocate)
AND:
1. Sri Basavarajaiah
S/o Late Eregowda
Aged about 76 years
2. Sri A.B. Ravikumar
S/o Basavarajaiah
Aged about 48 years
3. Sri A.B. Bhoopal
S/o Basavarajaiah
Aged about 46 years
4. Sri A.B. Palanethra
S/o Basavarajaiah
Aged about 43 years
5. Sri A.B. Nrup athung araju
S/o Basavarajaiah
Aged about 41 years
All the respond ents are residing at
Avverahalli Village, Somp ura Hob li
Nelamang ala Taluk
Beng aluru Rural District-562 123. ...Respond ents
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(By Sri Padmanabha V. Mahale , Sr. Counsel for
Sri D.S Nagaraj, Advocate)
This MFA is filed und er Order 43 Rule 1 (r) R/w
Section 151 of CPC, ag ainst the order dated
10.03.2022 p assed on I.A No.1 in O.S No.206/2021 on
the file of the II Additional Senior Civil Judge,
Nelamang ala, rejecting the I.A No.1 filed under Order
39 Rule 1 and 2 of CPC.
This MFA coming on for admission this d ay, the
Court delivered the following:
JUDGMENT
I have heard the learned counsel for the
appellants and the respondents.
2. This appeal is filed by the plaintiffs in O.S.
206/2021 on the file of II Additional Senior Civil
Judge, Nelamangala. Their case is that one
Eregowda s/o Annaiah gifted 1 acre 10 guntas of
land in Sy. 79/1B to one Rajamma by executing a
gift deed dated 14.11.1957. The grandfather of
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plaintiff No. 9 namely Munivenkataiah purchased
the very same land from Rajamma on 16.5.1964.
But in the gift deed and also in the sale deed
instead of mentioning the survey number as
79/1B, it was wrongly mentioned as 66/1.
However, the boundaries were correctly written in
both the deeds. Then the KIADB notified the
property bearing Sy. No. 66/1 for acquisition.
When the survey was conducted at the time of
acquiring the land, the plaintiffs noticed that the
survey number was wrongly written in the gift
deed and the sale deed as 66/1 instead of 79/1B.
Taking advantage of the wrong mentioning of the
survey number, defendants denied the title of the
plaintiffs over the suit property and therefore they
brought the suit claiming title in respect of land in
Sy. No. 79/1B and to declare that the release deed
dated 10.1.2020 does not bind them and for other
consequential reliefs. In the suit they also made
an application for temporary injunction to restrain
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the defendants from interfering with their peaceful
possession and enjoyment of 1 acre 10 guntas of
land in Sy. No. 79/1B of Avverahalli Village,
Sompura Hobl, Nelamangala Taluk. The trial court
dismissed the said application and hence this
appeal by the plaintiffs.
3. The trial court has given the reasons that
both in the gift deed and the sale deed, survey
number is mentioned as 66/1. Whether it was a
wrong description or not and whether the plaintiffs
are in possession of land within the boundaries
mentioned in the two deeds, is a matter of trial.
At this stage, it is not possible to come to a clear
conclusion that the plaintiffs are actually in
possession of Sy. No. 79/1B. Prima facie case is
not made out for granting temporary injunction.
4. Sri V.F.Kumbar, learned counsel for the
appellants, submits that except the fact that there
is wrong mentioning of the survey numbers in the
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gift deed and the sale deed, the actual possession
is with the plaintiffs. The photographs produced
by the plaintiffs clearly show that the plaintiffs are
in possession and if injunction is refused, the
defendants will dispossess them.
5. On the other hand, Sri Padmanabha
Mahale, learned senior counsel for the
respondents, submits that when land in Sy. No.
66/1 was notified for acquisition by KIADB, the
plaintiffs made an application for receiving the
compensation and this itself would show that the
plaintiffs were aware that actually their land is
situated in Sy. No. 66/1 and not in Sy. No. 79/1B.
6. Having heard both sides, it may be stated
that the plaintiffs brought the suit for declaration
of title in the year 2021 asserting that only when
the KIADB notified for acquisition they came to
know that the survey number was not correctly
mentioned in the gift deed and the sale deed. The
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gift deed was executed on 14.11.1957 and that the
grandfather of 9 t h plaintiff purchased the land on
16.5.1964. Neither the donee under the gift deed
nor the purchaser under the sale deed dated
16.5.1964 took any action for rectification of the
survey number. As argued by Sri Padmanabha
Mahale, if the plaintiffs made an application for
receiving compensation when the land in Sy. No.
66/1 was notified for acquisition, then under what
right they made such application assumes
importance. They would not have applied for
compensation unless they were the owners of the
land in Sy. No. 66/1. If really there is wrong
mentioning of the survey number in the gift deed
and the sale deed, it is a matter of trial. No
inference can be drawn at this stage merely
looking at the photographs. Rightly the trial court
has come to conclusion that the plaintiffs have
failed to make out a prima facie case. When prima
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facie case does not exist, temporary injunction
cannot be granted. Appeal is therefore dismissed.
Sd/-
JUDGE
ckl/-
