Sri R Devaraju vs Sri H Muninarayana
2022 Latest Caselaw 7358 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24 T H DAY OF MAY, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

            MFA NO.1376 OF 2022 (CPC)

BETWEEN:

1.   Sri R. Devaraju
     S/o Late Ramaiah
     Aged about 40 years
     R/at : Bid ara Agrahara Villag e
     Bid arahalli Hobli
     Beng aluru East Taluk
     Beng aluru-560049.

2.   Smt. Roop a
     W/o Sri K.S Mahesh
     Aged about 36 years
     R/at: No.184, Amrutha Nilaya
     Kittag anahalli
     Beng aluru Taluk
     Beng aluru-560099.
                                        ...Appellants

(By Sri D.R. Ravishankar, Senior Counsel for
     Sri Saravana S, Advocate)


AND:

1.   Sri H. Muninarayana
     S/o Late Gurumurthy
     Aged about 45 years

2.   Sri H.G. Suresh
     S/o Late Gurumurthy
     Aged about 43 years
                            :: 2 ::


3.   Sri H.G. Ravi @ Jagg a
     S/o Late Gurumurthy
     Aged about 36 years

4.   Sri H.G. Chand ra
     S/o Late Gurumurthy
     Aged about 33 years

     All are residing at
     Hoodi Village
     K.R.Puram Hob li
     Beng aluru-560016.

5.   Sri H.G. Narayanaswamy
     S/o Late Dodd a Gund appa
     Aged about 56 years

6.   Sri H.G. Nagaraj a
     S/o Late Dodd a Gund appa
     Aged about 54 years

     Defend ant 1 and 2 are
     R/at Hoodi Village
     K.R.Puram Hob li
     Beng aluru-560016.

7.   Smt. Jayamma
     D/o Late Chikkag und app a
     (W/o H.M Ramakrishna)
     Aged about 67 years
     R/at: No.534, 5 t h Cross
     Hoodi, Mahad evapura post
     Beng aluru-560 048.

8.   Smt. Nag amma
     D/o Late Chikkag und app a
     (W/o Veerabhad raiah)
     Aged about 54 years
     R/at: No.94/77, 1 s t Main
     Garud acharp alya
     Mahadevapura Post
     Beng aluru-560 048.
                         :: 3 ::


9.    Smt. Gund amma
      D/o Late Chikkag und app a
      (W/o Rajapp a),Aged about 59 years
      R/at No.536, 5 t h Cross
      Hoodi, Mahad evapura post
      Beng aluru-560 048.

10.   Smt. Gouramma
      D/o Late Chikkag und app a
      (W/o Pad manabha)
      Aged about 54 years
      R/at Doddakannalli Colony
      Karmelam Post, Sarjap ura Road
      Beng aluru-560 038.

11.   Smt. Chikkag auramma
      W/o Late Hanumanthappa
      Aged about 83 years

12.   Smt. H. Manjunatha
      S/o Late Hanumanthapp a
      Aged about 46 years

13.   Sri N Munikrishnapp a
      S/o Late Narayanapp a
      Aged about 57 years

14.   Sri N Munieendra
      S/o Late Narayanapp a
      Aged about 54 years

15.   Sri N Muniyapp a
      S/o Late Narayanapp a
      Aged about 51 years

16.   Sri N Gurumurthy
      S/o Late Narayanapp a
      Aged about 48 years

17.   Sri N Shankar
      S/o Late Narayanapp a
      Aged about 40 years
                          :: 4 ::


      Defend ants 11 to 17 are
      Residing at Hood i Village
      K.R. Puram Hobli
      Beng aluru East Taluk-560016.

18.   Sri H.A. Nag app a
      S/o Late Annapp a
      Aged about 54 years
      R/a Hoodi Village
      K.R Puram Hobli
      Beng aluru East Taluk-560016.

19.   Sri Muniyapp a
      S/o Gundlapp a @ Gund appa
      Aged about 49 years
      R/at : Thig alara Palya
      Hoodi, Beng aluru-560 105.

20.   Smt. Nag arathna
      D/o Muniobaiah
      Aged about 59 years

21.   Smt. Sakamma
      W/o Late Venkatesh
      Aged about 40 years

22.   Smt. Mala
      W/o Late Venkatesh
      Aged about 40 years

23.   Kum. Sukanya
      D/o Late Venkatesh
      Aged about 22 years

24.   Master Tilak
      S/o Late Venkatesh
      Aged about 19 years

25.   Smt. Parvathamma
      D/o Shivappa
      Aged about 29 years
                          :: 5 ::


26.   Smt. Meena
      D/o Shivappa
      Aged about 27 years

27.   Kum. Sneha
      D/o Shivappa
      Aged about 24 years

      Defend ants 20 to 27 are
      R/a Hoodi Village
      K.R. Puram Hobli
      Beng aluru East Taluk
      Beng aluru-560016.

28.   Sri Chinnab iddap pa @
      Chikkabidd app a
      S/o Talavara Hanumapp a
      Aged about 74 years

29.   Sri H.C. Krishnap pa
      S/o Chinnab iddappa
      Aged about 46 years

30.   Sri H.C Ramesh
      S/o Chinnab iddappa
      Aged about 44 years

31.   Smt. H.C. Shanthamma
      D/o Chinnabidd appa
      Aged about 41 years

32.   Sri H.C. Narayanaswamy
      S/o Chinnab iddappa
      Aged about 38 years

33.   Sri H.C. Munikrishna
      S/o Chinnab iddappa
      Aged about 34 years

34.   Smt. H.C. Sumithra
      D/o Chinnabidd appa
      Aged about 30 years
                          :: 6 ::



      Defend ants Nos.28 to 34 are
      R/at Basavanna Nag ara
      Hoodi Village, K.R.Pura Hobli
      Beng aluru East Taluk
      Beng aluru-560 016.

35.   Sri H.G. Sundara Ram Reddy
      S/o Late H.M Gurumurthy Reddy
      Aged about 73 years
      R/at : No.813, Rajap alyam
      Hoodi Village, Beng aluru East Taluk
      Beng aluru-560 016.

36.   Sri N. Manjunath
      S/o Late Narayanapp a
      Aged about 46 years
      R/at Deep ti Nilaya
      Kagg ad asap ura
      C.V. Ramannag ar Post
      Beng aluru-560 093.

37.   Smt. S.Devatha
      W/o K. SriramalyShetty
      Aged about 74 years

38.   Sri K. Sriramalu Shetty
      S/o Krishnaiah Shetty
      Aged about 81 years

      Defend ant No.37 & 38 are
      R/at : Devatha Plaza, No.95
      Old Mad ras Road
      Halasuru, Bengaluru-560 008.

39.   Sri A Prabhakar Naid u
      S/o Pap anna
      Aged about 51 years
      R/at Mudigubb a Mandal
      Ananthapur District
      And hra Pradesh-510051.
                          :: 7 ::


40.   Sri K. Mashu
      S/o Kod and a Reddy
      Aged Major
      R/at No.222, A Narayanap ura
      Dooravaninag ar Post
      Beng aluru-560 016.

41.   Sri Ramachand ra
      S/o Muninag aiah
      Aged Major
      R/at No.140,
      Kote Temp le Road Street
      Opp. Anjaneya Temple
      New Police Station Road
      K.R.Puram, Bengaluru East
      Beng aluru-560 036.

42.   Sri Suresh Batia
      Aged Major
      M/s High Point Finance Pvt. Ltd .
      Office at : NHO.4406/7/8
      Hig h Point IV No.45, Palace Road
      Beng aluru-560 001.

43.   Sri C. Venkatesh @ Bar Venkatesh
      S/o Chikkavenkatashamapp a
      Aged about 54 years
      R/at Siddapp a Layout
      Devasandra, K.R.Puram
      Beng aluru-560 036.
                                          ...Respondents

(By Sri S. Srivatsa, Senior Counsel for
 Sri R.R.Devendra Gowd a Advocate for R1 to R4;
 Sri Venkatachalapathi, Advocate for R39
 Notice to R5 to R38 & R40 to R43 dispensed with)


      This MFA is filed under Order 43 Rule 1(r) read
with Section 151 of CPC, ag ainst the Order dated
03.02.2022 p assed in O.S No.27014/2013 on the file
                               :: 8 ::


of the LXXIII Ad ditional City Civil and Sessions Judge,
Mayo    Hall Unit,    Beng aluru, (CCH-74),             allowing   I.A
filed und er Ord er 39 Rules 1 and 2 of CPC.

       This MFA pertaining to Beng aluru Bench having
been heard & reserved on 18.04.2022, coming on for
pronouncement        this   d ay,       the     Court    sitting    at
Kalaburagi     Bench        through           vid eo    conferencing
pronounced the following:

                        JUDGMENT

Heard Sri D.R.Ravishankar, learned senior

counsel appearing on behalf of Sri Saravana S,

learned counsel for the appellants and Sri

Srivatsa, learned senior counsel who appeared

on behalf of Sri R.R.Devendra Gowda, learned

counsel for respondents 1 to 4, the contesting

respondents. Notice to other respondents was

dispensed with as their presence is not necessary

for disposal of this appeal.

2. The appellants are defendants 40 and

41 who got themselves impleaded in the suit

O.S.No.27014/2013 pending in the Court of 73 r d :: 9 ::

Additional City Civil and Sessions Judge,

Bengaluru. Respondents 1 to 4 are the plaintiffs,

who have sought declarations that sale deeds of

different dates executed by some of the

defendants do not bind their interest and

permanent injunction.

3. The case of plaintiffs/respondents 1 to

4 is that the sale deeds in respect of which

declaratory reliefs have been sought are as a

result of misusing a general power of attorney

executed by plaintiffs' grandparents Sri

Gurumurthy and Gundamma. It is stated that

Gurumuthy and Gundamma executed a general

power of attorney in favour of Smt. Devata

(defendant No.33) for obtaining conversion of 4

acres 15 guntas of land in Sy.No.42 of

Kodigehalli village. The power of attorney

holder, instead of applying for conversion,

executed two registered sale deeds on 11.1.1995 :: 10 ::

in favour of her husband Sriramulu Shetty

(defendant No.34) who then sold 1 acre 20

guntas in favour of Sri D.M.Nagaraju. Later

D.M.Nagaraju and his brothers realized the

defect in the title of their vendor as the power of

attorney executed by Gurumurthy and

Gundamma did not authorize Smt. Devata to

execute a sale deed and therefore they

approached the plaintiffs and their mother and

obtained confirmation deed in respect of 1 acre

20 guntas. It is further pleaded that Sy.No.42

totally measures 11 acres 20 guntas and one

Kenchamma, mother of defendants 3 to 6 filed a

suit, O.S.No.384/1994 for partition claiming

1/6 t h share. The said suit was decreed and a

preliminary decree was passed. Then a

proceeding for final decree was initiated. It

appears that before final decree was drawn,

defendants 3 to 6 got transferred to their names :: 11 ::

katha in respect of 1 acre 33 guntas and then

executed agreements of sale in favour of

defendants 36 to 39. FDP was closed on the

basis of a memo filed by defendants 3 to 6

stating that the matter was settled out of Court.

Then they executed sale deeds in favour of

defendants 40 and 41 in respect of 1 acre 33

guntas of land. It was in this context defendants

40 and 41 came on record in the present suit.

Thereafter the plaintiffs filed an application

under Order XXXIX Rules 1 and 2 of CPC for

temporary injunction against defendants 40 and

41 in order to stop construction by them. The

said application has stood allowed.

4. Sri D.R.Ravishankar argued that the

final decree proceeding was closed because of

out of court settlement among the parties and

this was the reason for defendants 40 and 41

purchasing 1 acre 33 guntas of land. He also :: 12 ::

submitted that without final decree being drawn,

the plaintiffs sold 1 acre 20 guntas of land in

favour of D.M.Nagaraj and this would show that

the vendors of defendants 40 and 41 had right to

sell away their share. This being the actual

factual position, defendants 40 and 41 cannot be

restrained from constructing a building in the

land purchased by them.

5. Sri Srivatsa submitted that defendants

40 and 41 were very much aware that FDP was

closed upon a memo filed by defendants 3 to 6.

Sy.No.42 totally measures 11 acre 20 guntas. If

really there was out of court settlement, copy of

the terms of settlement could have been

produced. Without final decree, there was no

identification of share of the vendors of

defendants 40 and 41. In this view the plaintiffs

are justified in seeking an order of temporary

injunction against defendants 40 and 41.

:: 13 ::

6. Having considered the arguments, it

may be stated that this court cannot interfere

with the order of temporary injunction if it is

found that the trial court has properly exercised

discretion in the background of facts and

circumstances of the case. The trial court has

recorded the reasons that the defendants 40 and

41 have admitted that they purchased a portion

of property belonging to the plaintiffs and other

guntas without there being a final decree. In

this view, the plaintiffs can seek an order of

injunction for preservation of the property. It is

observed that all the three essential ingredients

for grant of temporary injunction are present.

With these observations, application was

allowed.

7. The reasons thus given by the trial

court for injuncting defendants 40 and 41 are :: 14 ::

proper and justifiable in the given set of facts

and circumstances. It is not disputed that after

preliminary decree, final decree was not drawn.

If there was an out of court settlement during

pendency of the final decree proceedings, a copy

of the document containing terms of settlement

could have been produced. In fact, Sri

D.R.Ravishankar took time to produce a copy,

but it was not produced. Though in the

statement of objections filed by defendants 40

and 41 to the application for temporary

injunction it is stated that the share allotted to

Kenchamma was specified by boundaries, and it

was the land sold to defendants 40 and 41, there

is no document in proof of a settlement that took

place during pendency of final decree

proceeding. In this view, a question as to how

there could be a sale of unidentified property to

defendants 40 and 41 who are not members of :: 15 ::

plaintiffs' family arises. Thus seen the view

expressed by the trial court stands to reason.

8. It is true that the plaintiffs have also

sold 1 acre 20 guntas in favour of D.M.Nagaraj

and others. Because of this sale, a question

would obviously arise as to how they can seek an

order of temporary injunction. Because of

another view being possible to be taken, the

appellate Court cannot upset the order passed by

the trial court.

9. That apart, it may be stated that the

defendants 40 and 41 were not the original

defendants in the suit. They came on record on

their own thinking that their right is involved in

the suit. Having got impleaded in the suit, they

became defendants 40 and 41. That means they

have invited the risk of contesting the suit.

Though they are now defendants on par with :: 16 ::

other defendants, it may be stated that they,

having come on record to face the risk of

litigation, cannot change the nature of the

property said to have been purchased by them.

Thus seen, this appeal is devoid of merits and

therefore it is dismissed.

IA No.1/2022 does not survive for

consideration. It stands disposed of accordingly.

Sd/-

JUDGE

Kmv/-