Karnataka High Court

Sri N M Vasudevappa vs Sri S Kempanna on 24 May, 2022

Bench: Sreenivas Harish Kumar

 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.5231 OF 2021 (CPC)

BETWEEN:

Sri N. M. Vasud evappa
S/o Late N. Muniyapp a
Hindu, Aged about 60 years
R/at No.12, Kalappa Block
Near Police Station Road
Basavanagud i
Beng aluru-560 004.

Also at
Sy No.17/10-D
Near Saikrupa Heritage
Ap artments, Thanisand ra
Begnaluru-560 045.
                                       ...Appellant

(By Sri Ananth Mandgi, Senior Advocate for
 Sr Amit A. Mandgi Advocate)


AND:

1.   Sri S. Kemp anna
     S/o Late Sonnap pa
     Hindu, Ag ed about 80 years
     R/at No.347, 9 t h Main Road
     14 t h Cross, 2 n d Stage
     Indiranagara,
     Beng aluru-560 038.

2.   M/s CASA GRANDE GARDEN
     CITY BUILDERS PVT LTD
                          :: 2 ::


     A Comp any incorporated
     Und er Comp anies Act 1956
     Having its office at Salma
     Bizhouse, No.34/1, Third
     Floor, T-1 and T-2 Meanee
     Avenue Road, Near Ulsoor Lake
     Beng aluru-560 042
     Represented by its two
     Directors
     a) Sri Anerud an
     b) Sri Arun Namachivayam
        Manivannan

3.   Sri Anerud an
     Father's name not known
     to appellant, Ag ed: Major
     Director M/s Casa Grande
     Gard en City Builders Pvt. Ltd.
     Carrying on business at
     Salma Bizhouse, No.34/1
     Third Floor, T-1 and T-2
     Meanee Avenue Road
     Near Ulsoor Lake
     Beng aluru-560 042.

4.   Sri Arun Namachivayam
     Manivannan
     Father's Name not known
     to appellant
     Aged: Major
     Director M/s Casa Grande
     Gard en City Builders Pvt. Ltd.
     Salma Bizhouse, No.34/1
     Third Floor, T-1 and T-2
     Meanee Avenue Road
     Near Ulsoor Lake
     Beng aluru-560 042.
                                       ...Respondents

(By Sri B.N. Jayadeva, Advocate for C/R1;
 Sri Gop alakrishna, Advocate for C/R2)
                            :: 3 ::


    This MFA is filed under Order 43 Rule 1(r) of
CPC, ag ainst the Ord er d ated 19.07.2021 p assed on
I.A No.1 in O.S No.1783/2021 on the file of the LXIII
Additional City Civil and Sessions Judge, (CCH-64),
Beng aluru, dismissing I.A No.1 filed under Ord er 39
Rules 1 and 2 read with Section 151 of CPC.


    This MFA pertaining to Beng aluru Bench having
been heard & reserved on 05.04.2022, coming on for
pronouncement      this   d ay,      the     Court    sitting    at
Kalaburagi     Bench      through          vid eo    conferencing
pronounced the following:

                         JUDGMENT

The plaintiff in O.S.No.1783/2021 has

preferred this appeal under Order 43 Rule 1(r) of

the Code of Civil Procedure (CPC) challenging the

order of the trial court dismissing his application

filed under Order XXXIX Rules 1 and 2 of CPC for

temporary injunction against the defendants

pending disposal of the suit.

2. The plaintiff's case is as below :

:: 4 ::

He purchased 1 acre 05 guntas of land in

Sy.No.17/10A of Thanisandra Village,

Krishnarajapuram Hobli, Bengaluru East Taluk

from one Kuppuswamy under a registered sale

deed dated 29.04.1994 and also purchased

another bit of land in same survey number from

Lakshmamma W/o Kuppuswamy under another

sale deed dated 29.09.2003. In the schedule to

the plaint, he has described the land in his

possession as 1 acre 06 guntas with 04 guntas of

kharab land situate in Sy.No.17/10A, present

Sy.No.17/10D of Thanisandra village with

boundaries on four sides. His actual grievance is

that though in the sale deeds under which he

purchased the aforesaid pieces of land as

17/10A, the survey conducted in the year 2018-

19 showed that the land that he purchased was

actually situated in Sy.No.17/10D and that the

boundaries mentioned in the sale deeds actually :: 5 ::

confirmed his possession in Sy.No.17/10D, not

17/10A; and there was a mis-description of the

survey number in the sale deeds.

2.1. He alleged interference by the

defendants with his possession of the land.

When he tried to fence his land, the defendants

stopped the work. He has also pleaded that the

defendants have taken up construction by

encroaching upon his land, and in this

background he has claimed the reliefs of

declaration of title over the plaint schedule

property, mandatory injunction to remove the

unauthorized construction, damages of

Rs.50,000/- and permanent injunction to restrain

the defendants from interfering with his

possession.

2.2. The plaintiff also filed an application as

per IA No.1 under Order XXXIX Rules 1 and 2 :: 6 ::

CPC for an order of temporary injunction

restraining the defendants from interfering with

his possession of plaint schedule property. The

plaintiff stated that in view of construction work

having been taken up by encroaching on the

plaint schedule property, temporary injunction

was necessary to be issued.

3. The defendants' main contention is that

the plaintiff purchased the land in Sy.No.17/10A

and it was acquired by the BDA. The plaintiff

has filed the suit with an intention to grab their

property. They are in possession of 2 acres 21

guntas in Sy.No.17/10D of Thanisandra village,

having purchased the same under registered sale

deed dated 24.01.1975. It is also their

contention that even if it is assumed that the

plaintiff has any interest in the land bearing

Sy.No.17/10D, according to the plan produced by

the plaintiff, there is a Rajakaluve on the eastern :: 7 ::

side. There appears to be encroachments on the

northern side of his property and therefore, in

order to gain what he lost by way of

encroachment, the plaintiff might be laying claim

on their property.

3.1. So far as construction activity is

concerned, it is stated that the first defendant

has entered into a joint development agreement

with the second defendant for developing their

property. They denied encroachment.

4. The trial court has reasoned that the

plaintiff has not been able to show his

possession over the plaint schedule property and

thus, prima-facie case for grant of temporary

injunction has not been established. To arrive at

this conclusion, the trial court has held that the

sale deeds pertaining to plaintiff's property show

that he purchased the land in Sy.No.17/10A :: 8 ::

only; he has not produced any document to show

that he is in possession of land in Sy.No.17/10D

and the plaintiff has also not obtained amended

sale deed from his vendors. Further findings are

that the plaintiff's land is situated in

Sy.No.17/10A only and it was acquired by the

Bengaluru Development Authority for formation

of Arkavati Layout. As per the acquisition

notification, Sy.No.17/10D measures 5 acres and

it belonged to Sonnegowda. This land was

notified for acquisition for formation of Arkavati

Layout. But the endorsement dated 15.06.2013

issued by the BDA would show that a decision

was taken to denotify the first defendant's

property in Sy.No.17/10D; the plaintiff failed to

produce a document indicating exclusion of his

land from notification. In this view, the

plaintiff's land vested with the government and

thus it is difficult to say that plaintiff has :: 9 ::

possession of plaint schedule property. It is also

another observation of the trial court that the

plaintiff has suppressed the fact of acquisition

proceeding.

5. Sri Ananth Mandgi, learned senior

counsel argued on behalf of Sri Amit A Mandgi,

for the appellant. Sri B.N.Jayadeva and Sri

Gopalakrishna, advocates appearing respectively

for respondents 1 and 2 addressed their

arguments. Sri B.N.Jayadeva also filed his

written submissions.

6. The first and foremost point of

argument of Sri Ananth Mandgi was that the

failure of the trial court to understand the scope

of the suit resulted in erroneous order being

passed on the application for temporary

injunction filed by plaintiff/appellant. He argued

that though the sale deeds under which the :: 10 ::

plaintiff purchased the property recited that two

pieces of land in Sy.No.17/10A were sold to him,

the purchased land is not situated in the said

survey number, rather it is a part of land in

Sy.No.17/10D. There was a mis-description of

survey number in the sale deeds; the boundaries

mentioned in the sale deeds confirm the

plaintiff's possession in Sy.No.17/10D. Taking

me through the survey report he tried to

emphasize that the plaintiff is in possession of

land to an extent of 1 acre 6 guntas in

Sy.No.17/10D only. He argued that whenever

there is mis-description of property, a

declaratory suit is maintainable and in this

regard he placed reliance on the judgment of the

Supreme Court in the case of SHEODHYAN

SINGH AND ORS. VS. SANICHARA KUER AND

ORS [MANU/SC/0283/1961].

:: 11 ::

6.1. Sri Ananth Mandgi further argued that

the trial court ignored a notification issued by

the BDA to the effect that the plaintiff's land i.e.,

plaint schedule property was also dropped from

acquisition. This notification was in fact

produced, but it has been wrongly held that the

plaintiff has not produced any document relating

to denotification of his property. He also

referred to a caveat petition filed by the

defendant and argued that in the cause title of

the caveat, the plaintiff is shown to be a resident

of a house in Sy.No.17/10D. He also referred to

a sale deed dated 28.07.2016 executed by the

first defendant and his wife to argue that even in

this sale deed, the western boundary of the land

sold by them in Sy.No.18/1 is shown as land

belonging to the plaintiff. Therefore the

defendants admit the plaintiff's possession.

They have also admitted the construction work.

:: 12 ::

In the light of these facts and circumstances, the

trial court ought to have restrained the

defendants from going ahead with construction.

He submitted that not only prima-facie case

exists, but also balance of convenience lies in

favour of plaintiff. If the defendants complete

the construction, the plaintiff will certainly find it

difficult to obtain possession in view of nature of

construction.

7. Sri B.N.Jayadeva and Sri Gopalakrishna

retorted the argument of Sri Ananth Mandgi by

raising the points that the trial court has rightly

exercised discretion to dismiss the application

for temporary injunction. In an appeal under

Order 43 Rule 1 CPC, interference with trial

court's order is unwarranted unless there is

perversity in the findings. Their main point of

argument was that when the plaintiff challenged

the acquisition notification in the writ petition, :: 13 ::

he mentioned the survey number as 17/10A.

Therefore he possesses the land in

Sy.No.17/10A; the defendants have taken up

construction in the land belonging to them in

Sy.No.17/10D, upon which the plaintiff cannot

lay claim at all. He also argued that the

defendants were not aware of any survey that

the plaintiff would refer to, and that none of

them was notified before conducting survey.

These being the factual aspects, if injunction is

granted, the defendants will suffer greater

hardship than the plaintiff as they have invested

huge sums of money in the construction work.

He argued that the plaintiff failed to pass the

test of establishing prima-facie case and this has

been rightly observed by the trial court. He

submitted that the plaintiff has suppressed the

fact of acquisition proceedings and in this view :: 14 ::

also the plaintiff is not entitled to claim

temporary injunction.

8. This Court, while deciding an appeal

filed under Order 43 Rule 1 CPC, can interfere

with the impugned order, only if it is found that

the trial court has not properly exercised its

discretion. If any of the documents, having

bearing on the controversy is not considered, it

can be said that the order under challenge is the

outcome of improper application of mind.

9. Now if the impugned order is read, it

seems that the trial court appears to have

proceeded on the ground that the plaintiff has

sought declaration of title in respect of land to

an extent of 1 acre 6 guntas plus 4 guntas of

kharab in Sy.No.17/10A which was subsequently

assigned the number 17/10D. Of-course, it

cannot be denied that the manner in which the :: 15 ::

plaint is drafted gives rise to entertain such an

impression, but if para 7 of the plaint is seen,

what is stated is that in the year 2011-12, the

plaintiff learnt that he was in actual possession

of land in Sy.No.17/10D, not Sy.No.17/10A. The

boundaries mentioned in his sale deeds would

only confirm his possession in Sy.No.17/10D. It

is also averred in para 8 of the plaint that in the

survey that was held during the year 2018-19,

04 guntas of kharab land was attached to plaint

schedule land and thus the plaintiff claims

possession of 1 acre 10 guntas of land. Whether

plaintiff can lay claim on the kharab land or not,

but his sale deeds disclose right over 1 acre 06

guntas of land. Actual issue to be tried in the

suit is whether the plaintiff purchased the land in

Sy.No.17/10A or 17/10D.

10. If there is mis-description in a

document, it can be corrected by executing a :: 16 ::

rectification deed. If for any reason rectification

cannot be obtained, person affected by wrong

description can file a suit seeking declaration. In

the case of SHEODHYAN SINGH (supra), the

Hon'ble Supreme Court has held:

"7. We are of opinion that the present case is analogous to a case of misdescription. As already pointed out the area, the khata number and the boundaries all refer to plot No.1060 and what has happened is that in writing the plot number, one zero has been missed and 1060 has become 160. It is also important to remember that there is no plot bearing No.160, in khata No.97. In these circumstances we are of opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property sold is well established namely, that it is plot No.1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in :: 17 ::

the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The contention of the appellants therefore with respect to this plot must fail."

11. Here the plaintiff complains of mis-

description of survey number, not the

boundaries. It is true that even in the sale

deeds of the predecessors in title of the plaintiff,

the survey number is mentioned as 17/10A only

and this continued in the plaintiff's sale deeds

also. The trial court, by observing that the

plaintiff ought to have obtained amended sale

deeds from his vendors, has failed to understand

the scope of the suit and this has misdirected the

trial court to record a finding that the plaintiff's :: 18 ::

possession in the schedule property is not

forthcoming.

12. The plaintiff has produced some survey

documents which show his possession in the land

bearing Sy.No.17/10D. The defendants may

have contended that the survey was conducted in

their absence, but until and unless, they are set-

aside by a competent authority, they have

presumptive value.

13. Another finding of the trial court is that

the plaintiff has not produced any document

regarding denotification of his land. This finding

is apparently wrong in as much as the trial court

has ignored an endorsement issued by the BDA.

This was in fact produced, but not looked into.

The endorsement dated 04.06.2013 clearly

shows that 1 acre 06 guntas of land in :: 19 ::

Sy.No.17/10D belonging to Vasudevappa i.e., the

plaintiff was excluded from acquisition action.

14. There are two more documents that are

not considered by the trial court. The first one is

the order passed by the Deputy Commissioner,

Bengaluru District granting conversion of 1 acre

06 guntas of land in Sy.No.17/10D into

residential purpose, and this order was passed

on the application of the plaintiff. The second

document is a letter dated 27.03.2012 addressed

by the Tahsildar of Bengaluru East Taluk to the

Assistant Commissioner of Bengaluru North Sub

Division. This letter indicates that the revenue

records pertaining to the plaintiff required

correction as he was found to be in possession of

two pieces of land in Sy.No.17/10D though in his

sale deeds the survey number was mentioned as

17/10A. All the more important is what is stated

in the written statement filed by the first :: 20 ::

defendant, in para 8(ii) and (iii) that are

extracted here.

8(ii) "It is further submitted that even if the boundaries do match, the same does not confer any title on the plaintiff in respect of land in Sy.No.17/10D when he has purchased the land under sale deed dated 19.09.1994 being and as it is in Sy.No.17/10A and the plaintiff is put to strict proof of the same".

8(iii) "The further claim of the plaintiff that there were variations between the boundaries in the sale deeds and boundaries of the land in the physical possession of the plaintiff even if true and it is for the plaintiff to establish the same".

(emphasis supplied)

15. Therefore it is possible to draw an

inference at this stage that the first defendant is :: 21 ::

also aware of the fact that the plaintiff is in

possession of land in Sy.No.17/10D.

16. In the caveat petition filed by the

defendants, the plaintiff is shown to be a

resident of house in Sy.No.17/10D, and in the

sale deed dated 28.07.2016 executed by the first

defendant and his wife in favour of Mr.

Mohammed Shafiq Arshad in respect of their land

in Sy.No.18/1, the western boundary is shown as

land belonging to the plaintiff. These two

documents are also not considered by the trial

court.

17. The trial court has held that there is

suppression of facts by the plaintiff as he has not

stated anything about acquisition. I do not think

that the plaintiff has framed the suit in the

background of acquisition proceeding. Therefore

the observation of trial court is not correct.

:: 22 ::

18. The above analysis shows that the

plaintiff's possession is forthcoming in the land

bearing Sy.No.17/10D. If survey was not

conducted in the presence of defendants, the

trial court may order for survey once again

depending on the circumstances emerging during

trial. The defendants have also contended that

the plaintiff appears to have laid claim on their

land in order to make good the loss of land due

to encroachment by others. These are all triable

issues, thus prima-facie case is established.

19. So far as balance of convenience and

comparative hardship is concerned, it is not in

dispute that the defendants have taken up

construction; and the first defendant has entered

into a joint development agreement with second

defendant. If really there is encroachment by

the defendants on the property belonging to the

plaintiff, the latter finds it difficult to recover :: 23 ::

possession from the persons to whom the

defendants may sell the apartments or flats after

completion of construction work. This leads to

another round of litigation. In fact, the

defendants were directed to file an affidavit

stating that they would not claim equity in case

the plaintiff would succeed in the suit but they

did not file the same.

20. The defendants might have started

construction; and they may suffer loss if

construction is stopped. But this cannot be the

reason for denying order of injunction, for if the

construction is coming up in the plaintiff's

property, he must get the benefit of decree if he

succeeds in the suit. A condition may be

imposed on the plaintiff for protecting the

interest of the defendants. For all these

reasons, I hold that balance of convenience as :: 24 ::

also the comparative hardship lie in favour of

plaintiff.

21. Therefore with this discussion, a clear

conclusion can be drawn that the trial court has

erred in dismissing the application for temporary

injunction. In this view the following:

ORDER

Appeal is allowed.

Order dated 19.07.2021 on IA No.1

filed by the plaintiff in

O.S.No.1783/2021 on the file of the

LXIII Additional City Civil and Sessions

Judge, Bengaluru, is set-aside. The

application is allowed and the

defendants are restrained from

constructing any building in the plaint

schedule property till disposal of the

suit.

:: 25 ::

The plaintiff is hereby directed to

execute a bond undertaking to make

good the loss that the defendants may

suffer on account of stoppage of

construction, in case his suit is

dismissed. The plaintiff shall execute

the bond before the trial court within

four weeks from today. If he fails to

execute the bond, the order of

temporary injunction granted now will

not come into force and the plaintiff

shall not seek extension of time for

execution of bond either before or after

expiry of four weeks.