Karnataka High Court
B. Prabhanjana vs G. Santhiram 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.6158 OF 2019(CPC)
C/W
MFA NO.6157 OF 2019 (CPC),
MFA NO.6159 OF 2019(CPC) AND
MFA NO.6160 OF 2019(CPC)
IN MFA N O.6158 OF 2019
BETWEEN:
1. Basi Reddy Jayarami Reddy
S/o B. Subba Reddy
R/at Ling a Reddy Palli Villag e
Kalsap ad u Mand alam
Cuddap ah District
And hra Pradesh-516 217.
2. Koppolu Narasimha Reddy
S/o Late Koppolu Jang am Reddy
R/at No.7-4-76
Chemudur
Chennamp alli Panchanyithi
Badavel Mand amala
Cuddap ah District
And hra Pradesh-516 227.
3. BSR Build ers & Develop ers
A p rop rietorship concern
By its Prop rietor
Mr. B. Subb a Red dy
S/o B. Venkata Subba Reddy
Aged about 46 years
Having office at No.100/37/5
NGR Layout
Roopena Agrahara
:: 2 ::
Near Silk Board
Behind Mahend ra Showroom
Hosur Road
Beng aluru-560068.
...Appellants
(By Sri Sharath S. Gowd a , Advocate)
AND:
1. G. Vasundara Lakshmi
W/o S. Venkataramudu
Aged about 62 years
R/at No.385, 'A' Cross
26 t h Main, Jayanag ar
Beng aluru-560069.
(Represented Attorney Holder)
S. Sunil Kumar
W/o S. Venkataramudu
R/at No.385, 38 t h 'A' Cross
26 t h Main, Jayanag ar
Beng aluru-560069.
2. T.S. Anilkumar
S/o T. Srinivasa Murthy
Aged about 53 years
No.2, 9 t h Main
BSK 2 n d Stag e
Beng aluru-560070.
3. R. Manjunatha
S/o H.K. Ramegowda
Aged about 50 years
R/at No.1174
Paduvana Road
1 s t Cross, 4 t h Stage
T.K. Layout
Mysore-570022.
4. Dr D. Srinidhi
S/o V.R. Dwarakanath
:: 3 ::
Aged about 47 years
Present R/at No.1309
Rajeeva Ranjitha
15 t h Cross, 2 n d Phase
Girinag ar
Bang alore-560085.
...Respondents
(By Sri K.B.S Manian, Advocate for C/R1;
Notice to R2 to R4 is d isp ensed with
vid e ord er d ated 04.12.2019)
This MFA is filed under Order 43 Rule 1(r) read
with Section 151 of the CPC, ag ainst the order dated
15.07.2019 passed on I.A No.2 in O.S NO.1455/2018
on the file of the XIX Additional City Civil & Sessions
Judge, Beng aluru City (CCH-18), allowing I.A.No.2
filed und er Ord er 39 Rules 1 & 2 read with Section
151 of CPC.
IN MFA N O.6157 OF 2019
BETWEEN:
1. B. Prabhanjana
W/o B. Venkata Reddy
Aged about 35 years
R/at House No.6
Sy. No.89/5
Lokesh Nilaya
1 s t Floor, 1 s t Cross
Behind Karnataka Bank
Belland ur
Bang alore-560103.
2. BSR Build ers & Develop ers
A p rop rietorship concern
By its Prop rietor
Mr. B. Subb a Red dy
:: 4 ::
S/o B. Venkata Subba Reddy
Aged about 46 years
Having office at No.100/37/5
NGR Layout
Roopena Agrahara
Near Silk Board
Behind Mahend ra Showroom
Hosur Road
Beng aluru-560068.
...Appellants
(By Sri Sharath S. Gowd a , Advocate)
AND:
1. G. Santhiram
S/o P K Gop alan
Aged about 53 years
R/at No.383/B
Railway Officer's Quarters
MG Railway Colony
Magadi Road Post
Beng aluru-560023.
2. T.S. Anilkumar
S/o T. Srinivasa Murthy
Aged about 53 years
No.2, 9 t h Main
BSK 2 n d Stag e
Beng aluru-560070.
3. R. Manjunatha
S/o H.K. Ramegowda
Aged about 50 years
R/at No.1174
Paduvana Road
1 s t Cross, 4 t h Stage
T.K. Layout
Mysore-570022.
4. Dr. D. Srinidhi
S/o V.R. Dwarakanath
:: 5 ::
Aged about 47 years
Present R/at No.1390
Rajeeva Ranjitha
15 t h Cross, 2 n d Phase
Girinag ar
Beng aluru-560085.
...Respondents
(By Sri K.B.S Manian, Advocate for C/R1;
Notice to R2 to R4 is d isp ensed with
vid e ord er d ated 04.12.2019)
This MFA is filed under Ord er 43 Rule 1 (r) of
CPC, against the order d ated 15.07.2019 p assed on
I.A No.2 in O.S No.1452/2018 on the file of the XIX
Additional City Civil & Sessions Judge, Beng aluru City
(CCH-18), allowing I.A No.2 filed under Order 39 Rule
1 & 2 read with Section 151 of CPC.
IN MFA N O.6159 OF 2019
BETWEEN:
1. Smt. Rajlaxmi N Palagulla
W/o Narayan Red dy
Aged about 39 years
R/at Hajira Enclave
Sapthagiri P.G. For Ladies
No.1 and 2, 81/2, 1 s t Cross
Chanukya Layout
Arabic College Post
Nag avara
Beng aluru-560045.
2. BSR Build ers & Develop ers
A p rop rietorship Concern
By its Prop rietor
Mr. B. Subb a Red dy
S/o B. Venkata Subba Reddy
Aged about 46 years
:: 6 ::
Having office at No.100/37/5
NGR Layout
Roopena Agrahara
Near Silk Board
Behind Mahend ra Showroom
Hosur Road
Beng aluru-560068.
...Appellants
(By Sri Sharath S. Gowd a , Advocate)
AND:
1. M. Haroonal Rasheed
S/o Late Mazharul Hakh
Aged about 67 years
R/at No.26/2
1 s t Cross, Marappa Gard en
Benson Town Post
Beng aluru-560046.
2. T.S. Anilkumar
S/o T. Srinivasa Murthy
Aged about 53 years
No.2, 9 t h Main
BSK 2 n d Stag e
Beng aluru-560070.
3. R. Manjunatha
S/o H.K. Ramegowda
Aged about 50 years
R/at No.1174
Paduvana Road
1 s t Cross, 4 t h Stage
T.K. Layout
Mysore-570022.
4. Dr D. Srinidhi
S/o V.R. Dwarakanath
Aged about 47 years
R/at No.1309
Rajeeva Ranjitha
:: 7 ::
15 t h Cross, 2 n d Phase
Girinag ar
Bang alore-560085.
...Respondents
(By Sri K.B.S Manian, Advocate for C/R1;
Notice to R2 to R4 is d isp ensed with
vid e ord er d ated 04.12.2019)
This MFA is filed under Order 43 Rule 1(r) of
CPC, against the order d ated 15.07.2019 p assed on
I.A No.2 in O.S.NO.1457/2018 on the file of the XIX
Additional City Civil & Sessions Judge, Beng aluru
(CCH-18), allowing the I.A No.2 filed under Order 39
Rule 1 & 2 read with Section 151 of CPC.
IN MFA N O.6160 OF 2019
BETWEEN:
1. Byreddy Nag arjuna Reddy
S/o B. Sheshi Reddy
Aged about 32 years
R/at House No.30/1
Konapp ana Agrahara
Beng aluru South Taluk
Bang alore-560100.
2. G. Raveend ra Babu
S/o Gajulap alle Venkatasubba Reddy
R/at No.11/40, Mudireddypalli
Mamillap alle Post
Kalasap adu Mand al
Mamilap alle (Rural)
Cuddap ah District
And hra Pradesh-516217.
3. BSR Build ers & Develop ers
A p rop rietorship Concern
By its Prop rietor
:: 8 ::
Mr. B. Subb a Red dy
S/o B. Venkata Subba Reddy
Aged about 46 years
Having office at No.100/37/5
NGR Layout
Roopena Agrahara
Near Silk Board
Behind Mahend ra Showroom
Hosur Road
Beng aluru-560068.
...Appellants
(By Sri Sharath S. Gowd a , Advocate)
AND:
1. Smt. R. Pushp a
W/o K. Lakshman
Aged about 61 years
R/at No.190/17
18 t h Cross, 2 n d Block
Jayanag ar
Beng aluru-560011.
2. T.S. Anilkumar
S/o T. Srinivasa Murthy
Aged about 53 years
No.2, 9 t h Main
BSK 2 n d Stag e
Beng aluru-560070.
3. R. Manjunatha
S/o H.K. Ramegowda
Aged about 50 years
R/at No.1174
Paduvana Road
1 s t Cross, 4 t h Stage
T.K. Layout
Mysore-570022.
4. Dr. D. Srinidhi
S/o V.R. Dwarakanath
:: 9 ::
Aged about 47 years
Present R/at No.1307
Rajeeva Ranjitha
15 t h Cross, 2 n d Phase
Girinag ar
Bang alore-560085.
...Respondents
(By Sri K.B.S Manian, Advocate for C/R1;
Notice to R2 to R4 is d isp ensed with
vid e ord er d ated 04.12.2019)
This MFA is filed under Order 43 Rule 1(r) of
CPC, against the order d ated 15.07.2019 p assed on
I.A No.2 in O.S No.1459/2018 on the file of the XIX
Additional City Civil & Sessions Judge, Beng aluru
(CCH-18), allowing the I.A No.2 filed under Order 39
Rule 1 & 2 read with Section 151 of CPC.
These MFAs pertaining to Beng aluru Bench having
been heard & reserved on 01.04.2022, coming on for
pronouncement this d ay, the Court sitting at
Kalaburagi Bench through vid eo conferencing
pronounced the following:
JUDGMENT
All these four appeals are disposed of by a
common judgment.
2. The XIX Additional City Civil and
Sessions Judge, Bengaluru, by his order dated
:: 10 ::
15.7.2019 on the applications filed under Order
XXXIX Rules 1 and 2 CPC in O.S.1452/2018,
O.S.No.1455/2018, O.S.No.1457/2018 and
O.S.No.1459/2018 granted temporary injunction
in favour of the plaintiffs restraining the
defendants from interfering with suit properties.
in O.S.1452/2018, defendants No.1, 2 and 6 in
O.S.1455/2018, defendants 1 and 5 in
O.S.1457/2018 and defendants No.1, 2 and 6 in
O.S.1459/2018 have preferred these appeals.
3. For the sake of convenience and better
narration of facts, the parties are referred with
respect to rank of each of them in the suits.
4. The plaintiffs claim to be the absolute
owners of certain sites formed in the layout
formed by REMCO (BHEL) Cooperative House
Building Society Limited ('BHEL Society' for
:: 11 ::
short') at Pattanagere Village, Kengeri Hobli,
Bengaluru South Taluk. The description of the
site purchased by each plaintiff in every suit is
given in the schedule to the plaints. If the
plaintiffs in O.S.No.1455/2018,
O.S.No.1457/2018 and O.S.No.1459/2018 are
the original allottees from the society, the
plaintiff in O.S.No.1452/2018 is a purchaser from
the allottee of a site from the society. The
plaintiffs have alleged that though they were in
possession of the sites purchased by them, they
learnt that the defendants 1 to 5 attempted to
encroach upon their sites on the strength of
certain deeds executed by the original owners of
the land in Sy. No. 24/4 of Pattanagere Village,
Kengeri Hobli. The land in Sy.No.24 as also the
lands in other survey numbers were acquired for
the sake of society which formed a layout and
allotted the sites to its members. This being the
:: 12 ::
position, the defendants cannot claim any right
over the property on the strength of certain
dubious deeds said to have been executed by the
original owners. The defendants tried to
trespass over the suit properties in order to
disturb the settled possession of the plaintiffs
and therefore they brought a suit against the
defendants for permanent injunction. The
plaintiffs filed applications for temporary
injunction in their respective suits stating that in
case temporary injunction was not granted
pending disposal of the suits, the defendants
would succeed in trespassing over the property
and the very purpose of filing of the suit would
be defeated.
5. In the statement of objections filed by
defendants, it is stated that none of the plaintiffs
is in possession of the sites involved in the suits
and therefore none of them is entitled to claim
:: 13 ::
an order of temporary injunction pending
disposal of the suits. They have specifically
contended that the Government acquired 58
acres 37 guntas of land comprised in
Sy.Nos.17/1, 17/2, 20/1, 21, 23/1, 24/1, 24/3,
42/4, 48/2, 53/2 and 52/6 of Pattanagere village
for the purpose of providing land to REMCO
(BHEL) House Building Co-operative Society
Limited. The acquisition in favour of BHEL
Society and some other Housing Societies was
challenged by the land owners by filing a writ
petition which was allowed by this court. Then
the Housing Societies approached the Supreme
Court challenging the order in the writ petitions.
The Supreme Court, while dismissing the appeals
directed that the land should be restored to the
respective land owners whether or not they had
challenged the acquisitions, and the land owners
should refund the amounts received by them
:: 14 ::
towards compensation. Accordingly in respect of
the land involved in these suits, one Niranjana
Murthy, the authorized representative of the land
owner viz., Gowramma repaid the compensation
to the Special Land Acquisition Officer in respect
of acquisition of land measuring 1 Acre 28
guntas in Sy.No.24/4 and took back the
possession of the land. To this effect, the Land
Acquisition Officer issued an endorsement on
9.10.2006. It is stated further that the
President of the REMCO Society executed an
indemnity bond in favour of Government and
received an amount of Rs.36,21,794/- deposited
by the Society in connection with acquisition
process. Thus the original owners were put in
possession of the land.
5.1. In so far as the ratification deed and
some other transactions that the plaintiffs refer
to, it is stated that they are all fabricated
:: 15 ::
documents for the purpose of making unlawful
gain and denying title of the original owners.
They are unregistered and insufficiently
stamped. These documents did not convey title
to the Housing Society. In fact the original
owners filed private complaint in the Court of
Magistrate alleging fabrication and forgery of the
documents and the Magistrate referred the
matter to the police for investigation under
section 156(3) of Cr.P.C. The police have filed
charge sheet. This being the position the
plaintiffs cannot make use of these documents
for asserting the possession.
5.2. Another contention taken by the
defendants is that original owner Gowramma sold
an extent of 1 acre 4 guntas in favour of 3 r d
defendant under registered sale deed dated
11.5.2006. He obtained the Katha in his name,
got the land converted from agricultural to non
:: 16 ::
agricultural purpose vide conversion order dated
1.2.2010 and then sold an extent of 23,906
sq.ft. in favour of Dr. Srinidhi under registered
sale deed dated 10.12.2010. Thereafter Dr.
Srinidhi paid the betterment charges and sold
the lands measuring 9892 sq.ft. and 2932 sq.ft.
on 17.12.2012 in favour of T.S Anilkumar who
formed the layout there and sold away the sites.
5.3. The defendants also referred to
O.S.No.386/18 which was filed against the
plaintiffs by the 5 t h defendant. It is stated that
in the said suit, an exparte order of injunction
was granted on 17.1.2018 against the plaintiffs
and that the said order was communicated to
them. Only after receiving the communication,
the plaintiffs filed the present suits suppressing
the order of injunction operating against them.
Therefore the plaintiffs are not at all entitled to
any kind of order of temporary injunction. With
:: 17 ::
these contentions, the defendants pleaded for
dismissing the application.
6. In order to grant temporary injunction
in favour of the plaintiffs, the trial court has
accepted the ratification deed executed by the
land owners in favour of the Society. According
to the trial court, the ratification transaction is
an undisputed transaction. It has also referred
to the orders passed by this Court in the Writ
Petition No.13169/2006, W.P.2045/2007,
W.P.21920/2010 and extracted the observations
made by this Court in those writ petitions,
especially the order in W.P.21920/2010. Then
referring to the documents produced by either
side, but without discussing the effect of those
documents, the trial court has simply arrived at
a conclusion that based on the documents, it can
be stated that the plaintiffs were put in
possession on the basis of the sale deeds and
:: 18 ::
once they were put in possession, they cannot be
evicted without due process of law. Therefore it
is held that prima facie case has been made out.
It is also held that balance of convenience lies in
favour of the plaintiffs and that they would suffer
hardship if temporary injunction is denied.
7. I have heard the arguments of Sri
Sharath S. Gowda, learned counsel for the
appellants and Sri K.B.S.Manian, learned counsel
for the first respondent.
8. All the appeals have been filed under
Order XLIII Rule 1 CPC, the scope of appeal of
this nature is limited in the sense that the
appellate court is required to examine whether
the trial court has properly exercised the
discretionary jurisdiction or not. If discretion is
properly exercised, the appellate court cannot
interfere with the order under challenge; the
:: 19 ::
appellate court shall not interfere with the order
if according to it another view is also possible to
be taken. According to Sri K.B.S.Manian, the
trial court has properly exercised the discretion,
and to lay stress on this point of argument, he
has placed reliance on the judgment of the
Supreme Court in the case of WANDER LTD.
AND ANOTHER VS. ANTOX INDIA P. LTD.
[1990 (SUPP) SCC 727] where it is held;
"14. The appeals before the
Division Bench were against the
exercise of discretion by the Single
Judge. In such appeals, the Appellate
Court will not interfere with the
exercise of discretion of the court of
first instance and substitute its own
discretion except where the discretion
has been shown to have been exercised
arbitrarily, or capriciously or perversely
or where the court had ignored the
settled principles of law regulating
grant or refusal of interlocutory
:: 20 ::
injunctions. An appeal against exercise
of discretion is said to be an appeal on
principle. Appellate Court will not
reassess the material and seek to reach
a conclusion different from the one
reached by the court below if the one
reached by the court was reasonably
possible on the material. The appellate
court would normally not be justified in
interfering with the exercise of
discretion under appeal solely on the
ground that if it had considered the
matter at the trial stage it would have
come to a contrary conclusion. If the
discretion has been exercised by the
Trial Court reasonably and in a judicial
manner the fact that the appellate court
would have taken a different view may
not justify interference with the trial
court's exercise of discretion. After
referring to these principles
Gajendragadkar, J. in Printers (Mysore)
Private Ltd. v. Pothan Joseph (196 0) 3
S CR 713: A IR 1 960 S C 115 6
:: 21 ::
... These principles are well
established, but as has been
observed by Viscount Simon in
Charles Osention & Co. v.
Jhanaton ( 1942 A C 130 ) the law as to
the reversal by a court of appeal
of an order made by a judge below
in the exercise of his discretion is
well established, and any difficulty
that arises is due only to the
application of well settled
principles in an individual case.
The appellate judgment does not
seem to defer to this principle".
9. Here is a case where I find that the trial
court has not reached proper conclusion as to
possession over the properties in question as on
the date of suits. It may have stated that the
documents produced by the plaintiffs disclose
that the plaintiffs were put in possession on the
basis of sale deeds, but such a conclusion, only
:: 22 ::
shows perfunctory approach; there is no
assessment of materials produced by either side
parties; and for this reason, remand jurisdiction
can be invoked, but I forbear from doing so as it
only gives rise to second round of appeals. So it
is better to assess the grounds urged in these
appeals.
10. When the plaintiffs filed the suit, they
sought the relief of permanent injunction only.
Later they amended the plaint claiming the relief
of mandatory injunction directing the defendants
to demolish the construction raised by them in
the suit properties. The plaintiffs have produced
sale deeds, Khata endorsements issued in their
names and the possession certificates issued by
the society. Indeed the sale deed recite that the
plaintiffs were put in possession of the
properties. But their actual possession is
disputed by the defendants. They refer to
:: 23 ::
certain past events relating to acquisition of
lands in favour of society and the annulment of
acquisition by this court in the writ petitions and
confirmation of the said order by the Supreme
Court. These proceedings are not disputed by
the plaintiffs, but what they assert is, after the
Supreme Court confirmed the order of this court
in the writ petitions, the original land owners
entered into private transaction with the society
and executed ratification cum confirmation deeds
and thus all the pieces of lands whose acquisition
was set-aside, continued to remain in the
possession of the society. Consequent to
execution of sale deeds in favour of the members
of the society, they took over possession.
11. Sri Sharath S. Gowda, learned counsel
for the appellants argued that all the
transactions in the nature of ratification cum
confirmation deeds were void, and that no land
:: 24 ::
owner executed such a document. The
documents were created by the management of
the society and no sanctity can be attached to
those transactions. He submitted that the
documents clearly disclose that the original land
owners returned the compensation amount to the
Land Acquisition Officer who in turn delivered
back the possession of the lands to the land
owners. These being undisputed facts, the
plaintiffs cannot claim to be in possession of the
lands based on sale deeds and Khata Certificate.
12. The argument of Sri K.B.S.Manian was,
in spite of acquisition being quashed, the
possession of the land remained with the society.
He submitted that the agreements that the land
owners had executed prior to acquisition of land
remained in force as they had not been
cancelled. The society was put in possession of
the land based on the prior agreements. Then
:: 25 ::
after quashing of acquisition, the land owners
received further consideration and executed
ratification cum confirmation deeds, which
though not registered, can be acted upon for the
collateral purpose of establishing possession.
The ratification cum confirmation deed was a
valid document executed by the land owners. In
this regard he argued that the concerned City
Municipal Council would not have granted khata
in the name of purchasers from the society
unless the transaction of ratification deed was
valid and genuine. He also submitted that in
O.S.17094/2004, the ratification deed was acted
upon and therefore he argued that the
possession of the suit properties was very much
with the plaintiffs on the date of suit. He
referred to some decisions of this court in some
other MFAs, involving similar issues and urged
for applying them.
:: 26 ::
13. But Sri Sharath S Gowda submitted that
this court has already taken a view in MFA
8988/2017 not to grant injunction in the facts
and circumstances akin to the case on hand and
hence the judgment in MFA 8988/2017 is to be
followed.
14. I have already observed that the
plaintiffs have produced sale deeds standing in
their names. All the suits are founded on a
common premise, therefore suffice it to examine
documents produced in one of the suits. In
O.S.1452/2018, the plaintiff is G. Santhiram.
Copy of the sale deed dated 14.10.1992 shows
that REMCO (BHEL) House Building Cooperative
Society Limited sold site No.108 in the layout
said to have been formed by it to J.S. Basavaraj.
Then on 14.09.1995 J.S. Basavaraj sold the said
site to J. Rajendra Prasad. On 26.08.2002,
J.Rajendra Prasad sold the very same site to
:: 27 ::
G.Santhiram, the plaintiff. There are other
documents like, khata endorsement, possession
certificate, encumbrance certificate etc. The
main documents are the sale deeds. It is very
important to note here that the plaintiffs admit
quashing of acquisition in the writ petitions. All
the writ petitions were allowed on 18.06.1991
and the Supreme Court dismissed the appeals
preferred challenging the order in the writ
petitions. While dismissing the appeals, the
Hon'ble Supreme Court directed that the
possession of the lands must be restored to the
land owners and that the land owners must
refund the amounts received by them towards
compensation.
15. Perusal of the documents produced by
the defendants shows that one Niranjana Murthy,
representing the owner of land in Sy.No.24/4 of
Pattanagere returned the compensation amount
:: 28 ::
to the Special Land Acquisition Officer. This
becomes evident from a letter dated 09.10.2006
signed by the Special Land Acquisition Officer.
The indemnity bond dated 23.08.2004 shows that
the society received back a sum of
Rs.36,21,794/- which was deposited by it with
the Land Acquisition Officer. There are two more
letters that have significance in the context of
taking a decision as to possession. The letter
dated 19.01.2004 written in the letter head of
the society and addressed to the Special Land
Acquisition Officer shows that after the Supreme
Court gave its judgment, the Society made every
effort for a period of 8 years to retain the
ownership of the land, and since the Land
Acquisition Officer did not respond to the request
of the society positively, it requested for
refunding the amount deposited with the Land
Acquisition Officer in connection with acquisition.
:: 29 ::
One more letter dated 09.10.20.. (year not
clearly printed) addressed to the Principal
Secretary of the Department of Revenue, Govt.
of Karnataka very clearly indicates possession
and ownership of the lands being restored to the
land owners.
16. Now if the sale deeds on which the
plaintiffs have founded their case are examined
in the light of the documents produced by the
defendants, it can be said that the society
executed the sale deeds without having any kind
of right, title or interest on the lands in question.
So far as possession is concerned, it is doubtful
that the possession was delivered by the society
to its purchasers. When the possession of the
lands was delivered back to the land owners,
unless, it is shown that the land owners again
put the society in possession, it is not possible to
infer that the plaintiffs got the possession of
:: 30 ::
their respective sites based on the sale deeds.
But the plaintiffs refer to confirmation cum
ratification deed to assert possession. An
occasion to examine the validity of this kind of a
transaction arose in MFA No.8988/2017, it was
observed by me that:
12. When the Supreme Court upheld
the judgment of this court quashing
the acquisition proceedings and
directed the government to deliver
back the possession of the acquired
land to the land owners, obviously a
question arises even at the stage of
deciding an application for temporary
injunction, as to what sanctity can be
attached to the transactions that took
place subsequently which appear to
be in utter disobedience of the spirit
of the judgment of the Supreme
Court. Till the government
redelivered the possession of the
acquired land to the land owners,
they should not have entered into
:: 31 ::
transactions like execution of
confirmation and ratification deed in
the year 2000. If they have really
entered into such transactions, they
only show their treacherous and
deceptive acts. The defendant's
counsel has produced a document to
show that Niranjana Murthy returned
the compensation amount as per the
judgment of the Supreme Court on
31.08.2006 and thereafter the special
land acquisition officer delivered the
possession of the acquired land to
him 10.10.2006. Therefore any
transaction that might have taken
place till 10.10.2006 cannot be given
so much importance to hold that by
virtue of the confirmation and
ratification deed dated 23.02.2000
and the compromise in
O.S.No.4601/2000, the plaintiff's got
back possession of the entire
acquired land including the suit
property.
:: 32 ::
17. Therefore, the plaintiffs cannot rely
upon the confirmation and ratification deed. Sri
K.B.S.Manian has relied upon a hoard of
decisions in support of his arguments that even
unregistered documents can be received in
evidence for the collateral purpose of protecting
possession. Section 49 of the Registration Act
permits unregistered documents being
considered for collateral purpose, and therefore
there is no need to refer to all the decisions that
are cited by Sri K.B.S.Manian in this regard.
Moreover, according to the defendants, the very
execution of confirmation cum ratification deed is
disputed, and it appears charge sheet has been
filed by the police for offences of forgery and
fabrication of documents. It may be apt to refer
here the observation made by the coordinate
bench in MFA No.722/2021 in regard to
ratification deed. It is observed that:
:: 33 ::
14. In so far as reliance being
placed on the alleged ratification
deed dated 10.11.2000 by the
plaintiff is concerned, in view of
the fact that the said document is
seriously disputed by the
defendants, coupled with the fact
that the same is an unregistered
document, which does not contain
the signature of the executants on
all the pages, the execution,
genuineness and validity of the
said document would necessarily
have to be decided only after a
full fledged trial and at this stage,
no reliance can be placed upon
the said document by the plaintiff
in support of his claim for
temporary injunction.........".
18. In view of the above observation,
reliability of the confirmation and ratification
deed is doubtful, I am afraid, it helps plaintiffs
to assert possession.
:: 34 ::
19. Then Sri K.B.S.Manian tries to garner
support for his argument from the decision
rendered by me in MFA No.3775/2019 and
connected appeals, (Smt. Shruti S. Kumar
Vs. Srinivasa Murthy and another), MFA
No.8499/2018 (A. Rangaswamy Vs. Shivaraj
and Others) and Review Petition
No.331/2019 (Shivaraj and Another Vs A.
Rangaswamy and Others).
20. It is true that in those MFAs, the parties
were directed to maintain status quo, but those
orders were based on factual position therein.
The case of Shruthi S. Kumar pertains to
acquisition of lands of another village for the
benefit of Gavipuram Extension House Building
Co-operative Society, and it was found that even
after quashing of acquisition proceedings, the
possession remained with the society and the
land owners failed to produce any document
:: 35 ::
indicating redelivery of possession to them.
Review Petition arose out of judgment in MFA
No.8499/2018. Acquisition here was in favour of
REMCO Society, but as the facts therein
disclosed, a suit for possession was filed to
recover a small piece of land measuring 7 x 5
feet, and that status quo was ordered to be
maintained having regard to the act of
interference was still at the threshold. Therefore
the decision was in the light of factual position
found therein.
21. Sri K.B.S.Manian argued that the
plaintiffs' settled possession, though not title,
over their sites is forthcoming and therefore the
impugned order for preservation of suit
properties is to be sustained. He has referred to
some decided cases on this aspect. All those
decisions need not be adverted to here as it is a
settled principle of law that possession needs to
:: 36 ::
be protected from any attempt of illegal
dispossession. As discussed above, the
documents produced by the plaintiffs do not
disclose their possession on the date of suit.
That apart, from the averments made in the
plaint, an inference may be drawn that the
plaintiffs were very much aware that they were
not in possession.
22. In para 19 of the plaint
(O.S.No.1452/2018) it is stated that the
defendants are attempting to trespass into suit
property to disturb the settled possession of the
plaintiffs, that on 3 r d January, 2018 they made
preparations for sinking a bore well for the
purpose of commencing construction and that the
trespass was recent, isolated, incomplete and
transient. Then the plaintiffs made an
application for amending the plaint to plead
further that the first defendant, in order to cover
:: 37 ::
up his act of trespass and encroachment into the
suit property, filed a suit, O.S.No.386/2018 on
12 t h January, 2018. The plaintiff in
O.S.No.1452/2018 also sought additional relief of
mandatory injunction to direct the defendants to
remove all constructions put up on the suit
property.
23. Referring to amendment if Sharath S.
Gowda argued that this very amendment was
enough to draw an inference that the plaintiffs
were not in possession; and because of order of
temporary injunction granted in
O.S.No.386/2018 against the plaintiffs
(defendants in O.S.No.386/2018), the finding of
the trial court in the case on hand that the
plaintiffs were in possession on the date of suit
was wrong. But Sri K.B.S.Manian submitted that
the amendment became necessary in view of
subsequent development, it would not mean that
:: 38 ::
the plaintiffs were not in possession, and that
the plaintiffs just complained of acts of
interference. He submitted that though exparte
temporary injunction was granted in
O.S.No.386/2018, the applications for temporary
injunction filed in the present suits were decided
after hearing both side parties and therefore the
order in O.S.No.386/2018 recedes to
background. It was also his argument that the
order of temporary injunction granted in favour
of plaintiffs herein would operate as res-judicata
if at all a contrary opinion is to be expressed in
view of exparte order granted in
O.S.No.386/2018.
24. As regards this argument, it may be
opined that since O.S.No.386/2018 and the
present suits are in respect of same properties,
certainly as argued by Sri K.B.S.Manian, the
exparte order of temporary injunction granted in
:: 39 ::
O.S.No.386/2018 loses its significance in view of
impugned orders which were passed after
hearing both side parties. But the impugned
orders do not operate as res-judicata, for they
have been questioned in these appeals.
25. So far as the impact of amendment is
concerned, it is difficult to accept the argument
of Sri K.B.S.Manian that amendment is just
supplementary to what is pleaded in para 19 of
the plaint. Going by the plaint averments, if it is
assumed that the first act of interference was on
03.01.2018 and thereby it was in the initial
stage, the present suits having been filed on
22.02.2018, it is highly impossible to believe
that anybody would keep quite for more than a
month seeing invasion on the property rights.
Therefore the possible inference that can be
drawn for the limited purpose at the
interlocutory stage is that probably the plaintiffs
:: 40 ::
could have thought of filing separate suits to
overcome the order in O.S.No.386/2018.
Instead, they could have applied for vacating the
ex-parte order of temporary injunction. In the
plaint in O.S.No.386/2018, it is stated that there
was interference by the plaintiffs herein on
07.01.2018 and by that time bore well had
already been sunk and that the construction
work was in progress. Therefore it may be
stated that the plaintiffs were not in possession
on the date of filing of the suits.
26. Reference is also made to orders passed
in W.P.21920/2010 and connected writ petitions
as also to the orders in the writ appeals filed
against the order in the writ petitions. Sri
Sharath S. Gowda and Sri K.B.S.Manian laid
much emphasis on certain observations made
therein. I do not think the observations have
any relevance here, for the writ petitions have
:: 41 ::
emanated from revenue proceedings in the
matter of acceptance of khata in the name of
allottees from the society. The confirmation cum
ratification deeds and the compromise decree in
a suit emerged for discussion. It was held that
the parties should avail such remedies as were
available to them to establish their right, title or
interest. Therefore I do not think that the
plaintiffs can make any attempt to establish their
possession based on khatas or the order in Writ
Petitions and Writ Appeals.
27. The plaintiffs also refer to a judgment in
O.S.No.3321/2011 which was filed by the
plaintiff in O.S.No.1452/2018 against
R.Manjunath, the third defendant. But it is
contended by the defendants 1 and 5 that by the
time suit was filed in the year 2011, the third
defendant had already sold the land to an extent
of 23906 sq. ft. in favour of Dr. Srinidhi, the
:: 42 ::
fourth defendant on 10.12.2010. If this is true,
hardly the judgment in O.S.No.3321/2011 has
any effect on other defendants who were not
parties in O.S.No.3321/2011.
28. Therefore with this discussion, it may be
concluded that possession of the plaintiffs over
the suit properties as on the date of filing of
suits was not made out. The plaintiffs have thus
failed to show existence of prima facie case in
their favour. As prima facie case is not made
out, there is no need to discuss the two other
requirements, i.e., balance of convenience and
comparative hardship.
29. Sri Sharath S. Gowda kept on submitting
that the defendants will not claim equity in case
the plaintiffs succeed in their suits. The
defendants have undertaken construction work
being in possession. Merely because the
:: 43 ::
plaintiffs have sought mandatory injunction, they
do not get right to stop construction. In light
of the premise of the suits, even to obtain a
decree for mandatory injunction, they must
establish their right over the property. In this
view, I am of the opinion that all the appeals
deserve to be allowed and hence the following
order.
ORDER
All the appeals are allowed.
The order dated 15.07.2019 in
O.S.No.1452/2018, O.S.No.1455/2018,
O.S.No.1457/2018 and O.S.
No.1459/2018 on I.A.No.2 (in all the
suits) filed under Order 39 Rules 1 and
2 CPC is set aside. The applications are
dismissed and the temporary injunction
:: 44 ::
granted in favour of the plaintiffs in all
the suits is vacated.
Parties to bear the costs.
Sd/-
JUDGE
Kmv/-
