Karnataka High Court
Sri. Pradeep Kumar N vs Sri Vijay Kumar V on 17 October, 2022
Bench: Ravi V Hosmani
-1-
MFA No. 4383 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISC. FIRST APPEAL NO.4383 OF 2022 (CPC)
BETWEEN:
SRI. PRADEEP KUMAR N.,
S/O LATE NAGARAJ,
AGED ABOUT 35 YEARS,
R/AT NO.7, SY.NO.242/3,
HALAGEVADERAHALLI, BEML 5TH STAGE,
BEHIND SILICON INDRAPRASTHA APARTMENT,
RAJARAJESHWARINAGARA,
BENGALURU - 560 098.
...APPELLANT
[BY SRI. R.S. RAVI, SENIOR COUNSEL FOR
SRI. B. ROOPESHA, ADVOCATE (PH)]
AND:
SRI. VIJAY KUMAR V.,
S/O VEERE GOWDA,
AGED ABOUT 46 YEARS,
R/AT NO.410, 80 FEET ROAD,
GIRINAGARA 2ND PHASE,
BENGALURU - 560 085.
Digitally signed by
GURURAJ D
Location: High
...RESPONDENT
Court of Karnataka [BY SRI. K. NAGENDRA KUMAR, ADVOCATE (PH)]
THIS MFA FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC,
AGAINST THE ORDER DATED 06.06.2002 PASSED ON I.A.NO.1 IN
O.S.NO.3275/2022 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CCH.NO.3, ALLOWING THE
I.A.NO.1 FILED U/O 39 RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-2-
MFA No. 4383 of 2022
JUDGMENT
Challenging order dated 06.06.2022 passed by XV
Additional City Civil and Sessions Judge at Bengaluru (CCH-3)
(for short 'trial Court') in O.S.no.3275/2022 on I.A.no.1 filed
under Order XXXIX Rule 1 and 2 of CPC, this appeal is filed.
2. Appellant herein was defendant, while respondent
herein was plaintiff. For sake of convenience, they shall
hereinafter be referred to by their rank in original suit.
3. O.S.no.3275/2022 was filed seeking for perpetual
injunction restraining defendant from interfering with suit
schedule 'C' property and to restrain him from putting up any
construction over suit schedule 'C' property.
4. In plaint, it was stated that plaintiff purchased
house site no.483 measuring East-West 40ft. and North-South
55+50/2 ft. in V Phase of Vishwabharathi Housing Complex
Layout within Rajarajeshwarinagar CMC, from one
Smt. Dr. K.P.Jyoti under registered Sale Deed dated
09.06.2004. Thereafter Khata was mutated in his name. Out of
above, plaintiff sold portion measuring East-West 40 ft,. and
North to South 30ft. i.e., 1200 sq.ft., in favour of one
MFA No. 4383 of 2022
Sri. S. Venkatachalam S/o Subbarayappa under registered Sale
Deed dated 04.11.2004 and plaintiff continued in possession of
remaining extent measuring East-West 40 ft. and North-South
25ft., which was suit schedule 'C' property. It was also stated
that after inclusion in limits of Bruhat Bengaluru Mahanagara
Palike (for short 'BBMP'), application was filed for Khata in
name of plaintiff and he was paying property tax in respect of
suit schedule 'C' property to BBMP.
5. It was also stated that defendant was not having
any right, title or interest over suit schedule 'C' property, but
started to interfere with plaintiff's possession by conducting
Bhoomi Pooja on 08.05.2022, leading to filing of police
complaint. But when defendant did not stop, hence, plaintiff
filed suit.
6. In suit, plaintiff had also filed I.A.no.1 for
temporary injunction under Order XXXIX Rule 1 and 2 of CPC,
restraining defendant from interfering with plaintiff's possession
over suit schedule 'C' property during pendency of suit.
7. In said suit, defendant entered appearance and
filed written statement stating that originally one
MFA No. 4383 of 2022
Sri. S.Amruthalingam and Sri. S.Chandrashekar sons of late
Sri. Srinivasaraya were owners of Sy.no.242/2 measuring to an
extent of 04 acres situated at Halagevaderahalli, Kengeri Hobli,
Bengaluru and they sold 04 acres in favour of Muniyappa
S/o Chikkarasaiah under registered Sale Deed dated
24.09.1958.
8. Defendant claims that site no.9 bearing Khata
no.1199 formed out of said land was standing in name of
Sri. S.Umashankar and defendant purchased it under registered
Sale Deed dated 28.10.2020 and from date of purchase he was
paying property tax to BBMP in respect of same. Defendant
further stated that thereafter he had obtained building licence,
sanction plan from competent Authority and commenced
construction of house. Therefore, he had title in respect of suit
schedule 'C' property and plaintiff was not entitled for any
relief. Defendant also contended that plaintiff's vender did not
have any right or title over suit schedule 'C' property and
therefore plaintiff could not claim any right over suit schedule
'C' property.
MFA No. 4383 of 2022
9. In affidavit filed in support of I.A.no.1, plaintiff
reiterated plaint averments and stated if temporary injunction
is not granted defendant would continue with construction and
same would lead to irreparable loss and injury.
10. While plaintiff reiterated plaint averments in
application and defendant reiterated written statement
averments in objection.
11. On consideration, trial Court framed following
points for its consideration:
i. Whether the plaintiff made out a prima
facie possession over the suit schedule
property as on the date of the suit?
ii. Whether the plaintiff made out a ground
that defendant causing interference to the
peaceful possession and enjoyment of the
suit property by the plaintiff?
iii. Whether the plaintiff will be put to
hardship if injunction is not granted?
iv. What order?
12. Thereafter, it answered points no.1 and 2 in
affirmative, point no.3 in favour of plaintiff and point no.4 by
allowing application and granting injunction restraining
MFA No. 4383 of 2022
defendant from interfering with peaceful possession of plaintiff
over suit schedule 'C' property till disposal of suit.
13. Challenging same, defendant is in appeal.
14. Sri. R.S.Ravi, learned Senior Counsel appearing for
Sri. B.Roopesha and Sri. M.K.Sandeep, counsel for appellant
submitted that on one hand, plaintiff claims to have acquired
title from his vendor Smt. Dr. K.P. Jyoti, who purchased site
no.483 of Vishwabharathi Housing Complex layout formed by
Vishwabharathi House Building Co-operative Society Limited
(for short 'Society') under registered sale deed dated
25.07.1997. As per said Sale Deed, it was carved out of
Sy.no.242/2 of Halagevaderahalli, which was proposed for
acquisition in favour of Society under Preliminary Notification,
gazetted on 18th October, 1988.
15. Learned Senior counsel further submitted that
though preliminary notification was issued, Final Notification
was not issued even after lapse of statutory period. Therefore,
Society filed W.P.no.18584/1989 seeking direction for
completion of acquisition proceedings. However, said writ
petition was dismissed on 27.08.1996. Aggrieved thereby,
MFA No. 4383 of 2022
Society filed W.A.no.8766/1996, which was dismissed on
04.12.1996. After dismissal of writ petition and appeal, Society
withdrew amount deposited by it towards acquisition by
executing indemnity bond on 18.07.1998. Therefore without
acquisition, Society could not have formed layout and sold
sites. Even if it did, same would be null and void and would not
convey any valid title. Without proper explanation about
acquisition of valid title, plaintiff's suit would not be tenable and
application for temporary injunction ought not to have been
considered.
16. Learned Senior counsel submitted that on other
hand, title of defendant in respect of suit property was well
explained. As averred in written statement, originally
Sri. S.Amruthalingam and his family members were owners of
Sy.no.242/2 totally measuring 04 acres of Halagevaderahalli.
They sold same in favour of Sri. Muniyappa S/o Chikkarasaiah
under registered sale deed dated 24.09.1958. Subsequently,
under partition deed dated 18.03.1981, between family
members of Sri. Muniyappa, extent of 01 acre 17 guntas of said
property fell to share of Sri. Munivenkatappa S/o Muniyappa.
Said Sri. Munivenkatappa sold entire extent in favour of
MFA No. 4383 of 2022
Sri. M. Umashankar under registered Sale Deed dated
31.05.2006. Said Sri. M. Umashankar got converted said land
for non-agricultural purposes under order of Deputy
Commissioner dated 02.03.2009, formed layouts and sold site
no.9 in said layout, bearing khata no.1199 measuring East to
West 40 ft. and North to South 23.6 ft. on eastern side and 20
ft. on western side under registered sale deed dated
28.10.2020, in favour of defendant. Khata was also transferred
in his name. Thereafter, on 30th April 2022, BBMP issued
building licence to defendant. In pursuance of same, when
defendant commenced construction by borrowing loan from
Bank, plaintiff had filed suit and obtained temporary injunction.
It was submitted that order of temporary injunction was
subjecting defendant to grave and irreparable hardship as
building materials stocked would be open for damage even
while defendant would be liable for loan borrowed. It was
therefore submitted that impugned order passed by trial Court
was opposed to settled principles of law governing injunctions.
17. Learned Senior counsel further submitted fact that
defendant's vendor Sri. M. Umashankar had succeeded in
securing cancellation of sale deed dated 23.06.2000 executed
MFA No. 4383 of 2022
by Society in respect of site no.565 to Sri Kavaru Bush by filing
O.S.no.6995/2011 before City Civil and Sessions Judge,
Bengaluru, would further corroborate version of defendant.
Attention was also drawn to paper publication inviting
objections issued by Society in 2012 informing allottees that
though Society had not acquired any right or title in respect of
Sy.no.242/2 and other survey numbers, it had illegally
executed sale deeds. Thereafter, some of allottees had filed
suits against Society before City Civil Court, Bengaluru and
applications for temporary injunction, came to be rejected.
Even appeals filed before this Court were dismissed in
MFA.no.1473/2021 and MFA.no.1476/2021 disposed of on
08.09.2021 and MFA.no.7579/2012 and connected matters
disposed of on 25.09.2012.
18. It was submitted that these facts would establish
that Society which had sought acquisition of several lands
including Sy.no.242/2, could not acquire title over same by way
of acquisition. Therefore, Society had no right, title or interest
in respect of land bearing Sy.no.242/2 for forming layout and
for alienating sites. And since plaintiff's vendor was claiming
title from Society, plaintiff's title in respect of suit schedule 'C'
- 10 -
MFA No. 4383 of 2022
property would be defective and void. Under such
circumstances, when suit itself would not be maintainable, trial
Court erred in granting injunction.
19. In reply, learned Senior counsel submitted that
boundary description of property of site no.9 purchased by
defendant matched with boundary description of suit schedule
'C' property and there was no justification in objections of
plaintiff.
20. On other hand, Sri. K.Nagendra Kumar, learned
counsel appearing for plaintiff-respondent submitted that
plaintiff's vendor - Smt. Dr.K.P.Jyoti was allotted site no.483
by Society and sale deed was executed in her favour on
25.07.1997. Subsequently, said Smt. Dr.K.P.Jyoti sold it to
plaintiff under registered Sale Deed dated 09.06.2004.
Thereafter, as plaintiff was in financial crisis, he sold portion of
site no.483 in favour of Sri. S.Venkatachalam under registered
Sale Deed dated 04.11.2004 and retained remaining extent. He
further submitted that plaintiff had already got Khata mutated
to his name in respect of site no.483 and after sale of portion,
applied for change of khata in respect of extent retained by
him. He further submitted that plaintiff had also issued legal
- 11 -
MFA No. 4383 of 2022
notice dated 23.11.2020 to defendant refraining from
interfering with plaintiff's possession. Without replying said
notice, on 08.05.2022, defendant conducted Bhoomi Pooja to
begin construction on suit schedule 'C' property. On coming to
know of same, plaintiff lodged police complaint before
jurisdictional police on 09.05.2022. But, he was issued with
endorsement to approach Civil Court. In pursuance of same,
plaintiff had filed suit.
21. Learned counsel submitted that though land
acquisition proceedings were not completed, same were in
respect of large extent of 65 acres and it was a fact that layout
was formed by Society long back and plaintiff's vendor was put
in possession of suit schedule 'C' property from date of sale
deed dated 25.07.1997. Thereafter, plaintiff came in possession
of said property from date of Sale Deed dated 09.06.2004.
Even khata in respect of site no.483 was mutated in his name.
These facts prima facie established plaintiff's title and
possession. He submitted that question of valid title would be
matter of trial.
22. He further submitted that title deed of defendant's
vendor was of year 2006, whereas that of plaintiff's vendor was
- 12 -
MFA No. 4383 of 2022
of 1997 i.e., much earlier. Since neither defendant nor
defendant's vendor had sought any steps against Sale Deed in
favour of plaintiff or plaintiff's vendor and even with regard to
portion of site no.483 sold by plaintiff in favour of
Sri. S.Venkatachalam, who had also constructed building and
residing thereon, there was no merit in any contentions of
defendant. It was contended that formation of layout and
layout plan by Society were unchallenged. In absence of
challenge and same being set aside, plaintiff's case would stand
prima facie established.
23. Considering said aspects, trial Court had rightly
granted injunction while passing impugned judgment. Trial
Court had applied it's mind to rival claims and arrived at a
conclusion that plaintiff's possession was required to be
protected pending trial. Hence no interference was called for in
impugned order.
24. Learned counsel further sought to fortify his
submission by contending that extent and boundaries of land
claimed by defendant differ from that of plaintiff. While plaintiff
claimed title and possession of 900 sq.ft i.e. remaining portion
of site no.483; whereas, defendant was claiming title and
- 13 -
MFA No. 4383 of 2022
possession in respect of site no.9 measuring 870 sq.ft. and
therefore suit property was entirely different from that of
property claimed by defendant.
25. Heard learned counsel. Perused impugned order
and record.
26. Upon rival contentions, only point that arises for
consideration is :
"Whether impugned order granting
temporary injunction passed by trial
court calls for interference?"
27. From above submission, it is evident that there are
rival claims in respect of suit schedule 'C' property. While
passing impugned order, trial Court on consideration, observed
that whether property purchased by defendant was same as
that of plaintiff, required to be considered only after trial. It
observed that after purchase of site no.483, plaintiff had sold a
portion of it to another person, who had already constructed
building and residing there. Dispute was only in respect of
remaining portion which was vacant and retained by plaintiff.
Considering that there was possibility of respective sites being
entirely different. Even whether layout formed by Society was
illegal would also require trial. Considering plaintiff's possession
- 14 -
MFA No. 4383 of 2022
over suit property, it held prima facie case to be established by
plaintiff and possibility of irreparable loss and hardship to be
caused if injunction were not granted, proceeded to grant
temporary injunction.
28. Scope of appeal under Order XLIII Rule 1(r) of CPC
against an order passed on application filed under Order XXXIX
Rule 1 and 2 of CPC are well defined. Hon'ble Supreme Court in
the case of Mohd. Mehtab Khan & Ors. Vs. Khushnuma
Ibrahim Khan & Ors.,1 after referring to observations in
Wander Ltd., Vs. Antox India (P) Ltd.,2, held that
interference with discretionary order passed by trial Court
would not be permissible unless exercise of discretion by trial
Court is palpably incorrect or untenable and if view taken by
trial Court was a possible view, same would not be liable for
interference.
29. On perusal of impugned order, it appears that
challenge to title/authority of Society to form layout due to land
acquisition proceedings initiated at it's instance being
abandoned do not appears to have been urged before trial
(2013) 9 SCC 221
1990 Supp. SCC 727
- 15 -
MFA No. 4383 of 2022
Court or pleaded in written statement/objections to application.
Therefore submissions of learned Senior Counsel though
noteworthy, cannot be considered at this stage. Even
submission of learned counsel for plaintiff that in respect of
land bearing Sy.no.212 and 213, they are in possession and
not Sy.no.242/2, which appears to be justified.
30. As noted above, there are rival claims in respect of
suit property in instant case, both seemingly possible to be
established. Considering fact that sites claimed by parties bore
different khata numbers, trial Court opined that it was possible
that they were in respect of two different properties. It's
observation that there was no explanation or challenge by
defendant or his vendor about other portion of plot no.483 sold
by plaintiff to Sri. S. Venkatachalam, who had put up
construction on it and occupied it, though it would have
suffered from similar defect in title as alleged by defendant, as
one of basis for leaning in favour of plaintiff. Since plaintiff was
staking claim on basis of registered sale deed and established
possession by relying on khata, it cannot be held that view
taken by trial Court was not among the possible views.
- 16 -
MFA No. 4383 of 2022
31. Hon'ble Supreme Court in Anathula Sudhakar Vs.
P. Buchi Reddy (dead by LRs. & another)3 has held that
mere denial of plaintiff's title over suit property by defendant
would not require plaintiff to seek for declaration of title. In
instant case, trial Court has observed that it was possible that
land/site over which plaintiff and defendant were claiming right
to be different from each other to be subject matter of trial.
Therefore, bare suit for injunction cannot be said to be not
maintainable at this stage. Hence, answering point for
consideration in negative, appeal is liable to be dismissed as
devoid of merits.
32. Accordingly, appeal is dismissed.
34. However trial Court is directed to proceed with trial
without being influenced by any observations made herein
above in an expeditious manner.
Sd/-
JUDGE
(2008) 4 SCC 594.
GRD/-
