G C Sumathi Kumar vs Kiran M
2023 Latest Caselaw 5737 Kant

                               1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 18TH DAY OF AUGUST, 2023

                          BEFORE

          THE HON'BLE MR. JUSTICE K. NATARAJAN

          REGULAR FIRST APPEAL NO.1493 OF 2023

BETWEEN:

1 . G C SUMATHI KUMAR
    AGED 60 YEARS,
    S/O G.B. CHANDRAKEERTHI,

2 . M.N. VANITHA
    AGED 48 YEARS,
    W/O G.C. SUMATHI KUMAR

3 . M.N. JAYAPADMA
    AGED 54 YEARS,
    W/O AJITHKUMAR BALLAL

     ALL ARE R/AT NO.50,
     10TH A CROSS, 1ST MAIN,
     PRASHANTHANAGAR,
     BENGALURU - 560 079.
                                          ... APPELLANTS
(BY SRI MANIAN K.B.S., ADVOCATE)

AND:

1.    KIRAN M.
      AGED ABOUT 33 YEARS,
      S/O LATE MADHU M
                             2



2.   MEGHANA U.K.
     AGED ABOUT 27 YEARS,
     W/O KIRAN M

     BOTH ARE RESIDENTS OF NO.2,
     1ST MAIN, A.G. RANGASWAMAPPA ROAD,
     SRIRANGA NAGAR,
     NEAR VEERABHADRA NAGAR,
     BENGALURU - 560 085.

3.   MIRLE VARADARAJ
     AGED 61 YEARS
     S/O LATE BOREGOWDA
     RESIDENT OF NO.544,
     5TH MAIN, K.S.TOWN,
     BENGALURU - 560 060.
                                          ... RESPONDENTS
(BY SRI SHARATH S. GOWDA, ADVOCATE)

     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE ORDER
DATED 20.06.2023 PASSED ON IA NO.1 IN OS NO.3377/2023 ON
THE FILE OF VI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
AT BENGALURU CITY., REJECTING THE I.A. NO.1 FILED UNDER
ORDER XXXIX RULES 1 AND 2 OF CPC., FOR TEMPORARY
INJUNCTION AND ALLOWING IA NO.2 FILED UNDER ORDER 7
RULE 11(a) AND (b) FOR REJECTION OF PLAINT.


     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 2.8.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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                       JUDGMENT

This appeal is filed by the appellants-plaintiffs under Order

XLI Rule 1 read with Section 96 of the Code of Civil Procedure,

1908 (for short 'CPC') for setting aside the judgment and decree

passed by the VI Additional City Civil and Sessions Judge,

Bengaluru in O.S.No.3377/2023 dated 20.06.2023 for having

rejected the plaint under Order VII Rule 11(a) and (d) of CPC.

2. Heard the arguments of learned counsel for the

appellants and learned counsel for the respondents.

3. The rank of the parties before the Trial Court is

retained for the sake of convenience.

4. The case of the plaintiff before the Trial Court is that

the plaintiff filed a suit for declaring the sale deed dated

24.03.2022 registered before the Senior Sub-Registrar, Jayanagar

(Kengeri), Bengaluru executed by Mirle Varadaraj in favour of the

defendants is null and void. A mandatory injunction directing the

Senior Sub-Registrar, Jayanagar (Kengeri), Bengaluru to cancel

the said sale deed from the registration records and permanent

injunction restraining the defendants from interfering with the

plaintiffs' peaceful possession and enjoyment of the suit schedule

property. A residential site bearing No.555 situated at

Pattanagere, Kengeri Hobli, Bengaluru formed from a private

Layout i.e., REMCO (BHEL) House Building Co-operative Society

Limited measuring East to West 35+34/2 = 34.5 feet and North to

South 50 feet and another site bearing No.539 situated in the

same Layout having similar measurement of the site No.555

(hereinafter referred to as 'suit schedule properties').

5. The plaintiff has contended in the plaint that the

Residential Layout formed by the said Society as early as 1990

with all infrastructures including the overhead water storage

tanks, civic amenities and several employees/allottees had

constructed the houses and some of the allottees have not yet

constructed the residential houses. The said Society formed the

Layout by investing several crores of rupees collected from the

allottees and named as BHEL Layout. The acquisition of land by

the Society under the agreements from the land owners of

Pattanagere Village and paid the amount and possession was

taken. The transactions were made in the year 1984-85. In

contemplation of the acquisition of lands by the Government for

the benefit of the Society, the Notification was published in the

year 1987 and the BDA has approved in the year 1988 and

Society was formed Layout as early as 1990. Some of the land

owners were challenged the acquisition proceedings and the High

Court has quashed the acquisition in the year 1991 and later, in

the writ appeal, the same was confirmed in the year 1995 and by

that time, there were several allottees constructed the houses and

residing in the Layout. The plaintiff to ensure the cloud over the

title of the Society considered the verdict of the Hon'ble Supreme

Court quashing the Notification of declaration and ratification deed

which was executed in the year 2000 and the land owners

confirmed the agreement with the Society for transfer of lands. It

is further alleged that not withstanding the setting aside the

acquisition, a private arrangements were made between the

Society and the landowners in Sy.No.17/1 as per the rectification

deed 14.12.2000 over which the defendant claims the right. It is

further alleged that by taking advantage of the judgment of the

Hon'ble Supreme Court, the third defendant who is a local land

grabber claiming that the lands were still agricultural land and

started illegal occupying the sites which lead to the plaintiff and

other site allottees filed suit for protecting their sites from

encroachment.

6. The plaintiff further alleged that in the year 2010-12,

respondent No.3 with political influence got cancelled the Khata

which stood in the name of allotees. The same was challenged

before the High Court in Writ Petition No.21920/2010, the High

Court restored the khata in the name of allotees. The appeal also

came to be dismissed on 16.03.2021 in Writ Appeal

No.1960/2013. The respondent has created the bogus document

by suppressing the real number by giving an imaginary site

numbers and sold the properties by sale deed dated 24.02.2022

on the false representation and on the strength of the bogus sale

deed, the first and second respondent obtained illegal khata and

started to put up construction in the sites belongs to the plaintiff.

The defendant also demolished the compound wall to commence

the constructing activities, hence, suit came to be filed seeking

the declaration and injunction.

7. The defendant appeared and filed written statement

and I.A. under Order VII Rule 11 of CPC for rejection of plaint

contending that the relief of the plaintiff without declaring the

title, the suit is not maintainable and so far as second prayer is

concerned, the Sub-Registrar was not arrayed as party and third

relief regarding seeking permanent injunction, the plaintiff is not

in the possession of suit schedule property, therefore, the relief

sought by the plaintiff is not available in law and therefore, prayed

for rejecting the plaint on the ground that the cause of action not

arose of suit and suit is barred by law and the court fee paid is not

sufficient and without seeking prayer for declaration of his right,

the question of declaring the sale deed of the defendants is null

and void. Hence, prayed for rejection of the plaint.

8. The Trial Court after hearing the arguments, while

considering the I.A. under Order VII Rule 11 of CPC also

considered the I.A. of the plaintiff under Order XXXIX Rules 1 and

2 of C.P.C. and passed the common order by dismissing the

prayer of temporary injunction and allowed the application filed by

the defendant under Order VII Rule 11 of CPC and rejected the

plaint which is under challenge.

9. The learned counsel for the appellant has contended

that the order of the Trial Court rejecting the suit on the ground of

cause of action is not correct and also contended that the Trial

Court committed error in holding the plaint is barred by law. It is

not forthcoming, how the same is barred by law. The judgment of

the Hon'ble Supreme Court does not prohibit the Society to enter

into private transactions with the land owners. In the writ

petitions and appeal, it was also held that the parties can file the

suit in the Civil Court for ascertaining their rights. The Trial Court

ignored the plaint averments and considered the written

statement filed by the defendant which is not correct. The cause

of action is required to be tried and proved which is a bundle of

facts and without going to the trial, the suit cannot be rejected.

There is no law prohibits for filing the suit and it is not barred by

any law. The restoration of the khata in the name of the allotees

by the High Court which was upheld by the Division Bench of this

Court in the Writ Appeal. This aspect required to be considered by

the Trial Court only during the trial by adducing the evidence.

Even otherwise, the plaintiff is entitled to maintain for bare

injunction without seeking any declaration. Therefore, the Trial

Court ought not to have rejected the plaint. Hence, prayed for

allowing the appeal. In support of his contention, he has relied

upon some judgments of the Hon'ble Supreme Court.

10. Per contra, the learned counsel for the respondent has

supported the order passed by the Trial Court for rejecting the

plaint and contended that the defendant urged four grounds in the

application that cause of action has not arose for filing the suit.

The suit for injunction is not maintainable without seeking

declaration and possession and the plaintiff cannot seek

declaration for canceling the sale deed of the respondent without

seeking declaration of his right over the property. The Hon'ble

Supreme Court has already upheld the judgment of the High Court

for canceling the acquisition proceedings in the year 1995 itself

and subsequently, a Layout was formed which was purchased by

respondent Nos.1 and 2. There is a cloud over the title of the

plaintiff, therefore, without seeking declaration of title and

possession, a suit is not maintainable. The plaintiff could have file

the suit within three years from 1995, thereby, suit is barred by

the limitation and further contended that the court fee paid by the

plaintiff is not sufficient and also contended that though the Trial

Court not mentioned the Sub Rule 11 of the Order VII, but the

respondent can argue in support of the order passed by the Trial

Court and contention taken by him in the application and hence,

prayed for dismissing the appeal.

11. Having heard the arguments and on perusal of

records, the points that arise for my consideration are:

"1) Whether there is no cause of action arose for filing the suit by the plaintiff as per Order VII Rule 11(a) of CPC ?

      2)    Whether the suit is barred by law as per Order
            VII Rule 11(d) of CPC ?


      3)    Whether the court fee paid by the plaintiff is
            sufficient?


      4)    Whether the order passed by the Trial Court

rejecting the plaint, call for interference by this Court ?"

12. In respect of point No.1, the learned counsel for the

appellant has contended that the cause of action is bundle of fact

and without going to the trial, it cannot be decided at this stage

and the plaint cannot be rejected on that ground and further

contended that the plaint cannot be rejected based upon the

written statement. The averments in the plaint alone should be

considered. As per the contention of the plaintiff that the suit

schedule property has been purchased from REMCO (BHEL)

Housing Co-operative Society and he was an allottee. The land

was acquired by the State on behalf of the BHEL Society and

subsequently, the owners have challenged the acquisition

proceedings which was allowed by the High Court and quashed

the Notification and the same was upheld by the Hon'ble Supreme

Court. The further contention of the plaintiff is that subsequently

there was an agreement between the BHEL Society and the land

owners. A confirmation deed has been executed in favour of the

plaintiff and it is contended by the learned counsel that there is no

bar for entering any agreement between the original owners

subsequent to the judgment of the Hon'ble Supreme Court which

was delivered in the year 1995. The BBMP also set aside the

Khata stands in the name of the plaintiff and later he has

challenged the same by filing the writ petition where the

respondent was also one of the party and the High Court restored

the Khata in the name of the plaintiff which was upheld by the

Division Bench. It is categorically held by the Division Bench that

the parties can avail the relief before the Civil Court and the

Coordinate bench of this Court has held that the property has

been developed, roads were formed etc., and these facts are

required to be proved only by the trial and the plaint cannot be

rejected. In my considered view, this factum of obtaining the sale

deed subsequently the rectification deed entered into between the

parties, the khata restored in the name of the parties which was

upheld by the Division Bench in the Writ Appeal and subsequently

the respondent has said to be entered into a sale deed in the year

2022, therefore, the cause of action arose for the plaintiff to file

the suit. Therefore, it cannot be said that there is no cause of

action arose for filing the suit and the plaintiff required to prove

the same by trial. Therefore, the Trial Court committed error in

holding that no cause of action arose for filing the suit cannot be

acceptable.

13. However, the plaintiff filed the suit for relief of

declaration and injunction against the defendant, though filed the

declaration suit it is only for declaring the sale deed of the

respondent is void and not binding on the plaintiff which is not

correct when the defendant claims the right by fling the sale deed

and started putting up construction. Such being the case, it is

necessary for the plaintiff to file suit for declaration to declare his

ownership / title over the schedule property and the suit is filed by

the plaintiff only to declare the sale deed of the defendant which is

null and void and injunction is not maintainable.

14. As regards to the suit barred by limitation, the

respondent counsel has submitted that the judgment was

delivered by the Hon'ble Supreme Court in the year 1995 by

confirming the quashing of Notification, thereby, suit was barred

by law. In this regard, the Hon'ble Supreme Court in the case

Shakti Bhog Food Industries Limited vs. Central Bank of

India and Another reported in (2020) 17 SCC 260 has held

that the factum of suit being barred by limitation would be mixed

question of facts and law. Therefore, the Court cannot reject the

plaint on the ground of limitation since that suit was barred by

law. Here in this case, the Trial Court not stated that on which

provision of law the suit was barred by limitation, but blindly

stated that the suit was barred by limitation without mentioning

the specific provisions of Limitation Act. Therefore, the plaint

cannot be rejected as barred by law.

15. However, the learned counsel for the respondent has

contended that the defendant already put up the construction in

the suit schedule property and it was admitted by the plaintiff that

a sale deed was in the name of the respondent. Such being the

case, it is necessary for the plaintiff to file suit for declaration of

title and seeking possession and even the appellant can file a

comprehensive suit. The learned counsel for the respondent has

relied upon the judgment of the Hon'ble Supreme Court in the

case of Anathula Sudhakar vs. P. Bhuchi Reddy (Dead) by

LRs and Others reported in AIR 2008 SC 2033 has held at

paragraph No.11 as under:

"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

11.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

11.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to

establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

16. As per the judgment of the Hon'ble Supreme Court at

paragraph No.11.3, squarely applicable to this case where there is

cloud over the title of the plaintiff. Such being the case, he has to

file suit for declaration, consequently injunction and suit for

injunction simpliciter will not lie. Learned counsel for the

respondent also contended that the plaint was rejected and the

plaintiff does not precluded from presentation of fresh plaint as

per Order VII Rule 13 of CPC.

17. Here in this case, the plaintiff required to perfect his

title by filing the suit for declaration and consequential injunction

and the defendant said to be trying to construct the building after

rejection of the plaint. It is also well settled instead of filing the

fresh suit, even the plaintiff can maintain the old suit by making

necessary amendment by filing the application under Order VI

Rule 17 of CPC in order to avoid the multiplicity of litigations.

Therefore, in my view, the Trial Court ought not to have rejected

the plaint either under Sub Rules 11(a) or 11(d) of CPC. If at all

the plaintiff required to pay the court fee, the Trial Court can

provide time for making necessary court fee as per the Proviso to

Order VII Rule 11 of CPC. But on perusal of the impugned order

passed by the Trial Court, the Trial Court neither mentioned the

correct provisions of law while rejecting the plaint and the

respondent also not filed by making proper provision in the

Interlocutory Application under Order VII Rule 11 of CPC. It was

blindly mentioned the main Order VII Rule 11 of CPC without

mentioning the Sub Rules (a) to (f). Therefore, I am of the view,

by looking to the facts and circumstances of the case, the order

under challenge required to be set aside and the matter is

required to be remitted back to the Trial Court and allowing the

plaintiff to make necessary amendment to the plaint for seeking

declaration and consequential relief of injunction.

18. It is submitted by the learned counsel for the

appellant that the appellant was enjoyed the status quo during the

trial stage till rejecting the plaint and the photograph produced by

the appellant reveals the defendant trying to put up the

construction on the suit schedule property, therefore, it is

necessary for issuing direction to both parties to maintain the

status quo over the suit schedule property until any further orders

passed by the Trial Court after remanding the matter and taking

fresh consideration.

19. Accordingly, the appeal is allowed. The impugned

order of rejection of plaint is hereby set aside.

The suit is restored to the original file. The plaintiff is

directed to file application under Order VI Rule 17 of CPC seeking

amendment to the plaint and to pay the necessary Court fee.

The Trial Court can decide the matter afresh in respect of

granting temporary injunction and till disposal of the suit, the

status quo should continue.

Sd/-

JUDGE

GBB