Karnataka High Court
Munendrappa B N vs Sri Mariyappa on 16 June, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:20805
MFA No. 448 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 448 OF 2021 (CPC)
BETWEEN:
1. MUNENDRAPPA B.N.,
S/O NARAYANASWAMY
AGED ABOUT 38 YEARS
RESIDING AT NO.227/2
1ST FLOOR, OPP. SAI BABA TEMPLE
SRIRAM NILAYA
B/W 14TH AND 15TH CROSS
MALLESHWARAM
BANGALORE-560003
...APPELLANT
(BY SRI. D.R.RAVISHANKAR, SENIOR COUNSEL [THROUGH VC]
A/W. SRI HONNAPPA S., ADVOCATE)
AND:
Digitally signed
by SHARANYA T 1. SRI MARIYAPPA
Location: HIGH AGED MAJOR
COURT OF
KARNATAKA ACP, CCB MIRZA ROAD
NEAR GANDHIVANA PARK, NAZARBAD
LOKARANJAN MAHAL ROAD
MYSURU,
KARNATAKA-570010
2. SRI KRISHNAPPA
AGED ABOUT 54 YEARS
R/AT No.1676, MALLESHWARAM
VIDYAPEETA ROAD, IJOOR,
RAMANAGARA TOWN
RAMANGARA-562159
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MFA No. 448 of 2021
3. SRI J.L. JAVANAIAH
S/O LATE SHRI LINGAIAH
AGED ABOUT 77 YEARS
NO 1676, MALLESHWARA LAYOUT
VIDYAPEETHA ROAD, IJOOR
RAMANAGARA-562159
...RESPONDENTS
(BY SRI. K.R.RAMESH, ADVOCATE FOR C/R3;
VIDE ORDER DATED 28.01.2021,
NOTICE TO R1 AND R2 ARE DISPENSED WITH)
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT.23.12.2020 PASSED ON IA NO.1 IN
O.S.NO.4450/2020 ON THE FILE OF THE LXXV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-76),
DISMISSING IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W.
SEC.151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
senior counsel appearing for the appellant and the learned
counsel appearing for caveator/respondent No.3.
2. This appeal is filed challenging the order passed by
the Trial Court in rejecting the application filed under Order
XXXIX Rule 1 & 2 read with Section 151 of CPC and allowing
the application filed under Order XXXIX Rule 4 of CPC, vacating
the interim order granted earlier.
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MFA No. 448 of 2021
3. The factual matrix of the case of the plaintiff before
the Trial Court is that while seeking an Interim order of
injunction in the said suit that he had purchased the property
which is mentioned in the schedule vide Sale deed dated
24.03.2016, which measures East to West 43 feet and North to
South 40 feet, which is described in the suit schedule property
and also contend that all the documents stands in the name of
the plaintiff. That on 21.09.2020, when the plaintiff was getting
clean the suit schedule property then defendant No.2 and
henchmen of defendant Nos.1 and 3 who are absolutely
strangers to the suit schedule property tried to trespass and
interfere with the plaintiff's possession. Hence, the plaintiff
resisted the illegal act of the defendants and sought the relief
of injunction.
4. The Defendant No.3 consequent upon the notice
issued to the defendants came up with the written statement
stating that Sy.No.No.26/2 originally belongs to one M.
Srinivas. The vendors of the plaintiff are the legal heirs of said
M. Srinivas. The said land owner formed residential sites in 2
acres 7 guntas. He sold site No.10 measuring 30 x 40 feet in
favour of K. Vasantharaja under an agreement of sale dated
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MFA No. 448 of 2021
04.02.1988 and also executed a GPA. Accordingly, he sold site
No.11 measuring 30 x 40 feet in favour of J.G. Nagaraja under
an agreement of sale dated 04.02.1988 and executed GPA after
receiving the sale consideration. The purchasers got changed
the khatha in their names and the khatha No.138 is assigned to
site No.10 and 136 is assigned to site No.11. In a portion of
site No.10, a road is formed by using 15 x 40 feet and the
remaining area is 15 x 40 feet. The said measurement is
entered in the khatha of K.Vasantharaja. Both the said
purchasers jointly sold Site Nos.10 and 11 in favour of S. Uma
under a registered Sale Deed dated 08.05.1992 based on the
GPA executed by Late Srinivas. She got changed khatha in her
name and paid tax. Thereafter, the defendants purchased the
said property under a registered sale deed 24.01.2011 from
Smt. Uma and become absolute owners and they are in
peaceful possession and enjoyment of the suit schedule
property. It is contended that the plaintiff has created
documents, when Site Nos.10 and 11 already sold by the
husband of the vendors of the plaintiff, question of again selling
the property does not arise and the same does not convey any
right in favour of the plaintiff.
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MFA No. 448 of 2021
5. The Trial Court having considered the pleadings of
the plaintiff as well as the defendants formulated the points
that whether the plaintiff has made out prima-facie case for
grant of temporary injunction, in whose favour the balance of
convenience leans and whether the plaintiff will be put to
irreparable injury and hardship if temporary injunction is
refused, answered these points as negative in coming to the
conclusion that while answering point No.4 viz., whether the
defendant No.3 has made out sufficient reasons for vacating
the interim order of status quo, as affirmative that it will cause
hardship to the defendants and the balance of convenience in
favour of the defendants. Hence, the present appeal is filed
before this Court.
6. The learned senior counsel appearing for the
appellant would vehemently contend that the suit schedule
property was sold by the legal heirs of Srinivas; the same is not
in dispute. The learned senior counsel also brought to the
notice of this Court that the layout copy, wherein Site Nos.10
and 11 comes within the layout and the same are not corner
sites. Now, the schedule mentioned in the document of the
defendants' vendor shows the property what they have
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purchased is the corner property and only mentioned the
assessment No.138 and 136. The learned senior counsel also
would contend that before purchase of the property in the year
2016, the records are standing in the name of the wife of the
said Srinivas and produced the documents along with the
memo viz., copy of the Partition Deed of the year 1975; copy of
the death certificate of M. Srinivas; copy of the Family tree of
the appellant; copy of the EC in respect of Sites No.10 & 11 for
the period from 2015 to 2017; copy of the khatha certificate of
appellant's vendor and the copy of the tax paid receipt in
respect of site Nos.10 and 11. The learned senior counsel would
vehemently contend that even the encumbrance certificate also
discloses with regard to the same and made out the prima facie
case. The learned senior counsel also would submit that the
suit schedule property is a vacant site and this Court already
granted an order of status quo and the status quo may be
continued and a direction may be given to the plaintiff to assist
the Court for disposal of the case within a time bound period.
7. Per contra, the learned counsel appearing for
respondent No.3 would vehemently contend that no dispute
with regard to the fact that Sy.No.26 belongs to one Srinivas
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MFA No. 448 of 2021
and he had formed the sites in the said survey number during
his life time and also sold the sites not only to the original
purchasers - K. Vasantharaja and J.G. Nagaraja and also sold
the sites to other prospective purchasers by executing the sale
agreement as well as the General Power of Attorney. The
learned counsel also would vehemently contend that the very
General Power of Attorney holders acquisition of a portion of
the property for utilizing of the portion of the property belong
to K. Vasantharajan to the extent of 15 x 40 feet. Both the
power of attorney holders have executed the Sale Deed only to
the remaining extent of 45 x 40 feet and the said S.Uma has
executed the Sale Deed in favour of the defendants in the year
2011 itself. The learned counsel also brought to the notice of
this Court even in the municipal records, site Nos.10 and 11 is
mentioned and the assessment number is also mentioned as
136 and 138. The description variation is with regard to
formation of the road in respect of the sites which belongs to
Vasantharaja. When all the documents clearly discloses that the
defendants are having a prima facie case and the Trial Court
having considered all these material on records giving the
reasons come to a conclusion that the plaintiff has not made
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MFA No. 448 of 2021
out any prima facie case. Hence, not granted any order of
injunction and vacated the earlier order granted by the Trial
Court by allowing the application and not committed any error.
8. Having heard the respective counsel and on perusal
of the material available on record, no doubt, the plaintiff is
claiming the title based on the Sale Deed dated 24.03.2016 and
the suit is filed for the relief of permanent injunction. Now, the
title is also in dispute between the parties. The suit is only for
bare injunction. When there is a cloud on the plaint in respect
of the suit schedule property, the better relief has to be sought.
Apart from that, it is not in dispute that the sites are formed in
Sy.No.26 of Valagerahalli Village and the property is also
belongs to the said Srinivas. The plaintiff claiming the right
based on the sale deed executed by the legal heirs of the said
Srinivas. The agreement of sale as well as GPA also in respect
of Site Nos.10 and 11, which was executed in the year 1988
and also in the present sale deed, the plaintiff, who is claiming
the right in respect of Site Nos.10 and 11 is also formed out of
the very same Sy.No.26, which belongs to the original owner
Srinivas. Subsequently, the GPA holders also executed the sale
deed in favour of the vendors of Smt. Uma and they have
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MFA No. 448 of 2021
executed Sale Deed in favour of Smt. Uma. In turn, Smt. Uma
executed the Sale Deed in favour of the defendants in the year
2011. When such being the case, when the property is already
sold by the said Srinivas, now, the question is whether the
vendors of the plaintiff are having right to convey the title in
favour of the plaintiff and this aspect has to be considered only
during the course of a trial and not at this stage. Only the
plaintiff has to make out a case for granting an order of
injunction and not made out any prima facie case to grant an
order of injunction invoking under Order XXXIX Rule 1 and 2 of
CPC. On the other hand, the defendants have claimed the right
in respect of the very suit schedule property relying upon the
documents of the year 1988 onwards, which have been
executed at the first instance by the said Srinivas. When such
being the case, I do not find any error committed by the Trial
Court in allowing the application filed under Order XXXIX Rule 4
of CPC. Hence, I do not find any merit in the appeal.
9. In view of the discussions made above, I pass the
following:
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ORDER
(i) The appeal is dismissed.
(ii) The Trial Court is directed to dispose of the
matter within a period of one year. Both the
parties and their respective counsel are
directed to assist the Trial Court for disposal
of the case within the time stipulated.
In view of disposal of the appeals, IAs., if any do not
survive for consideration and the same stands disposed of.
Sd/-
JUDGE
CP
