Karnataka High Court
Sri. Babu. A vs T. V. Rajeshwari on 22 June, 2023
Bench: H.P.Sandesh
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MFA No. 1199 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 1199 OF 2023 (CPC)
BETWEEN:
1. SRI. BABU A.,
S/O. K.V. ARUNRAJ
AGED ABOUT 41 YEARS
R/AT NO.33, V.B. CITY
MYLANAHALLI VILLAGE
KASABA HOBLI
NELAMANGALA TALUK
BANGALORE-562 123.
2. SRI H.D. HARSHA
S/O. H.T. DEVENDRAPPA
AGED ABOUT 32 YEARS
R/AT HYADALU VILLAGE
KASABA HOBLI
NELAMANGALA TALUK
Digitally signed
by SHARANYA T BANGALORE-562 123.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA
(BY SRI KALYAN R., ADVOCATE)
AND:
1. T.V. RAJESHWARI
W/O. LATE VISHWASENA
AGED ABOUT 48 YEARS
R/AT BRAHMARAYAPPA COMPOUND
WARD NO.2, SIRAGATE
TUMAKURU-572 101.
2. NAGABHUSHANA.
S/O. D.S.CHANDRASHEKAR
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MFA No. 1199 of 2023
AGED ABOUT 43 YEARS
R/AT M/S. CHANDRASEHKAR ENTERPRISES
INDIAN OIL KEROSENE DEALERS, N.H-4
SIRA-572 137.
3. D.C. NANDA JYOTHI
W/O. SATHEESH
D/O. D.S. CHANDRASHEKAR
AGED ABOUT 42 YEARS
R/AT NO.584, 2ND 'B' MAIN
11TH BLOCK, NEAR B.G.SCHOOL
NAGARABHAVI
BANGALORE-72.
...RESPONDENTS
(BY SRI Y.R.SADASHIVA REDDY, SENIOR COUNSEL A/W.
SRI RAHUL S. REDDY, ADVOCATE FOR R1;
VIDE ORDER DATED 13.06.2023,
NOTICE TO R2 AND R3 IS HELD SUFFICIENT)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W. SECTION 151
OF CPC, AGAINST THE ORDER DT. 05.01.2023 PASSED ON I.A.
NO.1 IN O.S.NO.438/2022 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, TUMAKURU, ALLOWING THE
I.A. FILED U/O.39 RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellants and learned counsel for the
respondent No.1.
2. This appeal is filed challenging the order passed by
the Trial Court dated 05.01.2023 passed on I.A.No.1 in
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MFA No. 1199 of 2023
O.S.No.438/2022 allowing the application filed under Order 39,
Rule 1 and 2 of C.P.C. directing both the parties to maintain
status-quo, till the disposal of the suit.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that, land bearing old Sy.No.148/149,
resurvey No.173 of Tumakuru Kasaba Shira Gate, Ward No.2
bearing Municipal Khatha Old No.3849/3235/3823 measuring
336 ft. x 64 ft. (105.95 mtrs. x 19.50 mtrs.) is the suit
property herein acquired by the plaintiff from one T.P.
Padhmarajaiah and T.P. Brahmaiah, who is the father-in-law of
the plaintiff. Originally the same was purchased from one
Chinnappa under registered sale deed dated 25.01.1947 and
said Chinnappa had purchased the same from one Puttannaiah
under registered sale deed dated 07.08.1912. Even since from
the date of purchase, the plaintiff ancestors were in lawful
possession and enjoyment and thereafter, the plaintiff has been
in possession and enjoyment of the suit schedule property as
absolute owner. It is also contended that the land purchased
under registered sale deed was a revenue land in
Sy.No.148/149 (old) new Sy.No.173 and since the suit property
comes within the city municipality, the municipal khatha of
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MFA No. 1199 of 2023
schedule property was accepted in the name of T.P.
Padhmarajaiah since from the year 1952-53. After the death of
said T.P. Padhmarajaiah the same was transferred to the name
of T.P.Brahmaiah, who is the father-in-law of plaintiff and Form
No.3 was also accepted and after the death of T.P. Brahmaiah
the same was transferred to the name of plaintiff. It is also the
contention that the western portion of schedule property was
leased to run Kerosene business and one tiled roofed house
was also let out to the tenant during lifetime of the said T.P.
Padhmarajaiah and after they vacated the same as the plaintiff
has leased the old house to the tenant and vacant site leased
to run Nursery Form for a ground rent and also put up
compound with barbed wire-fence.
4. It is also contended that one Kannaiah Shetty was
illegally entered into RTC khatha column without any mutation
or document and even he was neither the purchaser nor have
any right, title and possession but taking advantage of the false
illegal khatha entered in the RTC, the defendant Nos.1 and 2 in
collusion with each other illegally obtained the revenue entries
in their name in collusion with revenue authorities without any
supportive registered document. The defendant Nos.1 and 2
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have tried to interfere with the possession of plaintiff. Hence,
the suit was instituted in O.S.No.178/2012 for permanent
injunction against the defendant Nos.1 and 2 and the suit was
decreed on 06.03.2014. The defendant No.2 has preferred
regular appeal in RA No.91/2014, and the matter was
remanded back to the Trial Court on 07.12.2018 and directed
the defendant to file written statement and the said matter is
still pending.
5. It is also contended that in the meanwhile the
defendant No.2 in collusion with defendant No.1 concealing the
above suit pending before VI Additional Junior Civil Judge. The
defendant No.2 has filed the partition suit against defendant
No.1 by including the suit schedule property in O.S.No.97/2013
on the file of Principal Civil Judge, Tumakuru. In the said suit,
this plaintiff voluntarily impleaded as necessary party and
sought for counter claim. On 11.02.2021 the present
defendant No.2 has filed a memo to get the suit dismissed.
When there is a counter claim of the plaintiff, the Court has
given permission to continue the suit as there was a counter
claim which is still pending for adjudication. The defendant
Nos.1 and 2 in collusion with each other sold the suit schedule
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property to defendant Nos.3 and 4, even though these
defendants have no manner of right, title much less possession
of any portion of the schedule property. The defendant Nos.3
and 4 who being the alleged purchaser was not in possession of
the schedule property but taking advantage of the alleged
document causing interference with the possession of plaintiff
by denying the title of plaintiff and making illegal attempts to
dispossess the plaintiff and also want her to vacate the
schedule property. Therefore, the plaintiff has approached the
Court for the relief of declaration and permanent injunction and
interalia sought for an order of temporary injunction.
6. The defendant Nos.3 and 4 have filed the written
statement and contending that the defendant Nos.3 and 4 have
purchased Sy.No.173/6 for a valuable consideration from
defendant Nos.1 and 2 under registered Sale Deed dated
07.01.2022, after verifying the legality of the property bearing
Sy.No.173/6. It is also the contention that Sy.No.173/6 is the
ancestral property of defendant Nos.1 and 2 and as per MR
No.34/2011-12 in RRT (Dis) CR 85/2010-11 dated 09.08.2011,
the defendant No.2 name was mutated in RTC, after the death
of their father Chandrashekaraiah. It is also their contention
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that from more than 40 years, the name of ancestors of
defendant Nos.1 and 2 had been reflected in respect of
Sy.No.173/6 in column No.9 of RTC. The survey records issued
by Survey Department are crystal clear that the property
purchased by this defendant is located in Sy.No.173 and after
phode it was assigned with new sub Sy.No.173/6.
7. The Trial Court having considered the pleading of
the plaintiff as well as the defendants came to the conclusion
that in order to change Sy.No.148, it has become Sy.No.173.
No survey records are produced by the plaintiff to substantiate
the same. On the other hand, the defendants, who claim that
they have purchased the property, they have also not produced
any documents with regard to the very title of defendants No.1
and 2. Having taken note of the fact that both the parties have
not filed any documents with regard to change of survey
number, the Trial Court passed an order that both the parties
are directed to maintain status quo since the suit is filed for the
relief of declaration. Hence, the present appeal is filed before
this Court.
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8. The learned counsel appearing for the appellants
would vehemently contend that when the Court came to the
conclusion that regarding change of Sy.No.148 into Sy.No.173,
no document had been produced and came to the conclusion
that no prima facie case is made out and ought not to have
granted the relief of status quo. The learned counsel also would
vehemently contend that the defendants are claiming right in
respect of Sy.No.173/6 and also it is their case that earlier it
was Sy.No.173 and after the phode, it becomes Sy.No.173/6
and they claim the rights through defendant Nos.1 and 2 and
there is a Sale Deed of the year 2022. Hence, the Trial Court
ought not to have granted the relief of status quo when the
plaintiff has not made out a case.
9. On the other hand, the learned senior counsel
appearing for the respondents would vehemently contend that
this property was originally sold in the year 1947 in favour of
Padhmarajaiah and he was not having any issues and the
property vest with his brother T.P.Brahmaiah and the plaintiff is
the daughter-in-law of the said T.P.Brahmaiah and all the
documents from 1904 to till date discloses with regard to the
municipal numbers, which are assigned to the property and
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they have constructed the building and they are in possession
and also let out the premises and the suit is filed for the relief
of declaration and the plaintiff has to prove the title with regard
to the suit schedule property and the documents from 1952
onwards are placed before the Trial Court for having assigned
the municipal numbers. Having taken note of the dispute
between the parties with regard to both are claiming the title in
respect of the very same property, the Court rightly passed an
order of status-quo and the same cannot be find fault with the
order of the Trial Court. Hence, the appellants have not made
out any grounds.
10. Having heard the respective counsel and it is the
claim of the plaintiff that earlier Sy.No.148 and the same is re-
numbered as Sy.No.173. Admittedly, no document is placed
before the Trial Court with regard to change of Sy.No.148 into
Sy.No.173. It is the claim of the defendants that they have
purchased the property in the year 2002 from defendant Nos.1
and 2. Defendants No.1 and 2 sold the property as their
ancestral property and they were in possession from the last 40
years. But no documents are placed before the Trial Court by
the defendants also to establish that the property is the
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ancestral properties of defendant Nos.1 and 2. Admittedly,
there is a dispute between the parties and earlier also the suit
was filed in O.S.No.178/2012. When the injunction was
granted, the same was challenged by defendant No.2 in appeal
and the same was remitted back to the Trial Court and the
matter is also pending and the records reveals that the
defendant Nos.1 and 2 have also filed one more suit seeking
the relief of partition and the same is also numbered as
O.S.No.97/2013, wherein, the plaintiff has also made the
counter claim and also the records reveal that the memo was
filed for withdrawal of the suit and the same was not permitted
since there was a counter claim by the plaintiff and the said suit
is also pending and both are claiming right in respect of the
very same property. It is the case of the plaintiff that the
property was purchased from one T.P.Bheemaiah in the year
1947, wherein, the municipal number was assigned since from
the year 1952-53, and the property comes within the limit of
municipal area. When such being the case, even though, no
corresponding survey numbers in respect of the property is
concerned, the Trial Court has not granted an order of
restraining interference but only directed to maintain status
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quo. Both the parties are claiming right in respect of the very
same property contending that the numbers are changed on
account of the Phode. When such being the material, I do not
find any error committed by the Trial Court in passing an order
of status quo since the suit is filed for the relief of declaration
and the plaintiff has to make out her case with regard to the
claim and no dispute with regard to the identity. The only
dispute is with regard to change of survey number as well as
both parties are claiming rights in respect of the same
municipal No.3823 and different old numbers are also given in
the suit schedule property. In the earlier suit also khatha
number 3823 was given. The plaintiff claiming the present
khatha number i.e., 3823/44. When such being the case, I do
not find any error committed by the Trial Court in passing the
order of status quo. Hence, no merit in the appeal.
11. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
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In view of dismissal of the appeal, I.A.No.1/2023 for stay
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
ST,CP
