Karnataka High Court
Mrs Mehrunnissa vs Mr Anthony Raj on 28 June, 2023
Bench: H.P.Sandesh
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MFA No. 8543 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 8543 OF 2022 (CPC)
BETWEEN:
1. Mrs. MEHRUNNISSA
AGED ABOUT 60 YEARS
W/O Mr. HAFEEZ
R/AT NO.22, 1ST FLOOR
COCKBURN ROAD
NEAR BAMBOO BAZAAR
FRAZER TOWN
SHIVAJINAGAR
BENGALURU -560 051
...APPELLANT
(BY SRI. B.C. SEETHARAMA RAO, ADVOCATE)
AND:
1. Mr. ANTHONY RAJ
Digitally signed
by SHARANYA T AGED MAJOR
Location: HIGH S/O LATE JOSEPH
COURT OF
KARNATAKA
2. Mrs. MARY SHYLAJA
AGED MAJOR
W/O Mr. ANTHONY RAJ
BOTH RESIDING AT NO.165/17
DORESANIPALYA, B.G.ROAD
BENGALURU -560 076.
...RESPONDENTS
(BY SRI. H.C.SHIVARAMU, ADVOCATE)
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MFA No. 8543 of 2022
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 20.10.2022 PASSED ON I.A. NO.1
IN O.S.NO.5903/2021 ON THE FILE OF THE IX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (C.C.H.5),
DISMISSING I.A.NO.1 FILED UNDER ORDER 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. Heard the learned
counsel appearing for the appellant and the learned counsel
appearing for caveator/respondent Nos.1 and 2.
2. This appeal is filed challenging the order passed by
the Trial Court in rejecting the application filed under Order 39,
Rule 1 & 2 of CPC, wherein, prayed the Court to restrain the
defendants from interfering with plaintiff's lawful possession
over the suit schedule property
3. The plaintiff in support of the application filed an
affidavit contending that the property was purchased in the
year 1988 vide Sale Deed dated 16.05.1988 measuring 30 x 40
feet and the same bearing No.8, Khatha No.171:125 situated at
Doresanipalya, Bilekahalli, Begur Hobli, Bengaluru-560 076, by
the previous owners Late Mr. Joseph and his children, who were
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MFA No. 8543 of 2022
minors at the time of executing the said dale deed and
defendant No.1 is one of the son of the said Joseph.
4. It is also contended that since from the date of
purchase, she was in possession and enjoyment of the suit
schedule property and she had constructed a small structure
with compound wall and due to passage of time, the said
structure stood dilapidated. She further contended that when
she visited the suit schedule property on 12.10.2020, the
defendants attempted to interfere with her peaceful possession
and attempted to inscribe their names on the compound wall
and have not allowed her inside the schedule property, hence,
she had filed a complaint on 14.10.2020 before the Puttenahalli
Police, who warned the defendants not to interfere with her
possession over the suit schedule property.
5. It is also contended that again on 18.10.2021,
when she visited the suit schedule property along with her
husband, they found that the dilapidated structure was
removed from the suit schedule property and construction
materials were dumped to put up some construction, hence,
the same was protested, but the defendants threatened with
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dire consequences. Hence, the suit was filed inter alia sought
for an order of injunction.
6. It is also the case of the plaintiff that earlier
defendant No.1 had filed a suit in O.S.No.6601/2014 and
arrayed the plaintiff as defendant No.18, wherein, also
categorically admitted that the property was sold in favour of
the plaintiff and the said suit was also dismissed by allowing an
application filed under Order VII Rule 11(a) and (d) of CPC for
rejection of suit and an R.F.A., is also filed, wherein, no stay
order has been granted. Hence, defendant No.1 has no
manner of right, title or interest over the suit schedule
property. Hence, prayed the Court to grant the relief of
temporary injunction.
7. Defendants have appeared and filed the written
statement contending that the very suit itself is not
maintainable and the averments made in the plaint that the
plaintiff is the absolute owner in possession of the suit schedule
property and she got constructed a small structure along with
compound wall and intervention of these defendants over the
suit schedule property was denied and it is claimed that the
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MFA No. 8543 of 2022
defendants are in lawful possession and enjoyment of the
property bearing Old No.165/17 and New No.171/125/8,
situated at Doresanipalya, Bilekahalli, Begur Hobli, Bengaluru,
measuring east to west 40 feet and north to south 53 feet,
since 1997.
8. It is also their claim that Mr. Joseph and his
children have executed a power of attorney dated 24.08.1987
in favour of Shri M. Govindan executed before the Additional
Judge of Small Causes Court, Bengaluru in respect of the
property No.171/125/8, measuring east to west 40 feet and
north to south 30 feet in turn said M. Govindan entered into an
agreement of sale dated 22.12.1996 with the second defendant
by receiving sale consideration and delivered the possession of
the said property in favour of the 2nd defendant on 06.07.2020
by executing a registered sale deed dated 06.07.2020 before
the Sub-Registrar, in favour of the 2nd defendant. Defendant
No.2 has constructed a house in the year 1998 and she was
residing along with her family. The defendants also had a small
petty shop in the suit schedule property and have taken water
and electricity connection and paying taxes to BBMP and now
they are modifying the old building by additional construction to
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the old existing structure and they are in possession and
enjoyment of the suit schedule property since 1997.
9. The Trial Court having considered the grounds
urged in the application, the contentions raised by the
defendants in the objection statement and also taken note of
the documents, which have been produced before the Court
came to the conclusion that it is the claim of the plaintiff that
she was in lawful possession of the property. It is the claim of
the defendants that they are in possession of the property and
they have constructed the building. On perusal of the
photographs produced by the defendants, they reflect that the
defendants have constructed the house and it is on the
plastering stage and installation of windows and doors were
remaining and the defendants constructed the multi storied
building and at this juncture, if the injunction is granted against
the defendants, it would cause prejudice to the defendants and
the plaintiff kept open the completion of the construction. The
suit is for the bare injunction and the Court cannot decide the
title and ownership. While granting an order of injunction, the
plaintiff has to establish the possession. The possession is with
the defendants. Hence, came to the conclusion that prima facie
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case is made out by the defendants and not by the plaintiff and
the balance of convenience is in favour of the defendants and
not in favour of the plaintiff and rejected the application.
10. The learned counsel appearing for the appellant
would vehemently contend that the very observation made by
the Trial Court is that the defendants are in possession and
they constructed the building is erroneous. The learned
counsel also brought to the notice of this Court that the very
pleading of the first defendant before the City Civil Court in
O.S.No.6601/2014 and brought to the notice of this Court
paragraph No.22 of the plaint and also brought to the notice of
this Court the suit filed by him was dismissed, where the very
first defendant admitted that the sale deed was executed in the
year 1988 in respect of this plaintiff also. When already they
have sold the property they cannot claim in respect of the very
suit schedule property and they committed fraud against the
plaintiff. The learned counsel also would vehemently contend
that the very observation made by the Trial Court is that the
defendant is in possession and no prima facie case is made out
by the plaintiff is erroneous. Hence, it requires interference.
The learned counsel also would vehemently contend that this
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Court on 06.02.2023 passed an order of status quo and no
respect to the order of status quo also. The building
construction was completed as against the order of this Court.
The learned counsel for the appellant also would submit that
not to claim any equity and not to create any third party rights
or otherwise it amounts to multiplicity of proceedings.
11. Per contra, the learned counsel appearing for
respondents/defendant Nos.1 and 2 would submit that, it is not
in dispute that the property originally belongs to the father of
the first defendant and also he did not deny the very averment
made in the earlier suit in O.S.No.6601/2014. The learned
counsel would vehemently contend that the measurement
mentioned in the sale deed is different i.e., 30 x 40 feet. The
defendants are in possession to the extent of 40 x 53 feet and
they have put up the construction and the measurement is
different. The plaintiff, who is claiming the right in respect of
the property, is not in respect of the property which she has
intended to purchase the property and what she has purchased
the property. The Trial Court having taken note of the
possession with the defendants and also the plaintiff did not
dispute the fact that they have constructed the building and
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rightly came to the conclusion that the possession has not been
established. Hence, the Trial Court has not committed any
error.
12. Having heard the respective counsel and on perusal
of the material available on record, it is not in dispute that
originally the property belongs to the father of the first
defendant and also there was a sale in favour of the plaintiff in
the year 1988 and the Sale Deed was also executed on behalf
of the minors. It is also important to note that in the plaint, the
description of the property is given as Site No.8 carved out of
Sy.No.165/17 and the Khatha No.171:125 and measurement is
east to west 40 feet and the same is in terms of the Sale Deed
executed in favour of the plaintiff.
13. It is also important to note that the very defendant,
who had filed the earlier suit in O.S.No.6601/2014
categorically, admitted the sale of the suit schedule property in
favour of this plaintiff. The plaintiff also arrayed as defendant
No.18 in the said suit. Hence, it is clear that there was a sale
made by the father in respect of the property which was sold in
favour of the plaintiff and the same is questioned. Now, the
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defendants are also claiming right in the objection statement.
But the fact is that already the building was constructed and
the Trial Court also made an observation in paragraph No.15
that when the house was constructed and the same was in the
plastering stage and also the plaintiff's counsel is not disputed
the fact that the building is constructed. Now, the dispute is
with regard to in which property, the construction was taken
place. The plaintiff is also claiming the very same property that
she is in possession. But, admittedly, the building is
constructed. No doubt, the suit was filed in the year 2021 itself
and no interim order was granted by the Trial Court.
Ultimately, the Trial Court considered the matter in the month
of October 2022 and at that time already building was
constructed and the same was in the finishing stage. When
such being the case, the Trial Court has not committed any
error in rejecting the application since the prayer is also sought
not to interfere with the plaintiff's lawful possession over the
suit schedule property and already the building was constructed
by defendant No.1. When such being the case, the question of
granting an order of injunction not to interfere with the
possession of the plaintiff does not arise. I do not find any error
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committed by the Trial Court in passing such an order. The
plaintiff is also claiming right in respect of the property based
on the sale deed. When the plaintiff fails to prove that the
plaintiff is in possession and when the building has come up in
the said property and the defendants are claiming that the
same is constructed by them, it is also their claim that earlier
there was a building and the same is modified by putting up
additional construction. When such allegation is made if the
property is sold in favour of the plaintiff by the father of the
defendant and also on behalf of the minors, in the very same
property, the defendants have constructed the house and they
cannot claim any equity in future because they cannot sell the
property and again construct the building in the very same
property and also not to create any third party rights, the same
leads to multiplicity of proceedings.
14. With these observations, this appeal can be
disposed of. The plaintiff can seek appropriate relief before the
Trial Court in view of the construction of the building. The Trial
Court is also directed to dispose of the matter within nine
months. Both the parties and their respective counsel are
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directed to assist the Trial Court for disposal of the matter
within a period of nine months.
15. With these observations, the appeal stands disposed
of.
In view of disposal of the appeal IAs., if any do not
survive for consideration and the same stands disposed of.
Sd/-
JUDGE
CP
