Sri B K Srinivas vs Sri R Jayachandra Reddy
2023 Latest Caselaw 1693 Kant

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                                                              MFA No. 1334 of 2023




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 3RD DAY OF MARCH, 2023

                                                    BEFORE
                              THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                           MISCELLANEOUS FIRST APPEAL NO. 1334 OF 2023 (CPC)

                      BETWEEN:

                      1.     SRI. B.K. SRINIVAS
                             S/O LATE KRISHNAPPA
                             AGED ABOUT 62 YEARS.

                      2.     SRI B.K. SRIDHAR
                             S/O LATE KRISHNAPPA
                             AGED ABOUT 59 YEARS.

                      3.     SRI. PRAKASH N
                             S/O LATE NAGARAJ
                             AGED ABOUT 35 YEARS.

                      4.     SMT. NIRUPAMA
                             W/O PRAKASH N
                             AGED ABOUT 33 YEARS

Digitally signed by
CHANDANA B M                 ALL ARE RESIDING AT
Location: High               BEGUR VILLAGE & POST
Court of Karnataka           BENGALURU SOUTH TALUK
                             BENGALURU - 560 068.
                                                                        ...APPELLANTS
                      (BY SRI. D.R. RAVI SHANKAR, SENIOR ADVOCATE FOR
                          SRI. MUNIRAJA .M.,ADVOCATE)

                      AND:

                      SRI R JAYACHANDRA REDDY
                      S/O SRI R RAJA REDDY,
                      AGED ABOUT 37 YEARS,
                      R/AT NO. 1/9 II FLOOR,
                      KORAMANGALA MAIN ROAD,
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                                               MFA No. 1334 of 2023




ADUGODI,
BENGALURU -560 030.
                                                        ...RESPONDENT

(BY SRI. JAYASHANKAR S. PATIL, SENIOR ADVOCATE FOR
    SRI. SRIHARI A.V,ADVOCATE)

      THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.151 OF CPC,
AGAINST    THE   ORDER     DT.20.01.2023   PASSED     ON   IA   NO.1   IN
O.S.NO.25029/2022 ON THE FILE OF THE IV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU, (CCH-21), ALLOWING
IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC.

      THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:



                             JUDGMENT

This appeal is directed against the impugned order dated

20.01.2023 passed on I.A.No.1 in O.S.No.25029/2022 by the IV

Addl.City Civil and Sessions Judge, Mayo Hall Unit, Bangalore,

whereby the said application filed by the respondent - plaintiff for

temporary injunction restraining the appellants - defendants from

interfering with his peaceful possession and enjoyment of the suit

schedule immovable property was allowed by the trial court.

2. For the sake of convenience, the parties are referred to

by their respective ranks in the suit before the trial court.

MFA No. 1334 of 2023

3. The material on record discloses that the respondent -

plaintiff instituted the aforesaid suit for permanent injunction and

other reliefs restraining the appellants - defendants from interfering

with his peaceful possession and enjoyment of the suit schedule

immovable property which was described as Western portion of

site bearing No.238, formed out of Sy.No.76 of Hongasandra

village, situated at Begur - Hongasandra MICO layout, Begur

road, Bangalore - 560068, as detailed in the schedule to the plaint.

The defendants filed their written statement not only denying /

disputing the claims and contentions of the plaintiff but also put

forth a counter claim for permanent injunction in relation to the

written statement schedule property by describing the same as a

land bearing Sy.No.76 measuring 31 guntas situated at

Hongasandra village, Begur Hobli, Bangalore South taluk, coming

within BBMP jurisdiction as detailed in the schedule to the written

statement. It is contended by the defendants that the plaintiff is

illegally and highhandedly attempting to put forth a false and

frivolous claim over the written statement schedule property

measuring 31 guntas in Sy.No.76 without having any right, title,

interest or possession over the same and that the suit of the

MFA No. 1334 of 2023

plaintiff was liable to be dismissed and the counter claim of the

defendants deserves to be allowed.

4. Along with the suit, the plaintiff filed the instant application

I.A.No.1 for temporary injunction and in the first instance, an ad-

interim ex-parte order of temporary injunction as sought for by the

plaintiff was not granted in his favour by the trial court. Subsequent

to the defendants entering appearance and filing their written

statement, counter claim and objections to I.A.No.1, the trial court

proceeded to pass the impugned order allowing I.A.No.1, thereby

restraining the defendants from interfering with the plaintiff's

possession and enjoyment of the plaint schedule property.

Aggrieved by the impugned order, the defendants are before this

Court by way of the present appeal.

5. Heard learned Senior counsel for the appellants and

learned Senior counsel for the respondent and perused the

material on record.

6. In addition to reiterating the various contentions urged in

the appeal and referring to the material on record, learned Senior

counsel for the appellants submit that the trial court committed a

grave and serious error of law in coming to the conclusion that the

MFA No. 1334 of 2023

plaintiff was in lawful possession and enjoyment of the plaint

schedule property. It is submitted that there was a serious dispute

with regard to identity and location of the plaint schedule property

and written statement schedule property and on this ground also,

the plaintiff was not entitled to an order of temporary injunction. It is

further submitted that the plaintiff was guilty of suppression of

material facts and had not come to Court with clean hands and was

not entitled to the discretionary and equitable relief of injunction.

7. On instructions, learned Senior counsel submits that if

the plaintiff is directed not to change or alter the nature or character

of the plaint schedule property and does not put up any

construction on the same pending disposal of the suit, the

defendants would not interfere or create any problem over the

plaint schedule property. It is therefore submitted that the

impugned order passed by the trial court deserves to be set aside.

8. Per contra, learned Senior counsel for the respondent

would support the impugned order and submits that there is no

merit in the appeal and that the same is liable to be dismissed.

MFA No. 1334 of 2023

9. Both sides would place reliance upon the documents

produced by the respective parties before the trial court and also

additional documents produced by them in the present appeal.

10. I have given my anxious consideration to the rival

submissions and perused the material on record.

11. A perusal of the pleadings and documents of the plaintiff

will indicate that it is his specific contention that Sy.No.76 of

Hongasandra village, measuring 3 acres 4 guntas was acquired by

the MICO Society which formed a residential layout on the said

land along with other lands. It is contended that the MICO Society

acquired the said land under sale agreement of the year 1989 and

irrevocable power of attorney dated 28.02.1992 alleged to have

been executed in favour of the Society by P.Ramaiah and others

including defendants 1 and 2. It is further contended that Syed

Hidayathulla was a member of the said Society in whose favour,

the MICO Society allotted the plaint schedule property bearing site

No.238 and executed a registered sale deed dated 07.11.1994 in

his favour and subsequently, executed a registered rectification

dated 23.04.2014 in his favour since there were mistakes in the

boundaries. It is also contended that the MICO society executed

MFA No. 1334 of 2023

the possession certificates in favour of the said Syed Hidayathulla,

who got the khata registered in his name and was paying taxes.

Upon his demise, the plaintiff purchased Western portion of the

plaint schedule site bearing No.238 vide registered sale deed dated

29.06.2020 and got the khata changed to his name and is paying

taxes and is in lawful and peaceful possession and enjoyment of

the plaint schedule property and since the defendants interfered

with his possession and enjoyment of the property, plaintiffs filed

the present suit for permanent injunction and other reliefs against

the defendants. In support of their claim, plaintiff relies upon

several documents.

12. Per contra, the defendants are contesting the suit inter

alia disputing and denying the allegations and claim put forth by the

plaintiff. It is contended that the defendants 1 and 2 are the

children of one late Krishnappa, while defendants 3 and 4 are his

grand children. The execution, genuineness and validity of the

alleged sale agreement and power of attorney have been

specifically disputed and denied by the defendants who have also

disputed and denied the alleged right, title, interest and possession

of the plaintiff and his predecessors-in-title including Syed

MFA No. 1334 of 2023

Hidayathulla and MICO Society over the plaint schedule property.

So also, the description, location, identity, measurement and

boundaries of the plaint schedule property as claimed by the

plaintiff is also disputed and denied by the defendants.

13. The defendants have contended that 30 guntas of land

in Sy.No.76 of Hongasandra village referred to as written statement

/ counter claim schedule property was owned and possessed by

Smt.Muniakkayamma @ Akkayamma, mother of late Krishnappa

and grand mother of defendants 1 and 2 and great grand mother of

defendants 3 and 4, having acquired the same under a registered

sale deed dated 27.09.1957, pursuant to which, the revenue

records stood in her name. It is contended that when Ramaiah got

the khata mutated into his name illegally in relation to the said 30

guntas, the defendants 1 and 2 got the same set aside by the order

of the Assistant Commissioner on 29.05.2003, pursuant to which,

the khata in relation to written statement / counter claim schedule

property has been mutated into the names of the defendants 1 and

2. Further, since Ramaiah had obtained a conversion order dated

17.12.1991 in respect of written statement / counter claim schedule

property also, the defendants 1 and 2 preferred

MFA No. 1334 of 2023

W.P.No.41890/2019 which was disposed of by this Court on

20.03.2020, with an observation that the said conversion order

would enure to the benefit of the defendants. It is also contended

that the plaintiff is putting forth a false claim over the written

statement schedule property and consequently, the defendants

have put forth a counter claim for permanent injunction and other

reliefs in relation to the written statement schedule property. In

support of their contentions, defendants have placed reliance upon

several documents to establish their claim.

14. A perusal of the impugned order will indicate that the

sole ground on which the trial court has allowed I.A.No.1 and

passed an order of temporary injunction in favour of the plaintiff is

that the defendants 1 and 2 along with Ramaiah and others had

instituted a suit in O.S.No.3825/1996 against MICO Society in

relation to the land bearing Sy.No.76 measuring 3 acres 4 guntas

and that the said suit was dismissed by the trial court on

16.10.2004 holding that the defendants 1 and 2 herein (plaintiffs 12

and 13 in the said suit) had not proved their possession and

enjoyment over the said property. However, a perusal of the said

judgment passed in O.S.No.3825/1996 will indicate that neither the

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MFA No. 1334 of 2023

claim of defendants 1 and 2 herein nor the legality / validity or

correctness of the claim of the MICO Society has been adjudicated

or decided by the trial court and in fact, the defendants 1 and 2

herein have not adduced any oral or documentary evidence.

Further, there is no clarity in the said judgment passed in

O.S.No.3828/1996 as regards the claim of defendants 1 and 2

herein or their relationship with the plaintiffs 1 to 11 and the

judgment in fact refers to plaintiffs 3 to 11 and the names of

defendants 1 and 2 herein is contained / found only in the cause

title to the judgment and not anywhere else in the body of the

judgment.

15. It is also relevant to state that the pleadings, evidence

etc., of the said suit are also not forthcoming for the present and

consequently, the said judgment in O.S.No.3825/1996 alone

without reference to the other material in relation to the said suit

and the claims / contentions of the defendants 1 and 2 herein in the

said suit could not have been made the basis to come to the

conclusion that the defendants 1 and 2 are not in possession of the

plaint schedule property.

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MFA No. 1334 of 2023

16. It is also relevant to state that the plaint schedule

property is Western portion of site No.238 in Sy.No.76, while

written statement / counter claim schedule property is the larger

extent of 31 guntas in Sy.No.76 and there is no finding recorded in

O.S.No.3825/1996 referred to supra as regards whether site

No.238 is situated in 2 acres 14 guntas claimed by Ramaiah or in

31 guntas claimed by the defendants written statement / counter

claim schedule property. In other words, the material on record

comprising of the plaint averments, description of plaint schedule

property, written statement and counter claim averments including

description of written statement / counter claim schedule property,

documents produced by both sides etc., will clearly indicate that

there is a serious dispute with regard to location and identity of the

plaint schedule property and written statement / counter claim

schedule property, apart from several contentious issues and

disputed / complicated questions of law and fact that arise for

consideration, which would necessarily have to be decided only

after a full fledged trial.

17. It is also significant to note that in the present appeal

also, both sides have produced additional documents which would

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MFA No. 1334 of 2023

also go to show that the controversy between the parties would

have to be resolved by the trial court after recording evidence. At

this stage, suffice it to state that it would be just expedient and

appropriate to dispose of the present appeal by modifying the

impugned order and by restraining both parties from changing or

altering the nature or character of the plaint schedule property and

written statement / counter claim schedule property and by issuing

further directions in this regard by leaving open all contentions to

be decided by the trial court.

18. In the result, I pass the following:-

ORDER

(i) Appeal is hereby disposed of by modifying the impugned

order dated 20.01.2023 passed on I.A.No.1 in O.S.No.25029/2022

by the IV Addl.City Civil and Sessions Judge, Mayo Hall Unit,

Bangalore, as hereunder:-

(a) Both the appellants and respondent are directed not to

change or alter the nature or character of the plaint schedule

property as well as the counter claim / written statement schedule

property nor put up any construction thereon in any manner

whatsoever till disposal of the suit by the trial court.

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MFA No. 1334 of 2023

(b) The appellants and respondent are also directed not to

alienate, encumber or create any third party rights over the plaint

schedule property or counter claim / written statement schedule

property or any portion thereof till disposal of the suit by the trial

court.

(c) The appellants - defendants are directed to deposit a

sum of Rs.10 lakhs in the suit before the trial court within a period

of four weeks from today by way of security towards loss,

compensation, damages etc., if any, that would be caused to the

plaintiff-respondent in view of he being restrained from putting up

any construction on the plaint schedule property as stated supra.

(d) The undertaking given on behalf of the appellants -

defendants that they would not interfere or create any problem to

the plaintiff-respondent in respect of the plaint schedule property is

placed on record.

(e) Both parties undertake to appear before the trial court on

20.03.2023; since the suit presently stands posted to 03.04.2023,

the trial court is directed to pre-pone / advance the same from

03.04.2023 to 20.03.2023 to enable compliance of the directions

issued in this order; liberty is also reserved in favour of the parties

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MFA No. 1334 of 2023

to seek advancement / preponement of the suit before the trial

court from 03.04.2023 to 20.03.2023.

(ii) The trial court is directed to dispose of the suit as

expeditiously as possible and at any rate within a period of four

months from 20.03.2023, without being influenced by the findings

and observations recorded in the impugned order.

(iii) All rival contentions between the parties on all aspects of

the matter are kept open and no opinion is expressed on the same.

Sd/-

JUDGE

Srl.