Karnataka High Court
Sri T V Maruthi vs Sri V R Marappa on 23 May, 2023
Bench: Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MISCELLANEOUS FIRST APPEAL NO.6052 OF 2021 (CPC)
BETWEEN:
SRI. T.V.MARUTHI,
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1. SMT. SUNANDA,
W/O LATE T.V.MARUTHI,
AGED ABOUT 76 YEARS,
REP. BY HER SPA HOLDER
SRI. VIJAYANAND M.V.,
S/O LATE T.V.MARUTHI,
AGED ABOUT 55 YEARS.
2. SRI. VIJAYANAND M.V.,
S/O LATE T.V.MARUTHI,
AGED ABOUT 55 YEARS,
3. SRI. M.V.MUKUND,
S/O LATE T.V.MARUTHI,
AGED ABOUT 52 YEARS,
REP. BY HIS SPA HOLDER
SRI. VIJAYANAND M.V.,
S/O LATE T.V.MARUTHI,
AGED ABOUT 55 YEARS,
ALL APPELLANTS ARE R/A NO.128, 1ST CROSS,
LAVELLE ROAD, BENGALURU-560 001. ...APPELLANTS
[BY SRI RAJESWARA P.N., ADVOCATE (PH)]
AND:
1. SRI. V.R.MARAPPA,
S/O LATE RAMAIAH,
AGED ABOUT 67 YEARS,
2
2. SMT. MALAVATHI,
W/O MR.V.R.MARAPPA,
AGED ABOUT 66 YEARS,
3. SRI. SRINIVAS M.,
S/O MR. V.R.MARAPPA,
AGED ABOUT 33 YEARS,
4. SMT. MANJULA,
D/0 MR.V.R.MARAPPA,
AGED ABOUT 41 YEARS,
5. SMT. SOWBHAGYA,
D/O MR.V.R.MARAPPA,
AGED ABOUT 39 YEARS,
RESPONDENTS NO.1 TO 5 ARE
R/A NO.E-163/3, 1ST AND 2ND CROSS,
10TH 'B' MAIN ROAD, JAKKUR LAYOUT,
YELAHANKA, BENGALURU-560 066.
6. M/s. TMR DEVELOPERS PVT. LTD.,
PROPRIETOR OF LIMITED COMPANY
INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS OFFICE AT FLAT NO.142 & 143,
LAKSHMI GANAPATHINAGAR, KOGILU VILLAGE,
YELAHANKA, BENGALURU-560 064.
REP. BY ITS MANAGING DIRECTOR,
SRI. T.MADHAVA RAO, S/O MALYADRI,
AGED ABOUT 44 YEARS.
7. THE TAHSILDAR
BANGALORE NORTH ADDITIONAL,
YELAHANKA, BENGALURU-560 064. ...RESPONDENTS
[BY SRI. A.KESHAVA BHAT, ADVOCATE FOR R1 TO R6 (PH)]
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER ORDER 43
RULE 1(r) R/W SECTION 151 OF CPC., AGAINST THE ORDER DATED
26.10.2021 PASSED ON I.A.NO.1, 2 AND 3 IN O.S.NO.747/2021 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, REJECTING I.A.NO.1 AND 2 FILED U/O 39 RULE 1 AND 2 R/W
SECTION 151 OF CPC., CONSEQUENTLY ALLOWING I.A.NO.3 FILED
U/O39 RULE 4 R/W SEC. 151 OF CPC.,
3
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.11.2022, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Challenging impugned order dated 26.10.2021 passed by II
Addl. Senior Civil Judge, Bengaluru on I.A.nos.I/2021 to III/2021 in
O.S.No.747/2021, this appeal is filed.
2. Appellants no.1 to 3 herein are legal representatives of
original plaintiff - T.V.Maruthi, who died during pendency of this
appeal. Respondents no.1 to 7 herein were defendants no.1 to 7 in
suit.
3. O.S.No.747/2021 was filed for relief of declaration that
plaintiff was absolute owner of item no.1 and 2 of suit schedule
property by virtue of registered sale deed dated 26.10.1993 and
17.08.1994; to declare sale deed dated 21.10.2020 executed by
defendants no.1 to 5 in favour of defendant no.6 as null and void
and same is not binding on plaintiff and for permanent injunction
restraining defendant no.6 from alienating etc. or altering nature of
suit schedule property in any manner etc.
4. Two properties each measuring 01 acre 33 ½ guntas in
Sy.no.96, situated at Kogilu village, Yelahanka Hobli, Bangalore
North Taluk, described with separate boundaries were items no.1
and 2 in plaint schedule (for short 'suit properties').
5. In suit plaintiff filed I.A.no.I under Order XXXIX Rules 1
and 2 of CPC restraining defendants from interfering with
possession of suit property. I.A.no.II was filed under Order XXXIX
Rules 1 and 2 of CPC restraining defendant no.6 from alienating,
transferring or encumbering schedule property in any manner till
disposal of suit. While I.As.no.I and II were filed by plaintiff,
I.A.no.3/2021 was filed by defendant no.6 under Order XXXIX Rule
4 of CPC for vacating order of ex parte temporary injunction
granted on 08.04.2021.
6. In affidavit filed in support of I.A.no.I/2021, it was
stated that suit was filed for declaration of plaintiff's title and
consequential relief of permanent injunction in respect of suit
properties. It was stated that plaintiff was absolute owner in
possession and enjoyment of bearing Sy.no.96 of Kogilu village,
measuring 03 acres 27 guntas. Originally it belonged to
Sri Muniyappa @ Koorlappa and Sri Munibeerappa. They sold it to
Sri Munishamappa @ Motappa under registered sale deed dated
10.05.1965. After intestate death of Munishamappa, name of his
son Sri Chikkanna was entered in record of rights (for short 'RoR').
Thereafter, Sri Chikkanna sold it under two registered sale deeds
dated 17.09.1993 and 24.10.1993 to plaintiff and from date of
purchase, plaintiff was in peaceful possession and enjoyment as
absolute owner.
7. But defendant no.1 colluding with revenue officials
created, manipulated and impersonated documents showing that
late Munishappa had given wardi to enter name of defendant no.1
in respect of 2 acres 32 guntas in Sy.no.96. On basis of same, he
illegally sold suit properties to defendant no.6. It was stated that
defendant no.6 colluding with defendants no.1 to 5 were interfering
with plaintiff's possession and enjoyment of suit properties.
A complaint was also lodged with police. In view of same, he sought
for grant of temporary injunction.
8. Likewise, I.A.no.II was filed under Order XXXIX Rules 1
and 2 of CPC for restraining defendant no.6 from alienating etc. suit
properties in any manner. In affidavit filed in support of application,
it was stated that based on impugned order, defendant no.1
illegally sold suit properties to defendant no.6. Subsequently,
suppressing pending litigation, defendant no.6 was trying to
alienate suit properties to third parties. Therefore, petitioner was
entitled for protection by way of injunction.
9. On consideration, trial Court had granted ex-parte
ad-interim temporary injunction on 08.04.2021.
10. On appearance, defendant no.3 filed written statement.
Same was adopted by defendants no.1, 2, 4 and 5. Defendant no.6
filed separate written statement. In written statement they
contended that suit filed by plaintiff was only to harass defendants
and was not maintainable either in law or on facts.
11. Defendant no.6 contended that plaintiff was not entitled
for relief sought in plaint, averments in plaint were false, frivolous
and vexatious. It denied that suit properties originally belonged to
Sri Muniyappa @ Munishamappa @ Motappa under registered sale
deed dated 10.05.1995. Even entry of name of
Sri Chikkanna in RoR was denied. It was stated that Sri Chikkanna
son of Sri Munishamappa did not succeed to aforesaid property as
same was vested with Government under provisions of Karnataka
Land Reforms Act, 1961 (for short 'LR Act'). It was contended that
endorsement dated 17.09.1993 was concocted. Claim that
Sri Chikkanna as absolute owner sold suit properties under
registered sale deeds dated 26.10.1993 and 17.08.1994 was also
denied.
12. Along with written statement defendant no.6 filed
I.A.no.III under Order XXXIX Rule 4 of CPC for vacation of ex-parte
interim injunction granted on 08.04.2021. In affidavit filed in
support of application, it was stated that plaintiff by taking
advantage of ex-parte interim injunction attempting to grab suit
properties and harass defendants, though defendant no.6 had
purchased suit properties under registered sale deeds and was in
peaceful possession and enjoyment and therefore, plaintiff was
having no right over suit properties. Hence, sought for allowing
I.A.no.III.
13. Based on contentions, trial court framed following
points for consideration:
1. Whether the plaintiff has made out the
prima-facie case?
2. Whether the balance of convenience lies in
favour of the plaintiff?
3. Whether the irreparable loss and injury will
be caused to the plaintiff, if the temporary
injunction is not granted as prayed IA No.I
and II?
4. Whether the defendant No.6 has made out
sufficient grounds to allow the I.A. No.III
filed under Order XXXIX Rule 4 r/w Section
151 of CPC?
5. What order?
14. On consideration, trial Court passed impugned order
rejecting plaintiff's I.As.no.I and II and allowing I.A.no.III filed by
defendant no.6. Aggrieved, plaintiff is in appeal.
15. Sri Rajeswara P.N., learned counsel for plaintiff
submitted that originally Sy.no.96 of Kogilu village belonged to
Sri Muniyappa @ Kurlappa and Sri Munibeerappa. They sold it to
Sri Munishamappa @ Motappa under registered sale deed dated
10.05.1965. Thereafter, revenue records were standing in his
name, until his death. After his intestate death, RoRs were mutated
in name of his son Sri Chikkanna.
16. It was submitted that as plaintiff was interested in
purchasing suit properties, after due diligence verifying whether any
Form no.7 were filed in respect thereof and after obtaining
endorsement dated 17.09.1993, that there were no claims in
respect of suit properties purchase it under two sale deeds.
17. Based on fictitious entries, defendants no.1 to 3
attempted to interfere with plaintiff's possession. Therefore,
O.S.no.225/2020 was filed before Civil Judge (Jr.Dn.) Bengaluru
Rural District. During pendency of said suit, defendants no.1 to 5
sold suit properties to defendant no.6. In view of same, plaintiff
withdrew earlier suit and filed present comprehensive suit seeking
for declaration of his title and also for declaration of sale deed
executed by defendants no.1 to 5 in favour of defendant no.6 as
null and void and for consequential relief of permanent injunction.
18. It was submitted that defendant no.1 in collusion with
revenue officials created documents and based on same obtained
order conferring occupancy rights. Said order was contrary to
endorsement that land bearing Sy.no.96 of Kogilu village was not
subject matter of any claim. And based on such illegal order names
were got mutated and though defendant no.1 was never in
possession, defendants no.1 to 5 have clandestinely sold suit
properties to defendant no.6. It was submitted that though plaintiff
had challenged order of Land Tribunal, said writ petition came to be
dismissed. Therefore, plaintiff having acquired title under valid
registered sale deed was entitled for declaration of title.
19. It was submitted that in said suit, plaintiff had filed
I.As.no.I and II for temporary injunction against defendants from
interfering with peaceful possession as well as against alienating or
encumbering suit properties. By order dated 06.04.2021, trial Court
had granted ex-parte ad-interim injunction. However, after
considering objection and application for vacating ex-parte order of
temporary injunction, under impugned order, trial Court allowed
I.A.no.III filed by defendant no.6 while dismissing I.As.no.I and II
filed by plaintiff.
20. It was contended that trial Court considered only
documents submitted by defendant no.6 without giving due regard
to documents produced by plaintiff. It was submitted that basic
requirement while considering application under Order XXXIX Rule
1 and 2 of CPC., namely possession was not examined in proper
perspective. It was submitted that plaintiff had produced not only
documents of title namely, registered sale deeds but also extracts
of RoRs. Contentions urged by plaintiff were given complete go by.
Contention of plaintiff that order of Land Tribunal was obtained
fraudulently was substantiated by Police filing charge-sheet against
defendant no.1. Such being case, merely on ground that defendant
no.6 had got orders for conversion of lands for non-agricultural
purposes proceeded to pass impugned order. Fact that said orders
were passed during pendency of earlier suit was not given due
weightage.
21. It was further submitted that even while considering
I.A.no.II, trial Court failed to appreciate that plaintiff as well as
defendant no.6 were claiming title to suit properties and therefore,
it was necessary to preserve nature of suit properties during
pendency of suit. Therefore, rejection of I.A.no.II was also not
justified. In any case, claim of defendant no.1 was confined to
extent of 02 acres 32 guntas whereas plaintiff was claiming right in
respect of entire extent of 03 acres 27 guntas purchased by him
from Sri Chikkanna. Therefore, trial Court was not justified in
denying injunction in respect of remaining extent of 35 guntas.
22. On other hand, Sri A.Keshava Bhat, learned counsel for
defendants no.1 to 6 submitted that on 16.08.1977, occupancy
rights in respect of 2 acres 32 guntas in Sy.no.96 was granted in
favour of Sri V.R.Marappa. On 31.03.1980, Form no.10 was issued
to him and his name was mutated in RoRs. However, plaintiff claims
that extent of 1 acre 33 ½ guntas of said survey number was
purchased from son of original owner firstly on 26.10.1993 and
again on 17.08.1994. On 05.01.2018, Sri V.R.Marappa filed
W.P.no.1142/2018 seeking for direction to authorities for issuing
computerized RoR. Said writ petition was disposed of as having
become infructuous after Government Advocate appearing therein
stated on instructions that petitioner's request would be complied.
Thereafter, V.R.Marappa got converted extent of 2.32 acres for
non-agricultural purposes. On 22.11.2019, one Sri T.Maruthi filed
W.P.no.4924/2020 challenging order of Land Tribunal. At time of
passing interim order, this Court was of view that petitioner had no
title over land. Hence, writ petition was dismissed as withdrawn on
16.03.2020. Thereafter on 01.04.2021, O.S.no.747/2021 was filed
and ex-parte interim injunction was obtained.
23. Said order was challenged in W.P.no.8552/2021. At that
stage, Sri T.Maruthi once again filed W.P.no.12272/2021
challenging very same order of Land Tribunal. On 14.09.2021,
W.P.no.12272/2021 was dismissed with costs of Rs.50,000/-.
Thereafter, trial Court passed order impugned herein vacating
ex-parte interim injunction. It was submitted that though present
appeal was filed on 15.11.2021, there is no interim order granted
till date. Thereafter, Sri T.V.Maruthi filed W.P.no.10838/2022
challenging order of Land Tribunal for third time. It was contended
that very order granting occupancy rights to Sri V.R.Marappa on
16.08.1977 was fabricated. Said writ petition was disposed of with
observation that trial Court may examine said issue also in pending
suit.
24. It was submitted that contention about order of Land
Tribunal being fabricated was contrary to pleadings in plaint
wherein plaintiff had admitted about Sri V.R.Marappa having filed
Form no.7 and occupancy rights being granted to him. There were
similar admissions in W.P.no.12272/2021. It was contended that
plaintiff had suppressed several material facts including issuance of
Form no.10 and order of conversion for non-agricultural purposes
and also fact that defendant no.6 had made huge investment and
was in possession of suit properties. It was submitted that while
passing impugned order, trial Court had rightly appreciated all facts
and circumstances and passed well considered order, which did not
call for interference. On above grounds, learned counsel sought for
dismissal of appeal.
25. Heard learned counsel and perused impugned order and
records.
26. From above submissions, there doesn't appear to be
serious dispute that Sy.no.96 originally belonged to Sri Muniyappa
@ Kurlappa and Sri Munibeerappa. While plaintiff claims that said
original owners sold it to Sri Munishamappa @ Motappa and after
his death intestate, his son Sri Chikkanna succeeded to suit
properties and plaintiff purchased suit properties from Sri
Chikkanna under two sale deeds dated 26.10.1993 and 17.08.1994
and further that from said date plaintiff was in possession and
enjoyment of suit properties and his name was mutated in RoRs.;
defendants no.1 to 6 contend that defendant no.1 - Sri
V.R.Marappa was tenant of extent of 02 acres 32 guntas in
Sy.no.96. He filed Form no.7 for grant of occupancy rights before
Land Tribunal. Further, Land Tribunal by order dated 16.08.1977
granted occupancy rights. Thereafter on 13.03.1980, Form no.10
was issued to him. His name was mutated in RoRs. Thereafter on
13.08.2019, defendant no.1 got said land converted for
non-agricultural purposes and on 21.10.2020, defendants no.1 to 5
sold extent of 2.32 acres to defendant no.6 under registered sale
deed. And since then, defendant no.6 was in possession.
27. While passing impugned order, trial Court had observed
that from contentions urged and perusal of records produced by
parties, plaintiff failed to establish prima facie case for grant of
injunction as sought in I.As.no.I and II.
28. Though it refers to plaintiff's contention regarding order
of Land Tribunal being fraudulent, it refers to order of Land
Tribunal, mutation of name of defendant no.1 in RoRs., order of
conversion for non-agricultural purposes and subsequent sale deed
executed by defendants no.1 to 5 in favour of defendant no.6. It
proceeds to turn down plaintiff's contention referring to order of
rejection of plaintiff's writ petition. It observes that plaintiff was re-
agitating his claim over suit properties in suit after dismissal of writ
petition and Civil Court had no jurisdiction to test validity/legality of
order of Land Tribunal as there was express bar of jurisdiction.
29. In view of above circumstances, it observed that there
was limited scope for adjudication and it was not convinced with
submission of plaintiff and also that disputed questions required
trial. It further observes that since defendant no.6 was undertaking
development of land and plaintiff might be aware of development
but not approached Court at earliest, said conduct goes against
prima facie case sought to be established by him. On said
observations, it held plaintiff failed to establish prima facie case. On
said finding, it also held plaintiff to have failed in balance of
convenience and comparative hardship tests. On said reasoning, it
answered point no.4 in favour of defendant no.6.
30. Hence, point that arises for consideration herein is:
"Whether impugned order passed by trial Court on
I.A.s no.I and II filed by plaintiff under Order
XXXIX rules 1 and 2 and I.A. no.III filed by
defendant no.6 under Order XXXIX rule 4 of CPC
calls for interference?"
31. It is settled law that possession is one of important
ingredients of prima facie case while considering application for
temporary injunction. While passing impugned order, though trial
Court observed plaintiff failed to establish prima facie case, it has
not given finding about prima facie possession, especially when
both parties claimed title and to be in possession. From plaint copy
appended to this appeal, it is seen that plaintiff produced 24
documents. Though there is reference to them in general in para-8,
it has not examined them. On other hand, entire reasoning is with
reference to documents produced by defendants.
32. Its conclusion about plaintiff failing to establish prima
facie case in para-12 precedes reasoning which as observed above
is lopsided. Even its observations and finding regarding conduct of
plaintiff would be unsustainable. When defendant no.6 neither
pleaded nor produced material about development activities being
carried on land, it's assumption about plaintiff being aware of same
would be without evidence. Since conduct of plaintiff is one among
two reasons for recording finding on point no.1, entire conclusion
would be rendered perverse and unsustainable. Further, as said
finding forms basis for findings on points no.2 to 4, entire order
would be rendered perverse and untenable.
33. Hon'ble Supreme Court in case of Mohd. Mehtab Khan
v. Khushnuma Ibrahim Khan1, has held that in an appeal against
an order passed by trial Court on application under Order XXXIX
rules 1 and 2 of CPC, appellate Court could not have interfered with
exercise of discretion by learned trial Judge unless such exercise
(2013) 9 SCC 221,
was found to be palpably incorrect or untenable. In view of
conclusion that order of trial Court is untenable, point for
consideration is answered in affirmative.
34. Consequently, following:
ORDER
Appeal is allowed in part.
Impugned order dated 26.10.2021 passed by II Addl. Senior
Civil Judge, Bengaluru on I.A.nos.I/2021 to III/2021 in
O.S.No.747/2021 is set-aside, matter is remanded back to trial
Court to pass orders afresh on said applications, in accordance with
law within a period of four weeks from date of receipt of certified
copy of this order and after hearing contesting parties.
Sd/-
JUDGE
GRD
