Smt. Malar Veni vs Ramamurthy
2023 Latest Caselaw 6396 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF SEPTEMBER, 2023

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A. NO.4144/2023 (CPC)

BETWEEN:

1.   SMT. MALAR VENI,
     W/O J. SHANMUGAM,
     AGED ABOUT 66 YEARS,
     RESIDING AT NO.432 AND 433,
     MANISH NEST APARTMENT,
     7TH CROSS, ITI LAYOUT,
     NAYANDAHALLI,
     BENGALURU-560039.                      ... APPELLANT

  (BY SRI SATISH M. DODDAMANI, SENIOR ADVOCATE FOR
               SRI SAGAR B.B., ADVOCATE)
AND:

1.   RAMAMURTHY,
     AGED ABOUT 58 YEARS,
     R/AT NO.20, 14TH CROSS,
     7TH MAIN, NAYANDAHALLI,
     BENGALURU-560039.                      ... RESPONDENT

       (BY SRI H.KANTH RAJA, SENIOR ADVOCATE FOR
             SRI H.A.MANJUNATHA, ADVOCATE)

      THIS M.F.A. IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 17.04.2023 PASSED ON
I.A.NO.1 AND 2 IN O.S.NO.7098/2022 ON THE FILE OF THE XLII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
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CCH-43, DISMISSING THE I.A.NO.1 AND 2 FILED UNDER ORTHE
FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    31.08.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:


                              JUDGMENT

This appeal is filed praying this Court to set aside the order

passed on I.A.Nos.1 & 2 of 2022 in O.S.No.7098/2022, wherein

rejected the application filed under Order 39 Rule 1 and 2 r/w

Section 151 of CPC seeking an order of injunction restraining the

defendant from interfering or meddling or dispossessing the

plaintiff from the schedule property.

2. The factual matrix of the case of the

plaintiff/appellant before the Trial Court while seeking the relief

of declaration and permanent injunction that the plaintiff has

acquired the schedule property from its previous owner through

the registered sale deed dated 3.5.2003 and she is the absolute

owner in possession and enjoyment of the property bearing

No.13, Khatha No.125 situated at Nayandahalli Village, Kengeri

Hobli, Bangalore South Taluk, presently comes under the

purview of BBMP measuring East to West 30 feet and North to

South 50 feet with two floors RCC building constructed thereon

which is morefully described in the schedule.

3. The revenue documents are also transferred in the

name of the plaintiff in respect of the schedule property and she

had paid property tax to the BBMP authorities till this day. The

plaintiff has obtained trade licence in the schedule property and

also taken connection from the BESCOM and also BWSSB in the

name of the plaintiff in respect of the schedule property. The

plaintiff is uninterrupted possession over the schedule property.

4. The defendant is an utter stranger to the schedule

property and having local political support and goonda elements

and taking advantage of the same, the defendant and his

henchmen came near the suit schedule property and disturbed

the possession of the plaintiff and tried to dispossess the plaintiff

in the suit schedule property illegally and to change the nature

of the schedule property and one such attempt was made by the

defendant and his men on 2.10.2022 and the same was resisted

by the plaintiff along with her family members and timely

intervention of the neighbours and they may come again to

interfere. It is also contended that the plaintiff is a poor lady and

a senior citizen and taking advantage of the same, the defendant

is making all his efforts to put up CCTV Camera and tried to

remove the structure in the suit schedule property and

immediately the plaintiff approached the jurisdictional police and

they also not helped the plaintiff and hence the suit is filed

before the Court.

5. The plaintiff also sought an ad-interim injunction by

filing an applications under Order 39 Rule 1 and 2. I.A.No.1 is

filed for restraining the defendant from interference and I.A.No.2

is filed for not to change nature of the property.

6. The applications are resisted by the defendant by

filing written statement and also filed the memo adopting the

written statement as objections to I.A.Nos.1 and 2. The

defendant in his written statement contended that he is the

absolute owner in possession and enjoyment of the property

measuring 36 guntas. Out of 1 acre 32 guntas in

Sy.No.No.21/1B of Nayandahalli Village, he acquired the same as

per the decree passed in O.S.No.6975/2013 by the XVIII

Additional City Civil Judge, Bangalore. Originally, one Shivanala

@ Shivalinga who is the ancestor of the defendant, purchased 3

acres 34 guntas in Sy.No.21/2 of Nayandahalli Village as per the

Sale Deed dated 28.6.1926 from Thoti Dodddamuniya and

Chikkamuniya. Thereafter, the land measuring 1 acre 11 guntas

was renumberd as Sy.No.21/1A and the extent of land

measuring 2 acres 17 guntas was renumbered as Sy.No.21/1B.

He had two sons by name Dodda Venkatappa and Chikka

Venkatappa who succeeded to his estate after his death. The

said Dodda Venkatappa had three children namely Pillappa,

Thammaiah and Munivenkatappa and Chikka Venkatappa had no

issues and he died on 12.4.1982 leaving behind his two wives by

name Lakshmamma and Sakamma. As such, the said Sakamma

during her life time, adopted the defendant as per adoption deed

dated 26.9.1990. The said Sakamma died on 24.5.2012 leaving

behind the defendant as her only surviving legal heir.

Subsequent to the death of Shivanala @ Shivanaliga, the Khatha

was registered in the name of Dodda Venkatappa and Chikka

Venkatappa and after their death, the land in question was

devolved on their respective legal heirs namely Pillappa,

Thammaiah and Munivenkatappa and Sakamma. In the

meantime, the BDA had issued a Notification on 17.11.1988 and

declaration on 30.11.1990 and another Notification on 8.4.1994

and acquired the land for formation of layout called

'Venkateshwara Layout' and the land in Sy.No.21/1B was

included in the said acquisition proceedings. Subsequent to the

Notification, the land in question was in symbolic possession of

the BDA. Inspite of the same, the defendant's mother Sakamma

continued in possession and enjoyment of the land in

Sy.No.21/1B measuring 36 guntas out of 2 acres 17 guntas. No

award has been passed by the BDA with regard to issuance of

compensation. The defendant and his mother Sakamma have

challenged the said Notification before this Court in

W.P.No.20395/2010 and the legal representatives of

Doddavenkatappa have also challenged the said Notification by

filing W.P.No.39172/2013 and this Court quashed the acquisition

proceedings by holding that, acquisition proceedings initiated is

deemed to have lapsed by virtue of Section 27 of the BDA Act

and the lands would consequently revert to the land owners. The

BDA has not challenged the said orders and the same has

reached its finality. As the defendant is the only surviving legal

heir of Sakamma, the Khatha was transferred into his name as

per MR No.H3/2012-13.

7. It is also contended that, subsequently the legal

heirs of deceased Pillappa, Thammaiah and Munivenkatappa

namely Saraswathi and others have filed a suit against

defendant for the relief of partition in respect of land in

Sy.No.21/1A and Sy.No.21/1B in O.S.No.6975/2013 before the

XVIII Additional City Civil Judge, Bangalore and the matter has

been settled in the course of mediation and entered into a

compromise and the Court has drawn a final decree in the said

suit and the defendant was allotted the land measuring 36

guntas out of 1 acre 32 guntas in Sy.No.21/1B of Nayandahalli

Village. The said property is an agricultural land and at no point

of time it has been converted and no layout has been formed

either by Shivanala @ Shivanaliga or by his legal heirs.

8. The plaintiff filed a suit in O.S.No.2633/2016 falsely

contending that she is the absolute owner of house property

bearing Site No.13, Khatha No.125 of Nayandahalli village,

measuring East to West 30 feet and North to South 50 feet. But,

in this suit as well as in the earlier suit, she has not disclosed the

flow of title acquired by her. She is concealing the same as her

alleged vendors not at all having any valid right, title over the

schedule property to transfer the title. But in her evidence in the

earlier suit, she contended that she purchased the schedule

property under a registered sale deed dated 3.5.2003 from

Bhagyamma represented by her GPA Holder J.Shanmugam and

the said Bhagyamma has sold the schedule property by

executing registered GPA dated 16.01.1997 in favour of

J.Shanmugm for a consideration of Rs.2,50,000/- and she

executed an affidavit in his favour. Further, the plaintiff falsely

contended in her evidence in O.S.No.2633/2016 that originally

suit property belonged to one Shaik Hyder and the said Shaik

Hyder sold the suit property in favour of said Bhagyamma under

a registered sale deed dated 13.02.1992 and after perusal of the

said sale deed, it is found that the said Shaik Hyder has allegedly

executed sale deed in favour of Bhagyamma by contending that

the property No.13, Khatha No.125 situated within the limits of

Gramatana is the ancestral property of one Munivenkatappa,

Pillappa and Muniyellappa who are the sons of Dodda

Venkatappa, who have allegedly executed GPA in his favour. The

said Munivenkatappa or others have no authority to execute

either GPA or sale deeds in favour of any third parties like Shaik

Hyder or anybody. As on the date of alleged transaction, the said

Munivenkatappa and others were not at all having exclusive

right, title or interest over the land in question. The said

transaction made by Munivenkatappa and others without the

consent of any other co-parceners including the defendant's

mother Sakamma, which is not binding on the other joint family

members. The plaintiff has not derived any valid right, title or

interest over the suit schedule property. The children of

Doddavenkatappa have no individual rights to create any

encumbrance over the land in question exclusively either in

favour of Shaik Hyder or anybody as the land in question was

the joint family property or the defendant's family at the time of

alleged transactions.

9. It is also contended that the plaintiff has not claimed

her property is the part and parcel of Sy.No.21/1B of

Nayandahalli Village and even in the suit also the plaintiff has

not claimed that her property is part of Sy.No.21/1B. The

plaintiff has not produced any documents to show that the

property which has been claimed by the plaintiff is a portion of

Sy.No.21/1B. The plaintiff has claimed that she purchased site

No.13 from Bhagyamma through her GPA holder Shanmugam.

As per the recitals of the said sale deed, the Vendor Bhagyamma

purchased the schedule property through a registered sale deed

dated 13.02.1992 from Munivenkatappa and others through GPA

Holder Shaik Hyder. As per recitals of the said document, the

said Shaik Hyder being the attorney holder of Munivenkatappa

and others sold site No.13 in favour of said Bhagyamma. But in

the said sale deed no reference is forthcoming with regard to

Sy.No.21/1B and she has not produced the alleged GPA claiming

to be executed by said Munivenkatappa and others in favour of

Shaik Hyder. By the time of execution of alleged documents, the

property was acquired by BDA for formation of 'Venkateshwara

Layout' and even if it is assumed that the said Munivenkatappa

and others have executed alleged GPA, they have no right to

execute the same, and as possession of the same vested with

the BDA, the said Shaik Hyder not at all obtained delivery of

possession from their executants of alleged GPA. Though the

plaintiff has produced the Khatha and other revenue records in

respect of site No.13, but those documents also not having any

reference with respect to Sy.No.21/1B and hence, prayed the

Court to reject the applications and plaintiff has not been in

possession of the suit schedule property.

10. The Trial Court having considered the averments of

the plaint and applications and the statement of objections

formulated the points, whether the plaintiff has made out a

prima facie case, balance of convenience and irreparable loss

and answered the said points as negative in coming to the

conclusion that the plaintiff is claiming that originally schedule

property belong to Shaik Hyder and he sold the same in favour

of Bhagyamma under an unregistered sale agreement dated

13.2.1992 and among the said unregistered agreement has not

pass any title to Bhagyamma. Whatever the alleged sale deed

said to be executed by Bhagyamma in favour of J.Shanmugam

also not passed any title to him. The alleged sale deed executed

by J.Shanmugam in favour of the plaintiff in respect of the

schedule property has not passed title to the plaintiff. Whatever

the documents relied by the plaintiff i.e. sale deed dated

3.5.2003 said to be executed by Shanmugam, the husband of

the plaintiff as GPA holder of Bhagyamma and other documents,

sale agreement and power of attorney said to be executed by

Bhagyamma in favour of Shanmugam, they are all disputed

documents. When the title itself is not passed to the plaintiff

based on the documents, question of possession of the plaintiff

does not arise at all.

11. The suit filed by the plaintiff against defendant for

injunction with respect to the schedule property has been

dismissed and held that there is a cloud of title with respect to

the property of the plaintiff, the plaintiff has to prove the title.

When such being the fact, the plaintiff has not established the

prima facie case at this stage and having taken note of this

aspect into consideration, since the same is contended by the

defendant disputing the documents, the Trial Court also comes

to the conclusion that when the original property was acquired

by BDA and the defendant has challenged the same and the writ

petition was also allowed and plaintiff is claiming ownership

based on the sale deed said to be executed by her husband and

when there is cloud with respect to the title of the property, it is

the plaintiff to establish the same by producing cogent evidence.

Since the suit filed by the defendant for injunction has been

dismissed, at this stage the plaintiff has not at all made out a

prima facie case for grant of temporary injunction and whatever

the documents relied upon by the plaintiff does not establish the

title at this stage and rejected the application. Hence, the

present appeal is filed before this Court.

12. The main contention of the counsel appearing for the

appellant in his argument that the Trial Court committed an

error in dismissing the application and fails to take note of the

fact that the plaintiff has produced the voluminous document

and also in O.S.No.6975/2013 the respondent in the above

mentioned appeal was arrayed as defendant. During the course

of his cross examination, he has admitted that the appellant is in

possession and occupation of residential building, further he

states that, property of the plaintiff in the said suit is entirely

different from his property, when this is the tenor of the

admission by the respondent in the first round of litigation, now

in the written statement it is contended that, claim of the

appellant in the present suit is that, plaintiff is claiming property

belonging to him, the defendant cannot make such stand, now

he has estopped from taking such a stand. Counsel also have

vehemently contend that, it is well settled law that at the stage

of deciding of an application for temporary injunction, the Trial

Court need not hold a mini trial to ascertain title as contended by

the rival parties and to restrict the protection from

dispossession, as such, all that was to be considered by the Trial

Court, whether the plaintiff is likely to be dispossessed from the

suit schedule property and the same is not taken note of by the

Trial Court while passing such an impugned order and hence the

very impugned order requires interference.

13. The counsel also while arguing the matter, relied

upon list of documents i.e. sale deed dated 3.5.2003 and also

relied upon the sale deed dated 13.2.1992 executed in favour of

Bhagyamma and also relied upon the sale deed dated 16.1.1997

which was executed in favour of J.Shanmugam by Smt.

Bhagyamma and also produced the affidavit executed by

Smt.Bhagyamma and also the documents issued by Bengaluru

Mahanagara Palike and also the documents of BBMP and tax paid

receipts and also produced trade licence certificate and copy of

the FIR, BWSSB letter and layout plan and photographs and also

the earlier judgment passed in O.S.No.2633/2016 and counsel

brought to notice of this Court that, in the earlier suit, the Trial

Court comes to the conclusion that the plaintiff is in possession

and enjoyment of suit schedule property as on the date of the

suit and only contend that the suit was dismissed on the ground

that there is a cloud in respect of the title of the properties and

brought to notice of this Court paragraph No.31 of the judgment.

14. Per contra, the counsel appearing for the respondent

in his argument vehemently contend that there is a dispute with

regard to the identity of the property. The counsel would

vehemently contend that the BDA has acquired the property in

the year 1988 itself i.e. Sy.No.21/1B and subsequently, the

family members have filed the suit and in terms of the said suit

and compromise, 36 guntas of land was allotted to the defendant

and the defendant had challenged the very acquisition before

this Court and the same was allowed and property vests with the

defendant. The counsel would vehemently contend that,

according to the plaintiff he has purchased the property in 2003

and the same is also a vacant site in terms of the sale deed

which is produced before the Court i.e. site No.13 and nothing is

stated with regard to the construction of the building and no

plan, no permission and completion certification for having

constructed the building is produced before the Court to show

the material that subsequent to purchase also they have

constructed the building. The counsel would vehemently contend

that, the defendant in order to prove the fact that he had

constructed the building and building is in existence, produced

the photographs and also produced the electricity bill for

payment of electricity charges and also produced the FIR copy as

document No.13 and also the letter issued by the Police. The

counsel also would vehemently contend that the rental

agreement is also produced before the Court that defendant has

constructed the building and let out the premises and rent

agreement discloses in respect of the site No.1, Sy.No.21/1B and

also the shop No.1 and also other rental agreement in respect of

shop Nos.1 and 2 and it clearly discloses that defendant is in

possession of the property and also produced the copy of the

judgment, pleadings and earlier suit between the parties as well

as the suit for partition and other documents and counsel also

vehemently contend that in the plaint, plaintiff has suppressed

the fact that earlier suit has been dismissed or not and no such

pleading is made in the plaint and hence it is clear that by

suppressing the earlier proceedings has filed the suit for the

relief of declaration and injunction and tried to obtain an order of

injunction and plaintiff has not approached the Court with clean

hand. The counsel would also vehemently contend that,

defendant has produced the electricity bill and contend that the

document clearly discloses that defendant is in possession of the

property.

15. The counsel relied upon the judgment reported in

1968(1) page 552 in the case of Rangamma Vs. Krishnappa

and brought to notice of this Court page No.556, wherein an

observation is made that, if the argument of the appellant in this

behalf is acceptable, it would follow that any owner of property

can take the law into his own hands and secure possession by

resorting to force, stratagem or trick. Such a situation would also

imply that a landlord or an owner of an immoveable property

would be immune to action for trespass, which indeed would be

anomalous.

16. The counsel also relied upon the judgment reported

in AIR 1960 SC 1156 in the case of The Printers (Mysore)

Private Ltd. Vs. Pothan Joseph and brought to notice of this

Court paragraph No.9, wherein an observation is made that,

where the discretion vested in the Court under Section 34 has

been exercised by the Trial Court, the Appellate Court should be

slow to interfere with the exercise of the said discretion.

17. The counsel also relied upon the judgment reported

in I.L.R. 1989 KAR 1701 in the case of Sri.Gowrishankara

Swamigalu Vs. Sri.Siddhaganga Mutt and contend that, this

Court in elaborately discussed while exercising the discretion

while granting an order of injunction under Order 39 Rule 1 and

2 and these judgments are aptly applicable to the case on hand

and it does not requires any interference.

18. In reply to the arguments of the respondent's

counsel, the appellant counsel would vehemently contend that

the suit is filed for the relief of comprehensive suit, since earlier

suit was dismissed.

19. Having heard the appellant's counsel and also the

counsel for the respondent, the points that would arise for

consideration of this Court are:

i) Whether the Trial Court has committed an error in dismissing the applications filed under Order 39 Rule 1 and 2 i.e. I.A.Nos.1 and 2 and whether it requires interference?

ii) What order?

20. Having heard the respective counsel and considering

the pleadings of both the parties and also considering the prayer

in the suit, schedule property bearing No.13, Khatha No.125

situated at Nayandahalli, Kengeri Hobli, Bangalore South Taluk,

presently comes under the purview of BBMP, measuring East to

West 30 feet, North to South 50 feet with two storied RCC

building constructed thereon and the sale deed which is

produced before this Court, under which the plaintiff is claiming

the title wherein schedule is mentioned only site No.13. Nowhere

it is mentioned that there is an RCC building, but only it is

mentioned as together with 1 square of AC sheet roofed

building. But now claiming that it consists of RCC building and in

order to substantiate that defendant had constructed the

building as rightly contended by the counsel appearing for the

respondent that, no document of plan, permission obtained from

the concerned authority for construction of the building are

produced before the Court. No doubt the plaintiff has produced

the documents before the Court with regard to the title of the

year 1992 and 1997 sale deeds and also the Khatha certificate

and all in respect of property No.13 and on the other hand it is

the contention of the defendant that property originally belongs

to the ancestors and the property was acquired by the BDA and

the same was challenged by the defendant by filing writ petitions

before this Court and the same are allowed and the copy of the

order passed by this Court also produced along with the list of

documents produced by the defendant. In order to identify the

property is concerned, there is a dispute and no doubt earlier

suit was filed for the relief of bare injunction wherein an

observation is made with regard to that the plaintiff is in

possession while answering the point No.1, wherein also

property is described as site No.13 and the said suit was filed in

the year 2016 and the same was dismissed and no dispute to

that effect and also the Court while dismissing made an

observation that there is a cloud on the title. Here also there is a

cloud on the title and no doubt a comprehensive suit is filed

before this Court. But in the present suit, the plaintiff has not

stated anything about the earlier suit, but only sought for the

relief of declaration by stating facts of the case, description of

the property and the same is a residential building and when the

residential building was constructed has not been pleaded in the

plaint. But only claims that plaintiff is the absolute owner in

possession and enjoyment of the property and I have already

pointed out that the respondent counsel brought to notice of this

Court that when the property was purchased in 2003 it is a site

and no document of having constructed the building is placed

before the Court. On the other hand, the counsel for the

respondent also produced two documents contending that an

attempt is made to interfere with the property and photographs

also produced as document No.1 i.e. nine photographs and also

the FIR dated 24.8.2023, a complaint is given by the tenant who

is in occupation of the premises. The FIR is also registered on

24.8.2023 and also produced the electricity bill and photograph

also produced before the Court that the defendant is in

occupation of the property. Having taken note of these

documents and also there is a dispute with regard to the very

identity of the property and defendant claims that it was an

agricultural land when the property was acquired by the BDA and

the same was challenged and this Court also allowed the writ

petitions and quashed the very proceedings initiated by the BDA.

The BDA initiated the proceedings in the year 1988 and no steps

was taken to complete the acquisition proceedings and writ

petition was also filed in 2010 and the same was allowed and

now the defendant claims that the property vests with the

defendant and defendant particularly claims that he is in

possession in respect of Sy.No.21/1B to the extent of 36 guntas

which had been allotted in the partition suit filed by the family

members. When such identity of the property is disputed and

plaintiff has to prove in which survey number site No.13 has

been carved out and no such material is placed before this Court

with regard to the title is concerned and they claimed the title

through one Bhagyamma and in turn Bhagyamma sold the same

and thereafter the vendor of the plaintiff had sold the property in

the year 2003. There is a clear dispute with regard to the

identity of the property and the plaintiff also produced some of

the documents with regard to the title is concerned and

defendant also placed the document that originally property

belongs to their ancestors and there was a partition in the family

and they are in possession of the property by constructing the

building and also produced the rental agreement as well as the

electricity bill. When such being the case, even the very

contention of the appellant's counsel that the Court can direct

both the parties to maintain status quo. When the very

possession and identity of the property is in dispute, question of

passing an order of status quo does not arise and hence, I do

not find any error committed by the Trial Court in rejecting the

applications and hence no merit to reverse the finding of the

Trial Court to allow the applications filed under Order 39 rule 1

and 2. The matter requires full fledged trial for identification of

the very property claimed by the plaintiff as well as the

defendant and no prima facie case is made out and hence, I do

not find any ground to interfere with the findings of the Trial

Court and Trial Court rightly comes to the conclusion that the

plaintiff has not made out a prima facie case and no balance of

convenience and irreparable loss in favour of the plaintiff. When

such being the case, as rightly held by the Apex Court that the

Appellate Court must be slow in reversing the finding unless any

perversity is found in the order impugned and hence, I do not

find such perversity in appreciating the material on record and

hence, no ground to set aside the order and hence I answer the

point in negative.

21. In view of the discussions made above, I pass the

following:

ORDER

Appeal is dismissed.

Sd/-

JUDGE

AP