Karnataka High Court
Smt Nanjamma vs Sri Venkataramana Reddy on 8 April, 2024
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MFA No. 1334 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO.1334 OF 2016 (CPC)
BETWEEN:
1. SMT. NANJAMMA
SINCE DEAD BY HER LRS
a) L. RAJU
AGED ABOUT 55 YEARS,
b) NAGARATHNAMMA
AGED ABOUT 49 YEARS,
NO.327, 5TH CROSS,
7TH BLOCK, KORAMANGALA,
BENGALURU-560034
c) YESHODA
AGED ABOUT 49 YEARS,
NO.248, RAGHAVANAHALLI,
BENGALURU.
d) L. MUKUNDA
AGED ABOUT 47 YEARS,
Digitally signed
by
MARKONAHALLI e) SHARADHA
RAMU PRIYA
Location: HIGH AGED ABOUT 45 YEARS,
COURT OF RESIDING AT NO.61,
KARNATAKA
20TH CROSS, I BLOCK,
VISHWESWARANAGAR
BEGUR, BENGALURU-68
APPELLANTS (a) AND (d) ARE
RESIDING AT NO.416,
HOSUR ROAD, ADUGODI,
BENGALURU-560030.
...APPELLANTS
(BY SRI. V.V. GUNJAL, ADVOCATE)
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MFA No. 1334 of 2016
AND:
1. SRI. VENKATARAMANA REDDY
S/O. GOVINDAREDDY
AGED ABOUT 48 YEARS,
RESIDING AT NO.297/7,
I MAIN ROAD, 3RD CROSS,
BHUVANESHWARI NAGAR,
AUDUGODI, BENGALURU-560030.
DEAD
VIDE ORDER DATED 26.03.2024 RESPONDENT NO.4
SUBMITTED THAT RESPONDENT NO.1 HAS NO
SUBSISTING INTEREST. HENCE, NO LRS ARE BROUGHT
2. SRI. ANTHONY RAJ
S/O. LATE ANNI MARIYAPPA,
AGED ABOUT 34 YEARS,
RESIDING AT MYLASANDRA VILLAGE
BEGUR HOBLI, BENGALURU-571109.
3. SRI. AMEER JAN SAB
S/O. LATE MASTAN SAB,
AGED ABOUT 65 YEARS,
RESIDING AT NO.35,
BEHIND GOVT. URDU SCHOOL,
NEARBY 4 STROKE CAR GARAGE,
SRV GARDEN, TILAKNAGAR,
JAYANAGAR, BENGALURU-570017.
4. SRI. G. RAMESH REDDY
S/O. GOPAL REDDY
AGED ABOUT 41 YEARS,
RESIDING AT NO.131,
MYLASANDRA, BEGAUR POST,
BENGALURU-571109.
...RESPONDENTS
(BY SRI. C.S. VINOD, ADVOCATE FOR RESPONDENT NO.4;
NOTICE SERVED ON RESPONDENT NOS.2 AND 3;
VIDE ORDER DATED 26.03.2024 RESPONDENT NO.1 IS DECEASED
BRINGING LRS OF DECEASED RESPONDENT NO.1 IS DISPENSED
WITH)
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MFA No. 1334 of 2016
THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) READ WITH
SECTION 151 OF THE CPC, AGAINST THE ORDER DATED 07.12.2015
PASSED ON IA NO.7 AND 8 IN O.S.NO.1094/2008 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, REJECTING IA NO.7 AND 8 FILED UNDER ORDER 39
RULE 1, 2 AND 3 READ WITH SECTIONS 94 AND 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff in
O.S.No.1094/2008 pending consideration before the
Principal Senior Civil Judge, Bengaluru Rural District,
Bengaluru, challenging an order dated 07.12.2015 by
which, applications (I.A.Nos.7 and 8) filed by her were
dismissed.
2. The suit in O.S.No.1094/2008 was filed for the
following reliefs:
"i) Declare that the plaintiff is the absolute
owner in possession of suit Schedule items 1 to 3
properties.
Amended relief "ii" vide order dated
08.09.2022
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ii) May further be pleased to declare that
the Registered Sale Deed dated 04.09.2006
registered as Document No.15107/06 in the office
of Sub-Registrar, Bommanahalli stated to have
been executed by Defendant No.1 in favour of
Defendant No.2 produced herein as Document
No.2 and another registered Sale Deed
dt.11.06.2007 registered as Document
No.625/07-08, in the office of Sub Registrar
Begue, Bangalore executed by Defendant No.2 in
favour of Defendant No.3 which is produced as
Document No.9 are null and void and not binding
on this plaintiff and so also the further
declaration/ cancel/ nullify the notarized General
Power of Attorney dt.07.08.1995 and the
notarized affidavit 07.08.1995 which has been
allegedly stated to have been executed by this
plaintiff in favour of Defendant No.1 are null and
void and not binding on this plaintiff.
ii) May further be pleased to grant
judgment and decree for permanent injunction
against the Defendant Nos.1, 2 and 3 herein
restraining them with interfering with or
obstructing the plaintiff of her lawful possession
and peaceful enjoyment of the Suit Schedule
Items 1 to 3 properties;
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iv) Grant such other reliefs and pass such
other orders including the order as to costs as
this Hon'ble Court deems fit to grant in the
circumstances of the case, in the ends of justice
and equity."
3. The plaintiff claimed that she was the owner of
the suit item Nos.1 to 3 properties. She claimed that the
agricultural land bearing Sy.No.94/28 measuring 35
guntas was purchased from Smt. Chinnamma in terms of a
sale deed dated 09.07.1962. In addition, she had
purchased 07 guntas excluding 02 guntas of kharab land
in Sy.No.94/29 and 04 guntas in Sy.No.94/30 from its
erstwhile owner Sri. Gopalappa in terms of a sale deed
dated 12.11.1962. She claimed that her name was
entered in the revenue records. She claimed that the suit
properties were cultivated by her by employing labourers.
She claimed that she had a son named Sri. Mukunda, who
left the village and as such, the plaintiff was alone and
could not bestow her attention to cultivate the suit
properties. She claimed that her son who was earlier
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employed in Defense Establishment was later employed at
Hindusthan Aeronautical Limited and hence, he could not
personally look after the suit properties. The plaintiff
claimed that the defendant No.1 taking advantage of the
illiteracy of the plaintiff had fabricated a power of attorney
dated 07.08.1995 and also an affidavit, to seem as if she
had executed it and based upon such fraudulent
document, he sold all the suit properties to the defendant
No.2 in terms of a sale deed dated 04.09.2006. Based
upon such sale deed, the defendant No.2, conveyed it to
the defendant No.3 in terms of a sale deed dated
11.06.2007 and later, the defendant No.3 sold it to the
defendant No.4. The plaintiff claimed that she had not
executed any power of attorney and the one propounded
by the defendant No.1 was forged and fabricated. Hence,
she sought for the aforesaid reliefs.
4. During the pendency of the suit the plaintiff
died and her legal representatives were brought on record.
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5. The suit was contested by the defendant No.3
who claimed that he had purchased the suit properties
from the defendant No.2 and that he was in lawful
possession and enjoyment of said properties. Likewise, the
defendant No.4 claimed that he too had purchased a
portion of the suit properties and that he was in
possession of the suit property. He claimed that suit filed
for declaration was barred by the law of limitation and that
the plaintiff had lost possession and therefore, the plaintiff
must have sought for the relief of recovery of possession.
6. Based on these contentions, issues were
framed. Later, legal representatives of plaintiff filed
I.A.No.7 under Order XXXIX Rules 1, 2 & 3 read with
Sections 94 and 151 of Civil Procedure Code for an order
of Temporary Injunction to restrain the defendant No.4
from changing the nature of the suit properties and from
developing it in any manner and also from interfering or
disturbing the plaintiffs lawful possession in the suit
properties. Similarly, another application I.A.No.8 was filed
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under XXXIX Rules 1, 2 & 3 read with Sections 94 and 151
of Civil Procedure Code seeking for an order of injunction
restraining the defendant No.4 from alienating or
encumbering or transferring the suit properties. These
applications were contested by the defendants who
claimed that the plaintiff had executed the power of
attorney, based upon which the defendant No.1 had
brought about various transactions and that the same
were binding upon the deceased plaintiff.
7. The Trial Court after considering the
contentions urged by the parties, rejected both the
applications in terms of the impugned order, where it held
that the suit filed by the plaintiff was fit for a trial to
ascertain whether the plaintiff had executed the power of
attorney or not in favour of the defendant No.1 and
whether the defendant No.1 had sold the properties and
whether the plaintiff had received the sale consideration
which was evidenced by an affidavit. It held that the
defendant No.4 claimed that the defendant No.3 had sold
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item Nos.1 and 2 in his favour in terms of a sale deed
dated 26.12.2013. The defendant No.4 also placed on
record 20 sale deeds which he purportedly executed in
favour of purchasers conveying various sites formed in suit
item Nos.1 and 2. Therefore, it held that since a layout of
residential sites in suit item Nos.1 and 2 were formed and
respective purchasers were placed in possession of the
sites so formed, the balance of convenience was in favour
of the defendant No.4. Consequently, it rejected the
applications in terms of the impugned order.
8. Being aggrieved by the same, the plaintiff has
filed this appeal.
9. The learned counsel for the plaintiff contends
that the suit is filed for substantive relief of declaration
and to set at naught a sale deed executed by the
defendant No.1 in favour of defendant No.2 and the sale
deed executed by the defendant No.2 in favour of
defendant No.3 and the consequent sale deed executed by
the defendant No.3 in favour of defendant No.4. He
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submits that the defendant No.1 had conveyed the suit
properties in favour of defendant No.2 based upon the
power of attorney allegedly executed by the plaintiff and
therefore, it was necessary to ascertain whether such a
power of attorney was executed by the deceased plaintiff
and whether the plaintiff had received any money from the
defendant No.1. He contends that even if the defendant
No.4 has formed sites, status-quo of the properties cannot
be changed, as that would result in rendering the suit
infructuous. He further contends that the defendant No.4
has placed on record 20 sale deeds in respect of the sites
which are allegedly formed in the suit item Nos.1 and 2.
However, there is no record to show that the suit item
Nos.1 and 2 are converted for non-agricultural residential
use. He therefore, contends that there is no material on
record to justify the claim of defendant No.4, that the
nature of the suit properties has been changed and
therefore, no injunction can be granted.
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10. Per contra, the learned counsel for the
defendant No.4 submits that the suit item Nos.1 and 2
were purchased from the defendant No.3 based upon his
representation that he had lawful title in respect of the suit
properties. He contends that the defendant No.4 has
formed a layout of residential sites and he had already
conveyed it to various purchasers and the sale deeds were
placed on record before the Trial Court. He therefore,
contends that passing any order of injunction restraining
the defendants from changing the nature of the suit
properties would affect those bonafide purchasers who had
purchased sites from the defendant No.4. He therefore,
contends that the impugned order passed by the Trial
Court is just and proper. He further contends that as the
defendant No.4 has already alienated the sites formed in
suit item Nos.1 and 2, there can be no order to restrain
the defendants from alienating the suit properties.
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11. I have considered the submissions made by the
learned counsel for the petitioner and learned counsel for
the respondents.
12. The suit is based on assertions that the plaintiff
had not executed a power of attorney in favour of the
defendant No.1 and had not received any money from the
defendant No.1 as consideration for executing such a
power of attorney. As rightly contended by the learned
counsel for the plaintiff, the suit is filed for declaration and
for consequential releifs. He contends that unless the
Court comes to a conclusion regarding the genuinity of the
power of attorney, there can be no alienation or changing
the nature of the suit properties.
13. The defendant No.1 had set up the power of
attorney allegedly executed by the plaintiff in the year
1995. As on the date of the suit, several transactions were
brought about by the defendant No.1 which culminated in
a sale in favour of defendant No.4. It appears that the
defendant No.4 had formed a revenue layout and had
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encumbered sites formed in suit item Nos.1 and 2 in
favour of third party purchasers. Therefore, unless those
purchasers were brought on record, the Court could not
grant any order of injunction restraining the defendants
from changing the nature of the suit schedule properties.
Though it is contended that the plaintiff had not executed
the power of attorney, it is strange that the plaintiff has
laid low and has filed the applications for injunction only in
the year 2014. Therefore, the conduct of the plaintiff does
not entitle her for any injunction to restrain the defendants
from changing the nature of the suit schedule properties,
as the learned counsel for the defendant No.4 has stated
that the layout of residential sites was already formed and
that many sites have been alienated in suit item Nos.1 and
2. Hence, it is not wise to restrain the non-parties to the
suit from changing the nature of the sites formed in suit
item Nos.1 and 2. However, having regard to the nature
of the reliefs sought and in view of the subsequent
developments in the case and in order to protect the
status-quo of the properties, this Court considers it
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appropriate to direct the defendants not to alienate or
encumber or transfer or part with possession of any of the
unencumbered properties in the suit schedule properties.
Any alienation brought about by the defendant Nos.4 in
suit item Nos.1 and 2 shall always be subject to result of
the suit.
14. In that view of the matter, this appeal is
disposed off. The impugned order dated 07.12.2015
passed on I.A. No.8 is set aside and the application is
allowed-in-part. The defendants are restrained from
alienating or encumbering or transferring any portion of
the suit schedule properties which are not alienated as on
date. In so far as the impugned order dated 07.12.2015
passed on I.A. No.7, the same does not warrant
interference, since the defendant No.4 has claimed that
several sites formed in suit items Nos.1 and 2 are
alienated and without arraying the purchasers, it is unwise
to grant any order of injunction to restrain the defendants
from changing the nature of the suit properties.
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15. Since the suit is of the year 2008 and as there
is no impediment for the Trial Court to dispose off the suit
on merits, it is requested to consider expeditious disposal
of the suit in accordance with law and in accordance with
the Karnataka Case Flow Management in Subordinate
Court Rules, 2005.
16. Any observations made herein above, shall not
affect the Trial Court while disposing the suit on merits.
Sd/-
JUDGE
HJ
