Karnataka High Court
Sri M Devaraja vs Sri Lakshmamma on 9 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.13/2024 (CPC)
BETWEEN:
1. SRI M. DEVARAJA
S/O SRI. MUNIANJINAPPA
AGED ABOUT 50 YEARS
R/AT CHOKKANAHALLI VILLAGE
JAKKUR POST, YELAHANKA HOBLI
BANGALORE-560 064. ... APPELLANT
(BY SRI VIJAYASHEKARA GOWDA V., ADVOCATE)
AND:
1. SRI LAKSHMAMMA
AGED ABOUT 53 YEARS
D/O SRI MUNIANJINAPPA
R/AT NO.145,
NEAR GANGAMMA TEMPLE
KARIYANAPALYA
NEAR HENNUR MAIN ROAD,
BANGALORE-560 084
2. SRI. MUNIANJINAPPA
AGED ABOUT 81 YEARS
S/O LATE MUNIRAMAIAH
3. SRI. MARIYAPPA
AGED ABOUT 52 YEARS
S/O SRI. MUNIANJINAPPA
2
4. SMT. GEETHA
AGED ABOUT 41 YEARS
W/OLATE KANTHARAJU
5. SRI. MUNIKRISHNA
AGED ABOUT 46 YEARS
S/O SRI. MUNIANJINAPPA
RESPONDENTS NO.2 TO 5 ARE
R/AT CHOKKANAHALLI VILLAGE
JAKKUR POST
YELAHANKA HOBLI,
BANGALORE-560 064.
SRI. RAMAIAH
AGED ABOUT 85 YEARS
S/O SRI MUNIRAMAIAH
SINCE DEAD ABOUR 6 YEARS AGO
PLAINTIF HAS NOT REPORTED AND
NOT AMENDED THE PLAINT AND ALSO
NOT BROUGH HIS OTHER LRS ON RECORD
6. SRI. NARAYANASWAMY
65 YEARS
S/O LATE RAMAIAH
7. SRI. A.C SRINIVAS
AGED ABOUT 55 YEARS
S/O LATE A.M. CHINNAVENKATAIAH
RESPONDENTS 7 AND 8 ARE
R/AT CHOKKANAHALLI VILLAGE
JAKKUR POST, YELAHANKA HOBLI,
BANGALORE-560 064.
8. SRI. GUNASHEKAR M.,
AGED ABOUT 67 YEARS
S/O ALTE MASILAMANI
3
R/AT BYCHAPURA VILLAGE
ANNESHWARA POST
DEVANAHALLI TALUK
BANGALORE DISTRICT.
9. SMT. NEETHA C PATEL
AGED ABOUT 59 YEARS
D/OSRI. C.B. PATEL
R/AT NO.74/B
20TH B MAIN ROAD,
1ST R BLOCK
RAJAJINAGAR
BANGALORE-560 010.
10 . SMT. KANNAMA RAVINDRAN
AGED ABOUT 59 YEARS
D/O SRI. R.S. RAMASWAMY
R./O ARAVIND EYE HOSPITAL
ABHICHEKPAKKAM ROAD,
PONDICHERRY
PIN 605007
11 . SRI.A DAM@ IBRAHIMM
AGED ABOUT 65 YEARS
S/O SRI. MOHAMMED HUSSAIN
R/AT DEVANAHALLI VILLAGE
NAGAPUR POST
VIA MAYASANDRA
TURUVEKEREN TALUK
DABBEGHATTA HOBLI,
TUMKUR DISTRICT-572227
12 . SMT. PANBAI
AGED ABOUT 86 YEARS
W/O LATE HANSARAJ CHHABBIYA
R/AT NO.34, SANDHAL ROAD,
METTUPATTY, DINDIGAL 2
TAMILNADU STATE-624001
4
13 . SRI. PREMJI KARSHAN PATEL
AGED ABOUT 70 YEARS
S/O SRI. K.G. CHHABBIYA
R/AT NO.58/1, T. DASARAHALLI
BANGALORE-560 057.
14 . THE COMMISSIOENR
BANGALORE DEVELOPMENT AUTHORITY
NO.14, T. CHOWDAIAH ROAD,
KUMARAPARK WEST
BENGALURU-560 020.
15 . THE LAND ACQUISITION OFFICER
(PERIPHERAL RING ROAD)
BENGALURU DEVELOPMENT AUTHORITY
NO.14, T. CHOWDAIAH ROAD,
KUMARAPARK WEST
BENGALURU-560 020
... RESPONDENTS
(BY SMT. SRUTI CHAGANTI, ADVOCATE FOR
SRI SHEKHAR BADIGER, ADVOCATE FOR C/R1
VIDE ORDER DATED 11.1.2021,
R2 TO R15 NOTICE DISPENSED WITH)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF
THE CPC, AGAINST THE ORDER DATED 21.12.2023 PASSED ON
IN O.S.NO.523/2016 ON THE FILE OF THE VII ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, BENGALURU RURAL DISTRICT,
BENGALURU, ALLOWING IA FILED UNDER ORDER 39 RULE 1
AND 2 OF CPC FILED BY THE PLAINTIFF AGAINST DEFENDANTS
NO.1, 2, 4 AND 5.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
5
JUDGMENT
1. Heard the learned counsel for the appellant and
also the counsel appearing for the respondents.
2. The factual matrix of case of plaintiff while
seeking the relief of partition and share in respect of suit
schedule properties, it is contended that on 06.09.1958 at
earliest point of time on the lands in Sy.No.31/2 and other
properties have been acquired by one Muniramaiah, the
propositus of the plaintiff and defendant Nos.1 to 5 under
Inam Abolition Act in case No.9/1957-58 dated 06.09.1958
and issued an endorsement in favour of Muniramaiah on
23.01.1959. It is also contended that the property was sold
by six sons of Muniramaiah in favour of one Khatija Bi
under a registered sale deed dated 15.10.1984. It is also
stated that on 24.04.1989 the very same khatija Bi in turn
sold the same in favour of Jaibunnissa under a registered
sale deed dated 24.04.1989. It is also stated that the
property was restored back to the family and BDA also
acquired the property by issuing the preliminary and final
notification. But, possession has not taken. The plaintiff
while seeking the relief of partition and separate possession
in respect of the suit properties including item No.2 of the
suit schedule property which is the subject matter of I.A
filed under Order 39 Rule 1 and 2 of CPC wherein a relief is
sought against the defendant Nos.1, 2, 4 and 5 to maintain
status quo. In support of the application, the averments
made in the plaint is also re-iterated contending that the
plaintiff is entitled for her legitimate share and for
declaration of partition deed and sale deeds are not binding
on her and for permanent injunction. The present
application was filed when the case was set out for trial. In
the affidavit it is sworn to that the suit schedule property is
ancestral property. The defendant Nos.1 to 5 are wrongfully
trying to deny her right and also contended that the suit
schedule item Nos.2 property is under acquisition by
defendant Nos.15 and 16 but they have not yet taken
possession. The plaintiff has also filed I.A under Order 41
Rule 1 of CPC seeking for appointment of receiver to collect
the rents generated from 11 shop premises in item No.2
which the defendant Nos.1 to 5 are unlawfully collecting the
entire rent and relief is sought to deposit their rent before
the Court.
3. It is also contended that in the last few days, the
defendants have started raising construction in the item
No.2 of the schedule properties in order to defeat the right
of the plaintiff. The plaintiff made complaint before the
jurisdiction police but they have refused to take any action.
The defendant Nos.1 to 5 are engaged in abuse of process
of law, if they have continued to allow to make construction
it would defeat the right of the plaintiff. In support of her
claim, she has also filed a copy of the police complaint,
copy of photographs, copy of acknowledgment, copy of
endorsement issued by the police and copy of RTC extract
in respect of item No.2 of the suit schedule property. The
defendant No.4 has filed objections to the said application
and defendant Nos.10 and 11 have adopted the said
objections. It is contended that the very suit itself is not
maintainable and hence, the relief sought in the application
cannot be granted. It is also contended that six sons of late
Muniramaiah have already sold the property in favour of
khatija Bi and khatija Bi inturn sold the property in favour
of Jaibunnissa. It is also contended that the item No.2
property is acquired to form peripheral ring road vide
notification in the year 2007. The BDA is the owner of the
said property. Now, the plaintiff cannot seek for any relief
and plaintiff has suppressed the facts and seeking an
interim relief and plaintiff is not entitled for any temporary
injunction as sought.
4. The Trial Court having considered the factual
aspect of the case and also the averments made in the
plaint as well as the contents of the affidavit filed in support
of the application and also the statement of objections
taken note of the fact that admittedly as on the date of the
filing of the suit itself, the BDA has acquired the suit
schedule property issuing notification but they have taken
the possession of item No.2 of the suit schedule property.
The Court has also taken note of fact that there were some
sheds in schedule property and defendants are taking rents
from those sheds. An application is also filed under Order
40 Rule 1 of CPC. It is also not in dispute that the
Jaibunnissa has filed an application for impleading. Item
No.2 of the suit schedule property measuring 1 acre 13
guntas and RTC of the year 2023-24 reveals the names of
defendant Nos.4 and 5 along with Nagesh and Ramesh sons
of late Laxmaiah.
5. The Court also taken note of the fact that
possession of item No.2 has not yet come in the hands of
BDA. The defendant Nos.1 to 5 have also admitted that
they have put up some sheds in the acquired property
taking chance but not on their own right. The Court also
taken note of the very averments made by the plaintiff and
defendant, an observation is made that there are chances
for defendant seeking for equity in their favour at the time
of disbursement of share of compensation from the BDA if
the defendant Nos.1, 2, 4 and 5 are not restrained from
putting up the constructions over item No.2 of the suit
schedule property. Hence, passed an order of status quo as
sought by the plaintiff. Being aggrieved by the status quo
order, the present appeal is filed.
6. The main contention of the appellant's counsel in
his argument that it is not in dispute that the property was
granted in favour of Muniramaiah and also it is contended
that the property was sold by his six sons in the year 1984
in favour of Khatija Bi and also in turn she has sold the
property on 24.04.1989 in favour of Jaibunnissa. The said
Jaibunnissa has also made an application to come on
record. The counsel also would contend that plaintiff's sister
has not been made as party and unless all parties made as
parties, the plaintiff cannot seek for the relief of partition.
The counsel also would submits that acquisition of property
by the BDA in the year 2007 for the formation of peripheral
ring road is not in dispute. The counsel would vehemently
contend that based on the M.R only, the plaintiff is claiming
the share, but the plaintiff is not the owner of the property.
7. The counsel in support of his argument he relied
upon the judgment reported in ILR 2010 KAR 3411 in
case of M.N.Kaveramma and another V/s The State of
Karnataka and others wherein division bench held that the
practice of granting status quo order creates more
confusion and problems and the same is ambiguous and
obnoxious orders which creates more confusion and
problems for the litigants than solving their problem or
resolving their dispute.
8. The counsel also relied upon the judgment
reported in ILR 2018 KAR 4086 in case of
Smt.Jayamma and others V/s Sri.Gangaswamy and
others wherein this Court held that whenever a party
putforth a request for status quo order, it is very much
necessary that such party should appraise the Court of the
situation or circumstances necessitating an order of status
quo to be passed.
9. The counsel also relied upon the judgment
reported in (2013) 3 Supreme Court Cases 66 in case
of Commissioner, Bangalore Development Authority
and another V/s Brijesh Reddy and another wherein
this Court held that maintainability of suit in civil Court
when schedule lands acquired under land acquisition
proceedings.
10. The counsel also relied upon the judgment
reported in ILR 2017 KAR 1319 in case of The
Bangalore Development Authority V/s Sri
Bhagavandas Patel wherein this Court held that public
documents relates to acquisition proceedings, preliminary
and final notification etc., in respect of the suit schedule
property and held that the suit is not maintainable and civil
Court has no jurisdiction to entertain the suit under Section
9 of CPC.
11. The counsel also relied upon the judgment
reported in (2001) 3 Supreme Court Cases 68 in case
of Ritona Consultancy Pvt. Ltd., and others V/s Lohia
Jute Press and others wherein this Court held that an
interlocutory order made by way of aid to the proper
adjudication of the claims and disputes arising in and not
made beyond the scope of the suit or against the parties
who are not before the Court. That neither excessive
conservatism or traditional technical approach not
overzealous activist approach is conducive to advancement
of justice.
12. Per Contra, the counsel appearing for the
respondent would contend that the Trial Court considering
the material on record in paragraph Nos.11 to 16 discussed
in detail. The counsel also produced the documents along
with memo dated 18.12.2023 and an application filed under
Order 23 Rule 1 and 2 of CPC and also photographs
showing current position in item No.2 of the suit schedule
property. The counsel would vehemently contend that when
there is a dispute and parties are making their claim, the
order of status quo will help all. If property is restored to
plaintiff and defendants and when the property is restored,
each one have got the right i.e., plaintiff and defendant
Nos.1 to 5. The Trial Court passed reasoned order and
citations which have been relied upon are not applicable to
the facts of the case.
13. In reply to the arguments of the counsel for
respondents, the counsel for appellant would submits that
rightless claim made by the plaintiff cannot be granted and
plaintiff has no right in respect of the suit schedule
property. Hence, the relief of status quo granted by the
Trial Court is not correct.
14. Having heard the appellant's counsel and also
the counsel appearing for the respondents, the point that
would arise for the consideration of this Court are:
1) Whether the Trial Court committed an
error in granting an order of status quo in favour
of the plaintiff and whether it requires
interference?
2) What Order?
15. Having heard the appellant's counsel and also
the counsel for respondents and also in keeping the
contentions urged in the appeal, this Court has to consider
whether Trial Court has committed an error in passing an
order of status quo. This Court would like to refer the
factual matrix of the case that it is the contention of the
plaintiff that the plaintiff has got the share in the suit
schedule property and the prayer is also made in respect of
item No.2 of the suit schedule property contending that the
said property has been acquired by one Muniramaiah, it is
claim that he is the propositus and also pleadings discloses
that there was a sale in the year 1984 by the sons of the
original grantee in favour of one Khatija Bi and inturn the
said Khatija Bi sold the property in favour of Jaibunnisa in
the year 1989. It is also not in dispute that the said
Jaibunnisa has also filed an application to make her as
defendant No.17, the same is pending for consideration. It
is also important to note that an application is filed under
Order 40 Rule 1 for collection of rent and the same is also
pending. The main contention of the plaintiff that the
property belongs to her grand father and she is having right
in respect of the suit schedule property. On the other hand
it is the contention of the defendant No.4 that the property
was sold and the same has been exchanged between two
hands.
16. Having perused the pleadings, it is also clear
that a petition is filed for restoration of the property under
the PTCL act and Assistant Commissioner has passed an
order invoking PTCL act and restored the property. It is also
a admitted fact that item No.2 of the suit schedule property
for which status quo is sought, BDA has acquired the same
by issuing both preliminary and final notification. But, it is
the contention of the plaintiff that though notification is
issued, possession has not been taken and defendant No.4
has constructed some of the sheds and let out the same
and collecting the rent, the same is not disputed by the
defendant also.
17. It is important to note that RTC is also produced
for the year 2023-24 and item No.2 of the suit schedule
property measuring 1 acre 13 guntas reveals the name of
defendant No.3 and others. Hence, the Court has to take
note of the said fact into consideration. The Trial Court
taken note of the said fact into consideration. Since it is the
claim that property is still in the possession of the
defendants. The respondents have also produced some
photographs for having taken note of the same work
undertaken by the defendants and also complaint was given
before the police inspite of the order of status quo, the
same is violated. In this regard an application is also filed
under Order 39 Rule 2(a) of CPC for violation of the order
passed by the Trial Court, the same has to be considered by
the Trial Court.
18. Having perused the material available on record
and when there is dispute with regard to the defendant
No.1 claiming that it is the self acquired property, he
invested the money for the restoration of the property, the
same has to be considered during the trial. The restoration
is also in terms of the order of Assistant Commissioner in
respect of the family. When such being the case, even
though notification was issued by the BDA, when the
possession is vest with the plaintiff and defendants and
relief is also sought for not to put up any construction. The
Trial Court also taken note of the fact that defendant Nos.1,
2, 4 and 5 at one instance say that plaintiff has no right
over the item No.2 of suit schedule property and at other
instance says that sons of late Muniramiah have sold the
said land to Khatija Bi and the said Khatija Bi inturn sold
the property in favour of Jaibunnisa. The fact that in PTCL
act proceedings initiated by the Assistant Commissioner,
the respondents are the said Khatija Bi as well as
Jaibunnisa. Both of them have suffered an order of
restoration of the property. When such being the case,
when the material clearly discloses that defendants have
put up shed in respect of item No.2 of suit schedule
property and continued to put up the same, it will leads to
multiplicity of proceedings also. It is also not in dispute that
BDA which is arrayed as defendant Nos.15 and 16 in the
very suit and they have not placed any documents for
having taken the possession, the same is also considered
by the Trial Court while granting the relief of status quo. If
possession has been taken and handed over to the BDA,
then consequent would be different and admittedly
possession with the parties of the suit. Hence, the Trial
Court taking into note of the said fact into consideration
rightly passed an order to maintain status quo. The Trial
Court in detail discussed the consequences that if no order
has been passed, there are chances of claiming
compensation based on the construction made in respect of
item No.2 of suit schedule property by the defendant Nos.1,
2, 4 and 5. Even if the award has been passed and
possession is taken, the said factors also would leads to
right of disbursement of compensation amount based on
building if construction is permitted. There are chances of
defendant seeking for equity, the same is also considered
by the Trial Court while exercising the discretion in directing
the parties to maintain status quo.
19. Having perused the operative portion of the
order also, both plaintiff and defendant Nos.1 to 5 are
directed to maintain status quo in respect of item No.2 of
suit schedule property. The Trial Court passed reasoned
order considering the pleadings of plaintiffs and also the
defendants. Hence, I do not find any error committed by
the Trial Court in passing an order of status quo which has
been sought by the plaintiff and if it is not granted there is
chances of altering the nature of the property. Hence, no
merit in the present appeal.
20. No doubt the counsel for appellant has relied
upon the citations which have been discussed with regard
to the passing of an order of status quo. No doubt this
Court held that passing of an order of status quo is an
ambiguity and order of status quo create more confusion
and problem. But, in the case on hand, there is a specific
pleading with regard to sheds put up by defendants and
letting out the same to tenants and also an application is
filed under Order 40 Rule 1 of CPC for appointment of
receiver and no dispute in the said fact and only status quo
is sought in respect of not to put up further construction.
When such being the case, no dispute with regard to the
principles laid down in the judgment referred supra by the
appellant's counsel. Apart from that no dispute with regard
to the principles laid down with regard to the
maintainability of the suit, if the property is acquired by the
BDA. The fact is that though the notification is issued,
possession is not taken by the BDA and award has not been
passed. Under such circumstances, the principles laid down
in the judgment referred supra will not comes to the aid of
the appellant to reverse the finding of the Trial Court on the
ground of maintainability of suit.
21. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
RHS
