Karnataka High Court
Sri Venkatesh Reddy vs Sri Ram Mohan Raju C R on 28 February, 2024
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MFA No. 6766 of 2021
C/W MFA No. 6762 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 6766 OF 2021 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6762 OF 2021 (CPC)
BETWEEN:
SRI. VENKATESH REDDY
SON OF NARAYANAPPA,
AGED ABOUT 73 YEARS,
RESIDING AT DEVARACHIKKANAHALLI VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
...APPELLANT
(COMMON)
(BY SRI. SIDDAMALLAPPA P.M., ADVOCATE)
AND:
Digitally 1. SRI RAM MOHAN RAJU C R
signed by BS
RAVIKUMAR SON OF LATE CHENGAMARAJU,
Location:
AGED ABOUT 48 YEARS,
HIGH RESIDING AT NO.2/3,
COURT OF ROYAL LAKE FRONT,
KARNATAKA RESIDENCY PHASE-3, J.P. NAGAR,
9TH PHASE, RAGHAVANAPALYA,
BANGALORE-560108.
2. SRI. ANANTHA
SON OF SRINIVAS RAO
AGED ABOUT 49 YEARS
RESIDING AT NO.707
3RD MAIN, NISARGA LAYOUT,
BANGALORE-560083
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MFA No. 6766 of 2021
C/W MFA No. 6762 of 2021
ALSO AT:NO.78, KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BANGALORE-560076.
3. SRI. S. MANJUNATHA
SON OF LATE SRINIVASA RAO,
AGED ABOUT 70 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
4. SMT. DIVYA M.,
DAUGHTER OF MANJUNATH
AGED ABOUT 39 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
5. SMT. VASANTHA M.,
DAUGHTER OF S. MANJUNATH,
AGED ABOUT 38 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
6. SMT. DEEPTHI M.,
DAUGHTER OF S. MANJUNATH,
AGED ABOUT 34 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
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MFA No. 6766 of 2021
C/W MFA No. 6762 of 2021
7. SRI. S. RAMACHANDRA RAO
SON OF SRINIVASA RAO,
AGED ABOUT 66 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
8. SRI. SHARATH R.,
SON OF S RAMACHANDRA RAO,
AGED ABOUT 33 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
9. SMT. SURYA KALA M.S.
DAUGHTER OF S. RAMACHANDRA RAO
AGED ABOUT 58 YEARS
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
10. SRI. S. KRISHNAMURTHY,
SON OF LATE SRINIVASA RAO,
AGED ABOUT 62 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
11. SMT. JAYALAKSHMI
DAUGHTER OF S. KRISHNAMURTHY
AGED ABOUT 53 YEARS
RESIDING AT NO.78,
KRISHNA LAYOUT,
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MFA No. 6766 of 2021
C/W MFA No. 6762 of 2021
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
12. SRI. RAKSHITH K.,
SON OF S. KRISHNAMURTHY,
AGED ABOUT 28 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
13. SMT. RASHMI K.,
DAUGHTER OF S. KRISHNAMURTHY
AGED ABOUT 25 YEARS
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
14. SRI. SACHITH A.,
SON OF S ANANTHA,
AGED ABOUT 21 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
15. SMT. RACHANA A.,
DAUGHTER OF S. ANANTHA,
AGED ABOUT 20 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
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MFA No. 6766 of 2021
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16. SMT. J. VANISHREE
DAUGHTER OF S. ANANTHA,
AGED ABOUT 44 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
17. SMT. VIJAYUAMMA @ NARASAMMA
DAUGHTER OF LATE SRINIVASA RAO
AGED ABOUT 74 YEARS
RESIDING AT DEVAGANAHALLI VILLAGE,
DEVANAHALLI TALUQ,
KASABA HOBLI,
BANGALORE RURAL DIST - 562110
18. SMT. SHAKUNTHALAMMA
DAUGHTER OF LATE SRINIVASA RAO
AGED ABOUT 67 YEARS,
RESIDING AT KAREPURA VILLAGE,
PURUSHONAHALLI POST,
DODDABELAVANGALA HOBLI,
DODDABALLAPURA TALUK,
BANGALORE RURAL DISTRICT - 561204
19. SMT. RADHAMMA S.,
DAUGHTER OF LATE SRINIVASA RAO
AGED ABOUT 56 YEARS,
RESIDING AT NO.78,
KRISHNA LAYOUT,
DEVARACHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE-560076.
...RESPONDENTS
(COMMON)
(BY SRI. GANESH BHAT Y.H., ADVOCATE FOR CAVEATOR
RESPONDENT NO.1;
NOTICE YET TO BE ORDERED IN RESPECT OF RESPONDENT
NOS.2 TO 19)
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MFA No. 6766 of 2021
C/W MFA No. 6762 of 2021
IN MFA NO.6766/2021:
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
1908 AGAINST THE ORDER DATED 17.11.2021 PASSED ON I.A.
NO.1 IN O.S.NO.3416/2021 ON THE FILE OF THE LV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCC-56),
DISMISSING I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1 AND
2 OF CPC.
IN MFA NO.6762/2021:
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 17.11.2021 PASSED ON I.A. NO.2
IN O.S.NO.3416/2021 ON THE FILE OF THE LV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (CCC-56),
DISMISSING I.A. NO.2 FILED UNDER ORDER XXXIX RULE 1 AND
2 OF CPC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S.No.3416/2021 on the file of LV
Additional City Civil and Sessions Judge, Bengaluru, has filed
these appeals challenging a common order dated
17.11.2021, by which, applications filed by him under Order
XXXIX Rules 1 and 2 of Civil Procedure Code to restrain the
defendant No.19 from interfering with his peaceful
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possession and from changing the nature of the suit
schedule property was rejected.
2. Briefly stated the facts are that the suit in
O.S.No.3416/2021 was filed for specific performance of an
agreement of sale dated 19.10.1992 executed by the
defendant No.1. Along with the plaint, two applications were
filed by the plaintiff under Order XXXIX Rules 1 and 2 of Civil
Procedure Code to restrain the defendant No.19 from
interfering with his peaceful possession and from changing
the nature of the suit schedule property.
3. The suit was contested by the defendant No.19
who purportedly had purchased the suit property from the
defendant Nos.1 to 18.
4. The Trial Court rejected both the applications in
terms of the impugned order on the following grounds:
i) Except the sale agreement and the power of
attorney, the plaintiff did not have produce any
documents to establish that he was in
possession of the plaint schedule property;
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ii) That the sale agreement set up by the plaintiff
was styled as a sale deed and that it was not
registered in accordance with law. Therefore,
inadmissible in evidence.
iii) That the possession of the property handed
over to the plaintiff under the sale agreement
could at the most be construed as constructive
and actual possession of defendant No.19 was
doubtful;
iv) That though the defendant No.1 had admitted
in O.S.No.1404/2000 that he had executed the
sale agreement dated 19.10.1992, but there
was nothing to show that the Court had
accepted the admission.
v) That the suit filed in O.S. No.1404/2000
against BDA was dismissed and therefore, the
plaintiff did not have prima facie case.
Being aggrieved by the said order, the plaintiff has filed
these two appeals.
5. The learned counsel for the plaintiff submitted
that the suit property fell to the share of the defendant No.1
at the partition between him and his brothers and the same
is evident not only from the sale agreement dated
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19.10.1992, but also from the contemporaneous power of
attorney which was duly registered in favour of the plaintiff.
He submits that the suit property was proposed to be
acquired by the State Government under the Bengaluru
Development Authority Act, 1976 and a notification under
Section 19 of the Act, was issued on 03.11.1990. He
submits that in order to protect the possession of the
plaintiff and the defendant No.1, a suit in O.S.No.1404/2000
was filed against Bengaluru Development Authority and
defendant No.1. He submits that in the said suit, the
defendant No.1 had appeared and had admitted the
execution of the sale agreement dated 19.10.1992. He
therefore, submits that the defendant No.1 had admitted the
lawful and valid execution of the sale agreement dated
19.10.1992. He further contends that a perusal of the sale
agreement dated 19.10.1992, disclosed that the possession
of the suit property was delivered to the plaintiff. He submits
that the defendant No.19 is the subsequent purchaser from
defendant No.1 who attempted to disturb the possession of
the plaintiff in the suit property and attempted to change the
nature of the suit property. He submits that since the
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plaintiff has sought for specific performance of the
agreement of sale dated 19.10.1992, allowing the defendant
No.19 to change the nature of the suit property, and or
disturbing the possession of the plaintiff in suit property,
would cause undue hardship and inconvenience to the
plaintiff and may also result in rendering the suit infructuous.
6. Per contra, the learned counsel for the defendant
No.19 submits that the plaintiff had purportedly purchased
suit property from the defendant No.1 as per the sale
agreement dated 19.10.1992 but had filed the suit for
specific performance in the year 2021 i.e., nearly after the
lapse of 29 years. He therefore contends that prima facie,
the plaintiff has not made out a case for specific performance
and therefore, no indulgence could be shown to the plaintiff.
He also submits that the suit filed by the plaintiff in
O.S.No.1404/2000 was dismissed and therefore, not much
credence can be given to the evidence of the defendant No.1
in O.S.No.1404/2000. He further submits that since
defendant No.19 has purchased the suit property for lawful
consideration, particularly, after the disposal of
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O.S.No.1404/2000, he cannot be restrained from enjoying
the suit property, in any manner, whatsoever. He also
contends that the agreement in question was allegedly
executed after the notification issued by the State
Government and therefore, the same was unenforceable.
7. I have considered the submissions made by the
learned counsel for the appellant and learned counsel for the
respondent.
8. The suit was filed for specific performance of the
agreement of sale dated 19.10.1992 in respect of one acre
of agricultural land in Devarachikkanahalli village, Begur
Hobli, Bengaluru South Taluk, which now lies within the
limits of Bruhat Bengaluru Mahanagara Palike. A perusal of
the evidence adduced by the defendant No.1 in
O.S.No.1404/2000, does indicate that he admitted the
execution of the agreement of sale dated 19.10.1992. If that
be so, a perusal of the agreement indicates that the plaintiff
was put in possession of the suit property under the
agreement of sale dated 19.10.1992. In addition to this, a
contemporaneous power of attorney was executed by the
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defendant No.1 in favour of the plaintiff authorizing him to
do all acts, deeds and things that are required for the
purpose of enjoyment of the suit property. Therefore, prima
facie, there was material to indicate that the plaintiff was
placed in possession of the suit property. The Trial Court
ought to have considered these materials for the purpose of
considering whether the plaintiff had made out a prima facie
case that he is in possession of the suit property. Once the
possession is handed over, there must be a physical act by
the defendant No.1 to recover it, which is absent in the
instant case. An interim order is always granted as a step in
aid to the final relief so as to maintain status-quo of the suit
property pending adjudication of the suit. Therefore, allowing
the defendant No.19 to dispossess the plaintiff or changing
the nature of the suit property, would render the suit
infructuous. Having regard to the fact that the defendant
No.19 claimed that he had purchased the suit property from
defendant No.1, much later, i.e., after the dismissal of
O.S.No.1404/2000, his interest, if any in the suit property,
has to yield to the rights of the plaintiff.
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9. In that view of the matter, the order passed by
the Trial Court in rejecting the applications filed by the
plaintiff is not justified and since the parties have to maintain
status-quo till the disposal of the suit, both the applications
deserves to be allowed.
10. Consequently, these appeals are allowed and the
impugned order dated 17.11.2021 passed in
O.S.No.3416/2021 by the LV Additional City Civil and
Sessions Judge, Bengaluru, on I.A. No.I and II are set aside
and both applications are allowed and defendant No.19 is
restrained from interfering with the peaceful possession and
enjoyment of the suit schedule property and shall not
change the nature of the suit schedule property until
disposal of the suit. Likewise, the plaintiff shall also not
change the nature of the suit property until disposal of the
suit.
11. It is made clear that any observations made
herein above are all tentative and is only for the limited
purpose of considering these appeals. If the plaintiff is
unable to establish the requisites of Section 53A of the
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Transfer of Property Act, 1882, the observations made
herein above shall not rescue him.
12. Since the suit is filed in the year 2021, and listed
for evidence of the parties, the plaintiff is directed to adduce
his evidence before the Trial Court on the next date of
hearing or on the adjourned date.
13. The Trial Court is directed not to grant any
further time to the plaintiff to adduce his evidence. The Trial
Court may consider disposing off the suit at earliest possible,
at any rate within a period of six months from the date of
parties concluding the evidence.
Sd/-
JUDGE
HJ
