Karnataka High Court
Smt Venkatamma vs Mr Amith C M on 9 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 6978 of 2023
C/W MFA No. 7153 of 2023
MFA No. 7186 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.6978 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.7153 OF 2023 (CPC)
MISCELLANEOUS FIRST APPEAL NO.7186 OF 2023 (CPC)
IN MFA No.6978/2023
BETWEEN:
1. SMT. VENKATAMMA
W/O LATE HANUMAIAH
AGED ABOUT 58 YEARS
2. SRI MARUTHI
SON OF LATE SRIRAMAPPA
AGED ABOUT 40 YEARS
Digitally signed
by SHARANYA T
Location: HIGH BOTH ARE R/AT ALLALASANDRA VILLAGE
COURT OF GKVK POST, YELAHANKA HOBLI
KARNATAKA
YELAHANKA TALKUK
BANGALORE - 560 065
...APPELLANTS
(BY SRI UNNIKRISHNAN M, ADVOCATE)
AND:
1. MR. P R HARISH KUMAR
SON OF B RAMAIAH
AGED ABOUT 47 YEARS
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MFA No. 6978 of 2023
C/W MFA No. 7153 of 2023
MFA No. 7186 of 2023
2. SMT. PRATHIBHA G
W/O P.R. HARISH KUMAR
AGED ABOUT 34 YEARS
BOTH ARE R/AT NO. 520
18TH MAIN, 23RD CROSS
JUDICIAL LAYOUT, YELAHANKA
BANGALORE - 560 065.
3. THE KARNATAKA STATE JUDICIAL
DEPARTMENT EMPLOYEES HOUSE
BUILDING CO-OPERATIVE SOCIETY LIMITED
REP. BY ITS SECRETARY
HAVING ITS OFFICE AT
SWATHI COMPLEX
SESHSADRIPURAM
BENGALURU 560 020
NOW OFFICE AT
NO. 178, CENTRAL SQUARE
2ND FLOOR, FLAT FORM ROAD
SESHADRIPURAM
BENGALURU - 560 020
...RESPONDENTS
(BY SRI VIJAYA KUMAR K, ADVOCATE FOR R1 & R2)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DATED 13.10.2023 PASSED ON IA
NO.1 IN O.S.NO.5102/2023 ON THE FILE OF THE 17TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU AND ETC.
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MFA No. 6978 of 2023
C/W MFA No. 7153 of 2023
MFA No. 7186 of 2023
IN MFA No.7153/2023
BETWEEN:
1. SMT. VENKATAMMA
W/O LATE HANUMAIAH
AGED ABOUT 58 YEARS
2. SRI MARUTHI
SON OF LATE SRIRAMAPPA
AGED ABOUT 40 YEARS
BOTH ARE R/AT ALLALASANDRA VILLAGE
GKVK POST, YELAHANKA HOBLI
YELAHANKA TALKUK
BANGALORE - 560 065
...APPELLANTS
(BY SRI UNNIKRISHNAN M, ADVOCATE)
AND:
1. MR. AMITH C M
S/O MUNIYAPPA C
AGED ABOUT 39 YEARS
2. SMT. LAVANYA K S
W/O AMITH C M
AGED ABOUT 38 YEARS
BOTH ARE R/AT NO. 101
OPP. MAITHRI LAYOUT
C&J RESIDENCY
NEAR HOPE FORM CIRCLE
WHITEFIELD
BANGALORE - 560 066
...RESPONDENTS
(BY SRI KALYAN R, ADVOCATE FOR R1 & R2)
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NC: 2024:KHC:1102
MFA No. 6978 of 2023
C/W MFA No. 7153 of 2023
MFA No. 7186 of 2023
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DATED 13.10.2023 PASSED ON IA
NO.1 IN O.S.NO.5063/2023 ON THE FILE OF THE 17TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU AND ETC.
IN MFA No.7186/2023
BETWEEN:
1. SMT. VENKATAMMA
W/O LATE HANUMAIAH
AGED ABOUT 58 YEARS
2. SRI MARUTHI
SON OF LATE SRIRAMAPPA
AGED ABOUT 40 YEARS
BOTH ARE R/AT
ALLALASANDRA VILLAGE
GKVK POST, YELAHANKA HOBLI
YELAHANKA TALKUK
BANGALORE - 560 065
...APPELLANTS
(BY SRI UNNIKRISHNAN M, ADVOCATE)
AND:
MR. JAIAPRAKASH GANAPATHRAO KHUBA
S/O GANAPATHRAO KHUBA
AGED BOUT 54 YEARS
R/AT No.112, 'F' BLOCK
SNN RAJ GRANDURE
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MFA No. 6978 of 2023
C/W MFA No. 7153 of 2023
MFA No. 7186 of 2023
NEAR JAKI FACTORY
VTC BANGALORE SOUTH
P.O.BOMANAHALLI
BANGALORE-560068
...RESPONDENT
(BY SRI KALYAN R, ADVOCATE)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DATED 13.10.2023 PASSED ON IA
NO.2 IN O.S.NO.5104/2023 ON THE FILE OF THE 17TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU AND ETC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed challenging the order dated
13.10.2023 passed in O.S.Nos.5102, 5063 and 5104 of
2023 by the XVII Additional City Civil and Sessions Judge,
Bengaluru.
2. These appeals are listed for admission. Heard
the learned counsel appearing for the respective parties.
3. These appeals are taken up together for
common disposal since the relief sought in the respective
suits is for permanent injunction and inter alia sought for
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the relief of temporary injunction against the defendants
from interfering with the possession of the suit schedule
property and the Trial Court granted the relief of
temporary injunction in favour of the respective plaintiffs
hence, being aggrieved by the said order, the present
appeals are filed by the defendants/appellants before this
Court.
4. The factual matrix of the case of the respective
plaintiffs before the Trial Court that in respect of the
properties bearing Nos.2047, 2042 and 2043 which
morefully described in the schedule of the suit schedule
property were purchased by the respective plaintiffs from
defendant No.3-society and defendant Nos.1 and 2 are
interfering with the possession of the plaintiffs' peaceful
possession and enjoyment over their respective suit
schedule property. Hence, the plaintiffs have filed the
complaint before the police but no purpose was served
thus, they filed the suits before the Trial Court for the
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relief of permanent injunction and consequently, sought
for the relief of temporary injunction.
5. It is the case of the respective plaintiffs before
the Trial Court that from the date of purchase of the
respective suit schedule property, they are in possession
of the same and revenue records were also standing in
their names. But defendant Nos.1 and 2 even though
having no right in respect of the suit schedule property,
are interfering with their possession. It is also pleaded
that earlier a suit was filed before the Trial Court in
O.S.No.6381/1997 wherein defendant No.1 is also a party
to the said suit as plaintiff No.4 and the said suit was
ended in compromise between the owners of the property
and also defendant No.3-society wherein the plaintiffs in
the said suit have got 11 sites in Sy.No.12/1. It is also
their case that defendant Nos.1 and 2 are nothing to do
with the suit schedule property and defendant No.2 is
doing the real estate business in the local limits and even
though he is not having right over the suit schedule
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property which was acquired by defendant No.3, making
an attempt to disturb the possession of the plaintiffs over
the suit schedule property. Same averments are repeated
in the application filed under Order 39 Rules 1 and 2 of
CPC while inter alia seeking the relief of temporary
injunction.
6. The said suits were resisted by the defendants
before the Trial Court by filing the written statement
contending that the very sites which have been formed is
not the subject matter of acquisition of property to the
extent of 154 acres by defendant No.3. It is also
contended that Sy.No.12/1 was not included in the sale
deed executed in favour of the vendors of the plaintiffs
and layout plan also does not discloses the said survey
number. The counsel also would vehemently contend that
even though the compromise was entered between the
appellant and society in the earlier suit in
O.S.No.6381/1997, same is not the subject matter of the
suit and now, they cannot contend that sites are formed in
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Sy.No.12/1 and they are in possession of the suit schedule
property. The counsel also would vehemently contend
that the compromise is not registered and when there is
no approved layout, the question of selling the suit
schedule property in favour of the plaintiffs does not arise.
The counsel also would vehemently contend by producing
the photographs that the suit schedule properties are
vacant sites and the Court has to pass an order to
maintain status quo instead of granting the relief in favour
of the plaintiffs.
7. The counsel also in support of his contention
produced the memo along with the RTC for the year 2022-
23 in respect of Sy.No.12/1 to the extent of 1 acre 22
guntas and also produced the Encumbrance Certificate.
The counsel also produced the endorsement issued by the
Land Acquisition Officer on 22.06.2022 with regard to the
furnishing of documents in respect of acquiring of
Sy.No.12/1 wherein it is stated that Sy.No.12/1 is not
included in the acquisition of the property. Hence, the
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Trial Court has committed an error in granting the relief of
temporary injunction restraining the defendants from
interfering with the plaintiffs' peaceful possession and
enjoyment over the suit schedule property.
8. Per contra, the learned counsel appearing for
the respondent/plaintiff before the Trial Court and the
counsel for the appellant in MFA No.6978/2023 would
vehemently contend that the suit is filed only for the relief
of bare injunction. The counsel further submits that his
client has purchased the property from one Manjunath and
the original allottee is Krishnappa. The allotment letter is
also produced along with the document and thereafter
possession was delivered in his favour and katha also
transferred in favour of Krishanppa and afterwards in
favour of his vendor and his vendor sold the property in
favour of his client in the year 2022. The counsel also
would vehemently contend that when defendant Nos.1 and
2 came near the suit schedule property on 21.06.2023,
complaint was given and police have not taken action
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hence, filed the suit for the relief of permanent injunction
and also sought the relief of temporary injunction. The
counsel further contends that the Trial Court rightly
granted the relief of temporary injunction having
considering the documents which exists from 2003
onwards in the name of the vendors and presently the
documents are standing in the name of the respective
plaintiffs. The counsel also would vehemently contend
that one Anjanamma has filed the suit in
O.S.No.5553/2004 questioning the compromise entered
between defendant No.1 with the society wherein 11 sites
were allotted in favour of the plaintiffs. The counsel
brought to notice of this Court to the terms and conditions
of the compromise entered between the parties in
O.S.No.6381/1997. The counsel also submits that though
one Anjanamma had filed the suit in O.S.No.5553/2004
challenging the compromise ultimately, the said suit also
got dismissed. The counsel submits that in the said suit,
defendant No.1 appeared but not filed the written
statement questioning the compromise, ultimately, the
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said suit was also got dismissed. The counsel also would
vehemently contend that no suit is filed for the
cancellation of earlier compromise and the same has not
been challenged hence, now they cannot contend that
they are in possession of the suit schedule property and
plaintiffs are not in possession of the suit schedule
property.
9. The counsel appearing for the respondent in
other two appeals would vehemently contend that there is
no dispute with regard to that, earlier the property was
acquired by the society to the extent of 154 acres and the
counsel brought to notice of this Court to the averments
made in the compromise decree wherein it is specifically
pleaded that there was an agreement of sale in respect of
Sy.No.12/1 in the year 1984 and subsequently, in the year
1990 also one more agreement was entered between the
parties. The counsel also would vehemently contend that
sale consideration was received in terms of sale
agreement of the year 1984 and 1990. One more suit was
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filed wherein also they compromised the matter and they
got 11 sites. The counsel also would vehemently contend
that the suits which have been filed in respect of sites i.e.,
2047, 2042 and 2043, the said sites are not included in
the compromise that is in the 11 sites. When such being
the case, defendant No.1 cannot claim any right in respect
of the suit schedule property. The counsel also brought to
notice of this Court to the compromise petition
particularly, paragraphs 4 and 5 wherein sites are listed
out and contend that no such sites are included in the
compromise which entered between the parties. The
counsel also brought to notice of this Court to paragraph 8
of the compromise petition wherein there is a specific
averment that defendant No.2 has no objection to make
use of the sites in the said layout by the plaintiffs and
recognised them as a site holder in the said layout and
entitled to the facilities available to the site holder in the
said layout in respect of the subject matter of the
compromise. The counsel also brought to notice of this
Court to paragraph 9 wherein also it is clearly mentioned
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that defendant No.2 has agreed to execute the sale deeds
in favour of the plaintiffs of their nominees in respect of 'B'
schedule sites treating them as allottees and get the sale
deed registered before the Sub-Registrar at Yalahanka at
the cost of the plaintiffs and her nominees. The counsel
referring these conditions contend that it is very clear that
compromise was entered in respect of Sy.No.12/1 to the
extent of 1 acre 26 guntas which the plaintiffs are claiming
in respect of the suit schedule properties and now they
cannot contend that they are in possession of the suit
schedule property. The specific averment made in the
compromise petition that they are not claiming any
possession in respect of the sites which have been formed
by the society.
10. In reply to the said argument, the counsel for
the appellant relied upon the judgment of the Apex Court
reported in AIR 2008 SC 2337 in the case of K
RABHUNANDAN AND OTHERS vs ALI HUSSAIN
SABIR AND OTHERS and brought to notice of this Court
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paragraph 28 wherein the Apex Court discussed with
regard to the judgment of Som Dev and extracted
paragraph 18 of the said judgment with regard to the
registration of compromise is concerned. The counsel also
would vehemently contend that when the suit schedule
properties are not included in the layout plan, there cannot
be any order of temporary injunction in their favour.
11. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
available on record, it is not in dispute that the suit is filed
only for the relief of permanent injunction. The plaintiffs
have inter alia sought for the relief of temporary injunction
restraining the defendants from interfering with their
possession. It is important to note that specific plea is
made in the plaint that on 21.06.2023, defendant Nos.1
and 2 came near the suit schedule property and tried to
interfer with their peaceful possession and enjoyment of
the suit schedule property. No doubt, defendant No.3 had
acquired the property to the extent of 154 acres. It is also
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not in dispute that sites are also formed exceeding the
property acquired. It is also important to note that the
very defendant No.1 had filed the suit in
O.S.No.6381/1997 and in that suit, defendant No.1 is
plaintiff No.4. It is also not in dispute that compromise
was entered between the parties and the counsel also not
disputes the said fact but his only contention that the said
compromise is not registered. It is also important to note
that when defendant No.1 is one the plaintiff in
O.S.No.6381/1997 and also a party to the compromise
along with other plaintiffs, accepted the sites which have
been formed by defendant No.3 particularly, 11 sites in
number and the very sites are also formed in the
particular layout. Having perused the documents it
discloses that the sites which have been allotted to the
appellant herein along with other plaintiffs in the said suit
are not included. No doubt, the very contention of the
counsel for the appellant that Sy.No.12/1 was not included
in the layout plan. It is also the case of the plaintiffs that
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there was an agreement of sale and subsequently, when
the suit was filed, there was a compromise.
12. Having perused the compromise, wherein the
appellant is also a signatory to the said compromise and
have accepted the sites bearing site Nos.854, 853, 849,
855, 856, 1924, 750, 42, 2049, 1847, 2093 and the said
sites were formed by defendant No.3-society and the sites
are accepted in Sy.No.12/1 and now they cannot contend
that Sy.No.12/1 is not included in the said layout plan and
they are in possession of the property. It is also very clear
that in the compromise petition an averment is made that
both the parties have relinquished their rights in respect of
the sites which have been formed by the society and
condition No.2 is clear that in pursuance of the said
agreement, the suit schedule property was developed by
defendant No.2 forming layout, making roads, laying
metals in the schedule by defendant No.2 and allotted and
sold sites to its members. The identity of the said land as
survey number at present could not be traced, but the
sites can be traced in the said land, which is being now
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developed fully. When the appellant as well as the parties
to the said compromise accepted that society has formed
the layout and given the site numbers in respect of said
layout, the very contention that the appellant is having
right in respect of Sy.No.12/1 cannot be accepted. The
counsel contends that the compromise is not a registered
one and the said contention cannot be accepted since
whether said compromise is a registered or not is a
question of fact and the same has to be decided on merits
after trial.
13. The counsel for the respondent brought to
notice of this Court that one Anjanamma has filed the suit
for cancellation of compromise in O.S.No.5553/2004
wherein reference is made that said compromise is also
registered and sought for the relief of cancellation of the
said registration. No doubt, the counsel for the appellant
brought to notice of this Court that the appellant is not a
party to the said suit and the suit is filed by one
Anjanamma. The material clearly discloses that layout
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was formed by defendant No.3 including the properties
acquired by the society and suit was also filed by the very
defendant No.1/appellant who was plaintiff No.4 in
O.S.No.6381/1997 and entered into the compromise and
made it clear that no interference with the possession of
the sites which have been formed by the society and now
they cannot contend that they are in possession of the suit
schedule property.
14. It is also not in dispute that they have accepted
the compromise and also acted upon in terms of the
earlier compromise entered between the parties in
O.S.No.6381/1997. It is not the case that they have not
taken the sites in the said suit but no such pleadings
before the Court. When they entered into the compromise
and the properties are identified and sites were also
allotted in favour of the plaintiffs in the suit of compromise
to the extent of 11 sites, now they cannot contend that
they are in possession of the suit schedule property. On
the other hand, the plaintiffs have produced the sale deeds
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of their vendors to show that their vendors have
purchased the property and thereafter katha was changed
in their names and also produced allotment letter,
possession certificate and the katha certificates to show
that the documents are standing in their name as on the
date of filing of the suit. When such being the case, the
very contention of the appellant counsel that Trial Court
has committed an error in granting the relief of temporary
injunction cannot be accepted. Having perused the
material available on record and particularly taking into
note of the fact that defendant No.1 who is the appellant
herein was already a party to the suit in
O.S.No.6381/1997 and party to the compromise and
accepted sites in terms of the compromise, now he cannot
contend that he is in possession of the suit schedule
property. At the time of considering the application filed
under Order 39 Rules 1 and 2 of CPC, the Court has to
take note of only whether the plaintiffs have made out the
case and they are in possession of the suit schedule
property as on the date of filing of the suit. When the
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plaintiffs have made out the case by producing the
documents before the Court, the very contention that the
compromise was not registered and no interest has been
passed in favour of the society and society in turn cannot
execute any document in favour of the plaintiffs cannot be
accepted and the same is a matter of trial. Hence, I do
not find any grounds to interfere with the order of the Trial
Court when the Trial Court has not committed any error
while granting the relief of temporary injunction in favour
of the plaintiffs.
15. In view of the discussions made above, I pass
the following:
ORDER
The appeals are dismissed.
Sd/-
JUDGE
SN
