Karnataka High Court

Smt Renukamma vs Smt V B Surya Kumari on 2 July, 2024

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                                     NC: 2024:KHC:24696
                                                                    MFA No. 2351 of 2024




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                DATED THIS THE 2ND DAY OF JULY, 2024
                                                 BEFORE
                              THE HON'BLE MR JUSTICE RAVI V HOSMANI
                      MISCELLANEOUS FIRST APPEAL NO.2351 OF 2024 (CPC)
                      BETWEEN:
                      1.    SMT. RENUKAMMA,
                            AGED 56 YEARS,
                            D/O LATE SRI D. MUNISHAMAPPA,
                            W/O LATE SRI VENKATARAMAPPA,
                            R/O KAVERI NAGAR, 'A' BLOCK,
                            R.T. NAGAR POST, GOVINDAPURA,
                            BENGALURU - 560 032.
                      2.    SRI M. DODDANNA,
                            AGED 59 YEARS,
                            S/O LATE SRI D. MUNISHAMAPPA,
                            R/AT NO.1884, MUNESHWARA TEMPLE ROAD,
                            NEAR GOVERNMENT SCHOOL,
                            ARABIC COLLEGE POST, GOVINDAPURA,
                            BENGALURU - 560 045.
                                                                          ...APPELLANTS
                      (BY SRI SRINIVASAN T., ADVOCATE)
                      AND:
                      1.    SMT. V.B. SURYA KUMARI,
                            AGED ABOUT 52 YEARS,
Digitally signed by         W/O SRI H. SURESH BABU,
GEETHAKUMARI
PARLATTAYA S                R/AT KAVERI NAGAR, 'A' BLOCK,
Location: High              R.T. NAGAR POST, BENGALURU - 560 032.
Court of Karnataka    2.    SRI FAIZULLA KHAN,
                            AGED 57 YEARS,
                            S/O LATE SRI AMEER JAN,
                            R/AT OLD NO.20, NEW NO.39,
                            MEMORIAL STREET, BHARATHI NAGAR,
                            BENGALURU - 560 001.
                                                                       ...RESPONDENTS
                      (BY SRI SHAKEEL AHMED, ADVOCATE FOR R2
                          NOTICE TO R1 IS D/W)

                           THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST
                      THE ORDER DATED 27.03.2024 PASSED ON I.A.NO.1 AND 2 IN
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                                                  NC: 2024:KHC:24696
                                                 MFA No. 2351 of 2024




O.S.NO.6287/2023 ON THE FILE OF THE XXIX ADDITIOANL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-30), REJECTING
I.A.NO.1 FILED U/O.39 RULE 1 AND 2 OF CPC, ALLOWING I.A.NO.2
FILED U/O.39 RULE 4 R/W SEC.151 OF CPC AND INTERIM ORDER OF
INJUNCTION DATED 29.09.2023 STANDS VACATED.

     THIS APPEAL, COMING ON FOR HEARING ON IA, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

Though appeal is listed for consideration of I.A.no.2/2024

for vacating of interim order dated 24.04.2024, with consent of

learned counsel for parties, appeal was heard for disposal.

2. Challenging order dated 27.03.2024 passed by

XXIX Addl. City Civil and Sessions Judge (CCH-30), Bengaluru

in O.S.no.6287/2023 on I.A.no.1 filed under Order XXXIX Rules

1 and 2 and I.A.no.2 filed under Order XXXIX Rule 4 read with

Section 151 of Code of Civil Procedure, 1908 ('CPC' for short),

this appeal is filed.

3. Sri Srinivasan T., learned counsel for appellants

submitted that appellants were plaintiffs in suit filed for

permanent injunction. In said suit, I.A.no.1 was filed by

plaintiffs for temporary injunction restraining defendants from

interfering with plaintiffs' peaceful possession and enjoyment of

suit schedule properties. Initially, trial Court had granted

an ex-parte ad-interim injunction on 29.09.2023. Upon

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entering appearance, defendant no.2 filed written statement

and application-I.A.no.2 for vacating interim order dated

29.09.2023. On hearing both applications together, trial Court

under impugned order rejected I.A.no.1 and allowed I.A.no.2.

Aggrieved by same, plaintiffs are in appeal.

4. It was submitted, though trial Court had taken note

of records produced by plaintiffs to conclude that plaintiffs had

made out prima facie case, upon referring to unsubstantiated

claims of defendant no.2, trial Court had answered point no.1

regarding prima facie case in negative to reject application.

Said conclusion being contrary to records and suffers from

perversity, calls for interference. It was submitted, plaintiffs

had stated that suit schedule properties were part of

Sy.no.37/4 of Nagavara village. Originally, one Sri Doddaiah

was tenant of said land. His son Sri D.Munishamappa filed Form

no.7 for grant of occupancy rights and Land Tribunal granted

same. Thereafter, D.Munishamappa died in year 1989. One of

daughters of D.Munishamappa i.e. Smt.Yashodamma filed

O.S.no.15342/2000 for partition. Said suit ended in

compromise decree, wherein suit schedule properties fell to her

share. Under registered gift deed dated 05.08.2020,

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Smt.Yashodamma gifted suit schedule properties to plaintiffs.

As there was some error insofar as boundary description, a

rectification deed was also executed subsequently.

5. It was submitted, plaintiffs stated that they had

constructed asbestos sheet roofed house therein and obtained

electricity and water connection and were in possession. On

other hand, defendant no.2 claimed that site no.29/1 was

purchased from Smt.V.B.Suryakumary under registered sale

deed dated 05.08.2023. It was submitted,

Smt.V.B.Suryakumary had earlier purchased it from one

Sri S. Nagaraj under registered sale deed dated 29.07.2015. It

was submitted, trial Court had observed that Smt.Yashodamma

had signed said sale deed as consenting witness and

photographs produced indicated defendant no.2 was in

possession and entered into agreement for construction. It was

submitted, fact that gift deed executed by Smt.Yashodamma in

favour of plaintiffs was prior to sale deed in favour of defendant

no.2 was overlooked by trial Court and same had led to

perverse conclusion. On above ground seeks for setting aside of

impugned order.

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6. On other hand, Sri Shakeel Ahmed, learned counsel

for respondent/defendant no.2 sought to justify impugned

order. It was submitted on appreciation of documents produced

by defendant no.2, trial Court had concluded that possession of

suit schedule properties was with defendant no.2. It was

submitted, by virtue of joint development agreement,

defendant no.2 had begun construction and same had

progressed beyond slab of ground floor and pillars on first floor.

If, construction were stopped at this stage, defendant no.2

would be subjected to grave hardship. Even loss due to

construction material being subjected to elements of nature

and probable increase in cost of construction were also

pleaded. It was submitted, defendant no.2 was facing theft of

construction material and therefore, trial Court had rightly

rejected application. It was submitted, admittedly there was

dispute regarding title in respect of suit schedule properties.

Under such circumstances, plaintiffs were not entitled for grant

of temporary injunction.

7. Learned counsel fervently submitted defendant no.2

may be permitted to complete construction of ground floor and

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reside therein subject to outcome of suit as he doesn't have a

roof over his head.

8. In support of his submissions, learned counsel for

defendant no.2 sought to rely upon decisions of this Court in

Mandali Ranganna and Ors. v. M. Ramachandra and Ors.,

reported in 2010 (4) Kar.L.J 322 and in S.C.

Gangadharaiah v. REMCO (BHEL), House Building Co-

operative Society Limited, Bengaluru and Ors., reported in

2018 (3) Kar.L.J 552.

9. In reply, learned counsel for appellants relied upon

decision of this Court in Narasingh v. K. Basavaraj, reported

in 2010 (1) KCCR 346, wherein it was held where there was

serious dispute regarding identity of property, it would be

appropriate to direct defendant to maintain status-quo with

regard to property and not put up any construction till disposal

of suit.

10. Heard learned counsel and perused impugned

order.

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11. From above since main ground of challenge is

perversity regarding conclusions arrived at by trial Court,

following point would arise for consideration:

"Whether order impugned suffers from perversity and calls for interference?"

12. Perusal of order impugned indicates that trial Court

after adverting to pleadings and contentions of parties, also

referred to documents relied upon and framed proper points for

consideration and thereafter passed reasoned order. Main

reason assigned for refusing injunction is that claim of

plaintiffs' title over suit schedule properties on basis of

registered gift deed executed by Smt.Yashodamma on

05.08.2020, but, sale deed dated 05.08.2023 of defendant no.2

showed that Smt.Yashodamma as a signatory. Thus, it held

Smt.Yashodamma - plaintiffs' sister was aware of sale deed

executed in favour of defendant no.2. Thereafter, taking note of

agreement for construction of building and photographs

indicating digging of borewell by defendant no.2, it answered

points for consideration regarding prima facie case, balance of

convenience, irreparable loss and injury against plaintiffs and

rejected application. It is also seen that trial Court had taken

note of dispute regarding title based on General Power of

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Attorney by stating that same would require to be considered

after evidence.

13. As stated above, when sale deed under which

defendant no.2 claiming interest in suit schedule properties is

dated 05.08.2023, though Smt.Yashodamma is signatory to

said sale deed, plaintiffs were claiming interest in suit schedule

properties under gift deed dated 05.08.2020, which is earlier.

Both parties are seeking reliance on 'B-Khata'. However, as per

observations of trial Court defendant no.2 was in possession

based on photographs indicating digging of borewell as well as

assertion by defendant no.2 about construction in progress

would prima facie indicate that defendant no.2 is in possession.

Thus, there is serious dispute about title with regard to suit

schedule properties. In such circumstances, as this Court held

in Narasingh's case (supra), it would be appropriate to direct

defendant, not to put up any further construction till disposal of

suit.

14. Insofar as decision relied on Mandali Ranganna's

case (supra), it is seen that order rejecting applicant's claim for

temporary injunction to prevent continuation of construction

had received seal of approval from Hon'ble Supreme Court and

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there was investment of crores of rupees for construction.

Under such circumstance, this Court held preventing completion

of construction would not be justified.

15. In REMCO's case (supra), fact that proposed

construction was for establishment of a petrol-bunk, which

would be subject to permissions, approvals and no objections

granted by various authorities and would require to be

completed within time frame, this Court had held stoppage of

construction would not be justified.

16. In instant case, there is serious dispute about title.

Under such circumstances, permitting defendant no.2 to

complete construction would permit changing of nature of suit

schedule properties irreversibly. However, as noted by trial

Court, construction put up by defendant no.2 progressed upto

slab of ground floor and pillars on first floor. Same would

indicate that defendant no.2 would be in possession. Therefore,

equity of both parties require to be balanced.

17. As noted above, rejection of application for

injunction filed by plaintiffs pivots on observation that

Smt.Yashodamma was signatory to sale deed in favour of

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defendant no.2, which being later than registered gift deed in

favour of plaintiffs, cannot be given overriding effect. In view of

serious dispute regarding suit schedule properties instead of

permitting defendant no.2 to complete construction it would be

appropriate to set time line for disposal of suit to balance

interest of both parties. Therefore, point for consideration is

answered partly in affirmative. Hence, following:

ORDER

i. Appeal is allowed in part.

ii. Impugned order dated 27.03.2024 passed by XXIX Addl. City Civil and Session Judge (CCH-30), Bengaluru in O.S.no.6287/2023 on I.A.no.1 filed under Order XXXIX Rules 1 and 2 and I.A.no.2 filed under Order XXXIX Rule 4 read with Section 151 of CPC are set aside.

iii. It would be appropriate to direct defendant no.2 to maintain status-quo with regard to construction existing as on today on suit schedule properties till disposal of suit.

iv. It is however clarified that defendant no.2 would be entitled to continue curation of construction and also to take adequate measures for protection of construction material.

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v. Plaintiffs are directed to deposit sum of Rs.10,00,000/- within two months before trial Court, which would be subject to outcome of suit and in case plaintiffs were to unsuccessful can be consider to be awarded to defendant no.2 as damages.

        vi. Plaintiffs        are      directed        to      deposit
             Rs.5,00,000/-          within     four        weeks      and

remaining Rs.5,00,000/- within four weeks thereafter.

vii. Both parties undertake to cooperate for early conclusion of suit. Trial Court is directed to proceed with framing of ISSUES forthwith and dispose of suit within an outer limit of six months, by setting specific timeline for each stage of suit.

viii. In case of default in depositing amount as ordered, trial Court would be at liberty to pass appropriate orders regarding vacation of temporary injunction.