Karnataka High Court

Smt Kusuma Kumari vs Sri K Ganesh Babu on 26 July, 2024

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                                NC: 2024:KHC:29428
                                                             MFA No. 8808 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                  DATED THIS THE 26TH DAY OF JULY, 2024

                                                 BEFORE
                               THE HON'BLE MR JUSTICE RAVI V HOSMANI
                         MISCELLANEOUS FIRST APPEAL NO.8808 OF 2023 (CPC)
                       BETWEEN:

                           SMT. KUSUMA KUMARI,
                           W/O LATE S. VENKATESHWARULU,
                           AGED ABOUT 66 YEARS,
                           REPRESENTED BY HER
                           POWER OF ATTORNEY HOLDER
                           SRI S. SRAVAN CHAITANYA,
                           S/O LATE S. VENKATESWARLU,
                           AGED ABOUT 40 YEARS,
                           R/AT NO.189/A, MLA COLONY ROAD
                           NO.12, BANJARA HILLS
                           HYDERABAD - 50034.
                                                                       ...APPELLANT

                           (BY SMT. NALINA MAYEGOWDA, SENIOR COUNSEL FOR
                               SRI D. V. SHASHANK, ADVOCATE)

                       AND:

                           SRI K. GANESH BABU
Digitally signed by
MOUNESHWARAPPA
                           AGED ABOUT 58 YEARS,
NAGARATHNA
Location: High Court
                           S/O LATE SRI KRISHNAMURTHY,
of Karnataka
                           D.NO.26/1-1, 'CHAITANYA'
                           2ND CROSS, M.T. LAYOUT,
                           13TH CROSS, BEHIND MES COLLEGE,
                           BENGALURU - 560053.

                                                                     ...RESPONDENT
                           (BY SRI BIPIN HEGDE, ADVOCATE FOR C/R)

                            THIS MFA FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC,
                       PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 10.10.2023
                       PASSED ON I.A.NO.1/2021 IN OS.NO.5156/2021 ON THE FILE OF
                       THE    LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
                       BENGALURU, DISMISSING THE I.A.1/2021 FILED UNDER ORDER 39
                       RULE 1 AND 2 OF CPC.
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                                              NC: 2024:KHC:29428
                                           MFA No. 8808 of 2023




      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE RAVI V HOSMANI


                        ORAL JUDGMENT

Challenging order dated 10.10.2023 passed by LII Addl.

City Civil and Sessions Judge, Bengaluru, in O.S.no.5156/2021

on I.A.no.1/21 filed under Order XXXIX Rules 1 and 2 of Code

of Civil Procedure, 1908 ('CPC' for short), this appeal is filed.

2. Smt.Nalina Mayegowda, learned Senior Counsel

appearing for Sri D.V. Shashank and Smt.Anusha B. Reddy,

Advocates for appellant submitted that appellant was plaintiff in

suit filed for permanent injunction etc. In said suit, I.A.no.1

was filed by plaintiff for temporary injunction restraining

defendant from changing of nature of schedule property and

putting up construction or from interfering with plaintiffs'

peaceful possession and enjoyment of suit schedule property.

3. It was submitted, under impugned order, trial Court

rejected application on untenable grounds. It was submitted

subject matter of suit was site no.52, Omkar layout formed in

Sy.no.17/2A (wrongly described as Sy.no.3/3B in sale deed

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dated 24.11.1994) of Ganakallu village, Kengeri Hobli,

Bengaluru, bounded on East by 25 ft. road; West and North by

property of P.S. Bhat and South by property of Suresh Hegde.

It was submitted, plaintiff purchased suit property under sale

deed dated 24.11.1994. But, due to inadvertence, suit property

was wrongly described as Sy.no.3/3B of Ganakallu village.

4. It was submitted, Taluk Surveyor had identified suit

properties as situated in Sy.no.17/2A of Ganakallu village.

Same was relied on by plaintiff in O.S.no.8729/2004 filed by

her earlier, seeking for declaration of title and permanent

injunction. It was submitted, on 29.10.2005, trial Court therein

had directed parties to maintain status quo, taking note of fact

that plaintiff's name was mutated in respect of 7 guntas in

Sy.no.3/3B, Krishi Pass book produced by plaintiff and letter

issued by BDA calling upon plaintiff to pay development

charges after formation of Omkarnagar layout. It was

submitted, said order was not challenged. However, said suit

was dismissed for non-prosecution. When Misc.no.57/2014 filed

for its restoration was pending, some third parties filed

O.S.no.9897/2006 for declaration of title in respect of land

bearing Sy.no.3/3(B) of Ganakallu.

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5. On ground that defendant had purchased suit

property therein, from said third parties, present defendant had

sought impleadment in suit. But, application was rejected as

sale deed was executed during pendency of suit. In

W.P.no.5860/2021, this Court stayed further proceedings in

O.S.no.9897/2006.

6. It was submitted on 20.09.2021, defendant

trespassed into schedule property and demolished wall and

fence put up by plaintiff. Complaint given to police by plaintiff

was found to be ineffective. On said cause of action, present

suit, was filed for Permanent injunction etc.

7. It was submitted, while passing impugned order,

trial Court failed to take note of fact that plaintiff was absolute

owner in possession of scheduled property as per Surveyor's

report. Therefore, observation that plaintiff was not in

possession was contrary to documents relied on by plaintiff. It

was submitted, though initially there was error in description of

suit property in O.S.no.8729/2004, plaintiff had subsequently,

filed application for amendment, which was allowed and error in

description was removed. It was submitted, order allowing

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amendment was not challenged by defendants. Therefore, they

were estopped from contending about error in description of

suit property.

8. It was further submitted, at time of passing

impugned order, trial Court virtually held mini trial, deciding

title over suit property, which was contrary to law laid down by

Hon'ble Supreme Court in Anand Prasad Agarwalla v.

Tarkeshwar Prasad and Ors., reported in 2001 (5) SCC

568 and Zenit Mataplast Private Limited v. State of

Maharashtra and Ors., reported in 2009 (10) SCC 388,

respectively.

9. It was submitted even documents produced by

plaintiff were considered by trial Court, properly. It erred in

assuming that order of status quo granted in earlier suit was

against plaintiff. It was also submitted, though plaintiff herein

had earlier filed comprehensive suit for declaration of title,

same would not bar filing of suit for bare injunction, as held in

Smt.Jagadishwari v. Smt.M.Revathi and Ors., reported in

ILR 2024 KAR 1365. On above grounds, learned counsel for

appellants, sought for allowing appeal in ends of justice.

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10. On other hand, Sri Bipin Hegde, learned counsel for

respondent/defendant at outset questioned maintainability of

present suit, on ground that reliefs sought in earlier suit and

present suit were same. It was submitted, said suit was initially

for permanent injunction, and relief of declaration of title was

sought after amendment of plaint.

11. It was submitted, perusal of schedule in sale deed

dated 24.11.1994 executed in favour of plaintiff would indicate

that it was in respect of 7 guntas in Sy.no.3/3B. Therefore,

plaintiff cannot claim any right in respect of Sy.no.17/2A. It

was submitted, plaintiff had suppressed about filing of suit for

rectification against her vendor in O.S.no.3599/2008, which

was dismissed on 18.06.2009, after full fledged trial. It was

submitted, trial Court had specifically held, as per BDA, suit

property was situated in Sy.no.3/3B and not Sy.no.17/2A. Said

decree was challenged after 14 years.

12. It was also submitted order of status quo granted

in O.S.no.8729/2004 was prior to amendment of plaint

schedule and same would not continue after amendment. It

was submitted, Surveyor's report on which plaintiff was relying

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in O.S.no.8729/2004, was not in pursuance of directions

issued by Court, but, secured independently without notice to

defendants. Therefore, as observed by trial Court, contents of

said report were required to be proved during trial.

13. It was submitted, while passing impugned order

trial Court had held plaintiff failed to prima facie establish that

schedule property was situated in Sy.no.17/2A. It also held,

since plaintiff's comprehensive suit i.e. O.S.no.8724/2004, was

restored and pending, any further observations in present suit

would affect parties in said suit.

14. In view of above, it was contended, admittedly

plaintiff had sought declaration of her title in respect of suit

property by claiming that it was situated in Sy.no.17/2A. It was

submitted, until such declaration was granted, plaintiff would

not be justified in making such claims in this suit. Thus, trial

Court had taken note of all material on record and held that

plaintiff had failed to establish prima facie case, balance of

convenience and irreparable loss and injury by assigning

various reasons. Hence, same did not call for interference.

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15. Heard learned counsel and perused impugned

order.

16. It is seen that main grounds of challenge against

impugned order are failure to consider Surveyor's report and

perversity of conclusion arrived at by trial Court. Hence,

following points would arise for consideration:

"1. Whether impugned order passed by trial Court is untenable for failure to consider Survey Report?

2. Whether its conclusions are perverse calling for interference?"

17. Bare perusal of impugned order reveals that after

adverting to pleadings and contentions of parties, trial Court

framed proper points for consideration and thereafter passed

reasoned order.

18. Though contention is urged about non-consideration

of Taluk Surveyor's report, perusal of impugned order reveals

that same has been referred to. While it would be available for

appellant to contend that there was no proper consideration, no

case of non-consideration is made out. Point no.1 is answered

in negative.

NC: 2024:KHC:29428

19. To substantiate contention regarding conclusion

being perverse, it was submitted while passing impugned order,

learned trial Judge had virtually held mini trial and conclusions

arrived at were on merits of suit. But, it is seen impugned order

is on following findings by trial Court. Firstly, it held that while

passing order of status quo, Court had not held plaintiff being

in possession of suit property. But in view of order dated

29.10.2005 passed on I.A.no.I in O.S.no.8729/2004, extracted

below, same would be contrary to record.

"Therefore, it may be stated that plaintiff has made of existence of her property as also her possession over same. ..."

20. Secondly, it held O.S.no.8729/2004 is

comprehensive in nature and plaintiff has to workout her

remedies in said suit and therefore, no order of temporary

injunction can be granted. Perusal of cause of action in

O.S.no.8729/2004 and present suit reveal that they are on

different cause of action. Since, defendants had filed suit

against plaintiff, while O.S.no.8729/2004 stood dismissed for

non-prosecution, present suit would be on separate cause of

action. Therefore, observation would be untenable.

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21. Thirdly, it held documents produced namely Exs.P.1

to P.25 are not sufficient to prove prima facie case, by referring

to dismissal of O.S.no.3599/2008. Though, appeal is stated to

have been filed, same is after delay of more than decade and

there is no interim order obtained. But, as rightly contended by

learned counsel for defendant, plaintiff has not disclosed about

above mentioned suit in plaint.

22. Insofar as failure to consider Taluk Surveyor's

report and erroneous reference to dismissal of

O.S.no.3599/2008, when it is challenged in RFA no.838/2023,

trial Court though referred to various reasons are assigned

therein for not accepting same, trial Court herein has ultimately

observed, Survey Report is required to be proved by plaintiff.

Therefore, trial Court has assigned reason for non-consideration

of report at present stage, which cannot be stated to be

perverse.

23. From above, it is seen that while passing order on

I.A.no.1 in O.S.no.8729/2004, trial Court has given specific

finding about plaintiff's possession over suit property. It also

held plaintiff had established prima facie case for grant of

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temporary injunction, by rejecting defendants' prayer for

vacating ad interim injunction. Said order was in force from

14.12.2004 till 16.01.2014 i.e. during entire period, when

O.S.no.3599/2008 was pending. And with restoration of

O.S.no.8729/2004, said order has revived. Therefore, rejection

of I.A.no.1/21 would be untenable. Point no.2 is answered in

affirmative. Hence, following:

ORDER

i. Appeal is allowed.

        ii. Impugned        order        dated       10.10.2023
           passed     by    LII     Addl.     City    Civil   and
           Sessions         Judge,           Bengaluru,         in

O.S.no.5156/2021 on I.A.no.1/2021 filed under Order XXXIX Rules 1 and 2 of CPC is set-aside.

iii. I.A.no.1/21 is allowed in part, directing parties to maintain status quo regarding suit property as ordered on I.A.no.I in O.S.no.8729/2004 on 29.10.2005 till disposal of suit.