Karnataka High Court
Smt. M Sathyavathi vs Sri. Ashok Since Dead By Lrs Smt. ... on 5 June, 2024
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WP No. 8853 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.8853 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. M. SATHYAVATHI
D/O LATE B.K. MUNIYAPPA
W/O. LATE NAGAPPA
AGED ABOUT 64 YEARS
R/AT #1, MANJU NILAYA
DEVARACHIKKANAHALLI, II MAIN ROAD
BANGALORE NORTH TALUK-560 076.
2. SMT. SUSHEELAMMA
D/O LATE B.K. MUNIYAPPA
W/O. MUNIHANUMAIAH
AGED ABOUT 60 YEARS
R/AT AMRUTHAHALLI
BANGALORE NORTH TALUK-560 092.
Digitally 3.
signed by V SMT. M. PREMA
MANJUSHA D/O LATE B.K. MUNIYAPPA
BAI W/O. D. RAMAKRISHNAPPA
Location: AGED ABOUT 58 YEARS
High Court
of Karnataka R/AT #3889, BANGARPET
KOLAR DISTRICT-563 114.
4. SRI K.M. RAVINDRA
S/O LATE B.K. MUNIYAPPA
AGED ABOUT 55 YEARS,
5. K.R. CHANDANA
D/O SRI K.M. RAVINDRA
AGED ABOUT 26 YEARS,
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WP No. 8853 of 2024
6. K.R. SHREYAS
S/O SRI K.M. RAVINDRA
AGED ABOUT 21 YEARS,
PETITIONER NOS.4 TO 6 ARE
R/AT KUMBENA AGRAHARA VILLAGE
KADUGODI POST, BANGALORE-560 067.
7. SMT. K.M. SUGUNA
D/O LATE B.K. MUNIYAPPA
W/O. M. SHAMANNA
AGED ABOUT 51 YEARS
R/AT BDO QUARTERS
CHIKKABALLAPURA TOWN
CHIKKABALLAPURA DISTRICT-562 101.
...PETITIONERS
(BY SRI RAJESH GOWDA, ADVOCATE)
AND:
SRI ASHOK
SINCE DEAD BY LR'S
1. SMT. NAGARATHNAMMA
W/O. LATE ASHOK
AGED ABOUT 44 YEARS,
2. SMT. POOJA A.
D/O LATE ASHOK N.
AGED ABOUT 26 YEARS,
3. SRI PUNITH A.
S/O LATE ASHOK N.
AGED ABOUT 23 YEARS,
4. SRI RAMESH
S/O LATE NANJAPPA
AGED ABOUT 43 YEARS,
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WP No. 8853 of 2024
RESPONDENT NOS.1 TO 4 ARE
RESIDING AT KUMBARPET
KASABA HOBLI, HOSKOTE TALUK
BANGALORE RURAL DISTRICT-562 114.
5. M/S. JEEVAN BUILDERS
FLAT NO.403, 'A' BLOCK
JEEVAN SAMSKRUTHI
NEAR SHIRIDI SAI NAGAR
MUNNEKOLALA, MARATHAHALLI POST
BANGALORE-560 037
REPRESENTED BY ITS MANAGING PARTNER
SRI R. SRINIVAS
S/O LATE RANGAIAH
AGED ABOUT 54 YEARS.
...RESPONDENTS
(BY SRI A.V. GANGADHARAPPA, ADVOCATE
FOR SRI H. NAGARAJ, ADVOCATE FOR C/R-1 TO R-4;
NOTICE TO R-5 IS DISPENSED WITH VIDE
COURT ORDER DATED 05.06.2024)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT
ORDER OR DIRECTION THEREBY QUASHING THE ORDER
DATED 21.04.2023 PASSED BY THE IV ADDITIONAL SENIOR
CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE IN
O.S.NO.26/2021 PASSED ON IA-II, UNDER ORDER 39 RULE 1
AND 2 OF CPC, VIDE ANNEXURE-'AD' AND CONSEQUENTLY TO
SET ASIDE THE ORDER DATED 21.04.2023, PASSED BY THE IV
ADDITIONAL SENIOR CIVIL JUDGE BANGALORE RURAL
DISTRICT, BANGALORE, IN O.S.NO.26/2021, PASSED ON IA-II,
UNDER ORDER 39 RULE 1 & 2 OF CPC., VIDE ANNEXURE-'AD',
ETC.
THIS PETITION COMING ON FOR ORDERS, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 8853 of 2024
ORDER
1. Respondent nos.1 to 4 are the plaintiffs in
O.S.No.26/2021 pending on the file of IV Additional Senior
Civil Judge, Bengaluru Rural District, Bengaluru. In the said
original suit, the following prayers are made:
"Wherefore, the plaintiffs most humbly pray that
this Hon'ble Court may be pleased to pass a judgment
and decree
1) To declare that the plaintiffs are the absolute owners in
peaceful possession and enjoyment of the suit schedule
property.
2) To declare that the alleged Joint Development
Agreement dated 18.03.2016 executed by the defendants
No.1 to 7 in favour of the defendant No.8 vide document
No.BNS-1-18874-2015-16, in book-1, stored in CD
No.BNSD420, registered in the office of the Sub-
Registrar, Shivajinagar (Banasawadi), Bengaluru, is not
binding on the plaintiffs.
3) To grant an order of permanent injunction restraining
the defendant from interfering with the plaintiff's peaceful
possession and enjoyment over the suit schedule
property.
4) To grant any other relief as this Hon'ble Court may
deem fit in the circumstances of the case.
SCHEDULE PROPERTY
All that part and parcel of the land bearing Sy.No.56,
measuring 1 acre 37 guntas, situated at Kumbena
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Agrahara Village, Bidarahalli Hobli, Bangalore East Taluk,
Bengaluru and bounded on:
East by : Government Road
West by : Land of belongs to Narayana
Reddy
North by : Remaining land in same Sy.No
South by : Land belongs to Sri. Shyamanna"
Along with the plaint, the plaintiffs have also filed two
applications under Order 39 Rule 1 and 2 read with Section
151 of CPC with the following prayer:
"For the reasons stated in the accompanying
affidavit, the Plaintiff prays that this Hon'ble Court may be
pleased to pass an exparte ad-interim order of Temporary
Injunction restraining the Defendants their agents,
attorneys are anybody claiming under them or for them,
from changing the nature of the suit schedule property in
any manner, till the disposal of the above case, in the
interest of justice and equity."
"For the reasons stated in the accompanying
affidavit, the Plaintiff prays that this Hon'ble Court may be
pleased to pass an exparte ad-interim order of Temporary
Injunction restraining the Defendants their agents,
attorneys are anybody claiming under them or for them,
from alienating or encumbering the suit schedule property
in favour of any third parties, in any manner, till the
disposal of the above case, in the interest of justice and
equity."
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2. The trial court rejected the application-I.A.No.1 and
allowed I.A.No.2 by passing the following order:
"ORDER
IA No.I filed u/o 39 rules 1 and 2 of CPC by the
plaintiffs is hereby rejected with costs.
IA No.II filed u/o 39 rules 1 and 2 of CPC by the
plaintiffs is hereby allowed with costs.
In the result defendants or their agents or anybody
who claiming through them are hereby temporarily
restrained from selling or creating any third party rights
over schedule property till disposal of the suit.
Cost, amendment and amended w/s by 04.07.2023."
3. Aggrieved by the same, defendant nos.1 to 7 preferred
M.A.No.47/2023 before IX Additional District and Sessions
Judge, Bengaluru Rural District and the order of the trial
court has been upheld in the said appeal and the following
order has been passed:
"::ORDER ::
The appeal preferred by the appellants/defendant
No.1 to 7 under Order 43 Rule 1(r) of C.P.C is dismissed.
The orders passed on I.A.No.2 by the learned
VI Addl. Senior Civil Judge, Bengaluru Rural District,
Bengaluru in O.S.No.26/2021 dated 21-04-2023 is
confirmed.
No order as to cost.
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Office is hereby directed to send a copy of
judgment to the learned trial court forthwith."
Aggrieved by the same, the present writ petition is filed by
defendant nos.1 to 7 with the following prayer:
"Wherefore, the petitioners pray that this Hon'ble
court be please to: -
{a} To issue a writ or nature of Certiorari or any
other appropriate writ order or direction thereby quashing
the order dated 21.04.2023, passed by the IV Additional
Senior Civil Judge Bangalore Rural District, Bangalore, in
OS No.26/2021, passed on IA-II, under order 39 rule 1 &
2 of CPC, vide Annexure-'AD' and consequently to set-
aside the order dated 21.04.2023, passed by the IV
Additional Senior Civil Judge Bangalore Rural District,
Bangalore, in OS No.26/2021, passed on IA-II, under
order 39 rule 1 & 2 of CPC, vide Annexure-'AD'
{b} To issue a writ or nature of Certiorari or any
other appropriate writ order or direction thereby quashing
the order dated 26.09.2023, passed by the IX Additional
District and Sessions Judge, Bangalore, Rural District,
Bangalore, in MA No.47/2023 vide Annexure-'AG" and
consequently set-aside the order dated 26.09.2023,
passed by the IX Additional District and Sessions Judge,
Bangalore, Rural District, Bangalore, in MA No.47/2023,
vide Annexure AG and dismiss the IA-II, under order 39
Rule 1 & 2 of CPC, in OS No.26/2021, on the file of IV
Additional Senior Civil Judge Bangalore Rural District,
Bangalore, by allowing the above petition.
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(c)To pass such other suitable order as this Hon'ble
court may deem fit in the circumstances of the case and
in the interest of justice."
4. The brief facts of the case are as under:
Defendant nos.1 to 7 entered into a joint development
agreement with defendant no.8 to develop the suit schedule
property and after completion of the construction and
issuance of occupancy certificate on 20.06.2020, the
plaintiffs filed the original suit on 02.01.2021 with the
prayers mentioned in para no.1 supra.
5. The case of the plaintiffs is that they are owners of the
suit schedule property. In the meanwhile, defendant no.8
who is the developer is said to have alienated all the flats
which had fallen into his share and defendant nos.1 to 7 had
alienated some of the flats which had fallen into their share.
The trial court and the First Appellate Court, based on the
materials produced before them, came to the conclusion that
the plaintiffs have made out a prima facie case to show that
they have some right, title and interest over the suit
schedule property as the apartment complex has been
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completely constructed and some of the flats have already
been alienated, dismissed the first application filed to
restrain the defendants from changing the nature of the
property and allowed the second application which was filed
to restrain the defendants from alienating any portion of the
suit schedule property. Aggrieved by the same, the present
writ petition is filed.
6. The petitioners have prayed for setting aside the order
passed by the trial court as well as the First Appellate Court
and dismiss all the applications filed by the plaintiffs.
7. Per contra, respondent nos.1 to 4/plaintiffs pray that
the writ petition be dismissed and justify the orders passed
by the trial court as well as the First Appellate Court.
8. The only question that arises for consideration in this
writ petition is whether under the given facts and
circumstances of the case, the trial court and the First
Appellate Court were correct in allowing the second
application filed by the plaintiffs therein, wherein the
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defendants have been restrained from alienating any portion
of the suit schedule property.
9. The trial court and the First Appellate Court based on
the materials placed before them have come to the
conclusion that prima facie the plaintiffs have made out a
case that they have some right in the suit schedule property,
however, the same is subject to full fledged trial that is yet
to take place. Trial Court is required to decide whether
plaintiffs therein have any title to the property based on the
pleadings and evidence that is yet to be let in by the parties.
Given the materials placed before this Court, I am of the
considered opinion that it is not appropriate to interfere in
the said finding of the trial court or the First Appellate Court
regarding the same. Having come to such a conclusion, the
aspect which remains to be considered is given the fact that
the plaintiffs have kept quiet till completion of the building,
are they entitled to the reliefs prayed for by them in the
interlocutory applications.
10. A perusal of the prayer made in the plaint shows that
the plaintiffs have prayed not only for a declaration that they
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are the owners of the property, but have also contended that
they are in peaceful possession and enjoyment of the suit
schedule property. The very fact that defendant nos.1 to 7
entered into a joint development agreement with defendant
no.8 and the developer completed the construction and
defendant no.8 has alienated his share of the suit schedule
property and the other defendants are said to have alienated
a portion of their property falsifies the claim of the plaintiffs
that they are in peaceful possession and enjoyment of the
suit schedule property.
11. Under the circumstances, the impugned orders of the
First Appellate Court and the trial court are considered to be
harsh on the defendants. On the face of it, it appears that
the plaintiffs have slept over their rights, if any, over the suit
schedule property and they have allowed a building to be
constructed and portions of it to be alienated. If the orders
passed by the trial court and the First Appellate Court are
not modified, there is a possibility that the defendants and
subsequent purchasers may be coerced to come to a
compromise with the plaintiffs illegally. Hence, I am of the
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opinion that it would be appropriate to modify the impugned
orders wherein any future alienation to be made by the
petitioners or respondent no.5 herein shall be subject to the
result of the original suit in O.S.No.26/2021 pending on the
file of IV Additional Senior Civil Judge, Bengaluru Rural
District, Bengaluru. Hence, the following:
ORDER
Any future alienation to be made in respect of the suit
schedule property by the petitioners or respondent no.5
herein shall be subject to the result of O.S.No.26/2021
pending on the file of IV Additional Senior Civil Judge,
Bengaluru Rural District, Bengaluru. The impugned orders
stand modified accordingly.
The writ petition stands disposed of accordingly.
Sd/-
JUDGE
hkh.
