Karnataka High Court
Sri. Srinivasa Rao vs Smt. Puttamma on 7 March, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.6593/2022 (CPC)
BETWEEN:
SRI SRINIVASA RAO,
S/O LATE MOHAN RAO,
AGED ABOUT 75 YEARS,
R/AT HOUSE NO.530,
8TH MAIN, VIJAYANAGAR,
BENGALURU-560040.
REP. BY HIS GPA HOLDER,
SRI. K.B. RAMESH,
S/O PARIYANA BORAIAH,
AGED ABOUT 54 YEARS,
R/AT NO.35/36, 13TH CROSS,
AGRAHARA DASARAHALLI,
BENGALURU-560079.
... APPELLANT
(BY SRI D.R. RAVISHANKAR, SENIOR COUNSEL FOR
SRI SANJAY G., ADVOCATE)
AND:
1. SMT. PUTTAMMA,
W/O LATE MUNIYAPPA,
AGED ABOUT 58 YEARS,
2. SRI JANARDHAN M.,
S/O LATE MUNIYAPPA,
AGED ABOUT 50 YEARS.
2
3. SMT. PUSHPALATHA,
W/O SRI JANARDHAN,
AGED ABOUT 38 YEARS.
4. SRI AKSHIT,
S/O LATE MUNIYAPPA,
AGED ABOUT 32 YEARS.
5. SMT. RAJESHWARI,
D/O LATE MUNIYAPPA,
AGED ABOUT 52 YEARS.
6. SRI ANUJ KUMAR R.,
S/O M.H. RAMAMURTHY,
AGED ABOUT 27 YEARS.
7. R. ASHA,
D/O M.H.RAMAMURTHY,
AGED ABOUT 22 YEARS.
RESPONDENT NOS.1 TO 7 ARE
RESIDING AT PATTANAGERE VILLAGE,
KENGERI HOBLI,
BANGALORE SOUTH TALUK.
8. SRI M.S. PRASAD,
MAJOR IN AGE,
NO.305, A, ANAND ANNEX,
J.P.NAGAR, BENGALURU-560078.
9. SRI M. PUTTARAMAIAH,
S/O LATE M. MANCHAIAH,
AGED ABOUT 68 YEARS.
10. SRI M. MANJUNATH,
S/O LATE M. MANCHAIAH,
AGED ABOUT 65 YEARS.
11. SRI M. MOHAN,
S/O LATE M. MANCHAIAH,
AGED ABOUT 60 YEARS.
3
12. SMT. M. PADMA,
D/O LATE M. MANCHAIAH,
AGED ABOUT 57 YEARS.
13. SRI RAVI,
S/O LATE M.MANCHAIAH,
AGED ABOUT 55 YEARS.
RESPONDENT NOS.9 TO 13 ARE
RESIDING AT NO.21/2,
NEHARU NAGAR,
GIRLS SCHOOL STREET,
GANDHINAGAR,
BENGALURU NORTH,
SHESHADRIPURAM,
BENGALURU-560020.
14. SRI DAYANANDA,
S/O SRI SANKAPPA,
AGED ABOUT 68 YEARS,
R/AT NO.9/2,
MAHALAKSHMI CHAMBERS,
M.G.ROAD, BENGALURU-560001.
... RESPONDENTS
(BY SRI DHANANJAY V. JOSHI, SENIOR COUNSEL FOR
SRI K. VIJAYA KUMAR, ADVOCATE FOR R1 TO R7;
SRI VIJAYA KUMAR, ADVOCATE FOR R8;
SRI AMSHITH HEGDE, ADVOCATE FOR R9 TO R14)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 14.09.2022 PASSED ON IA
NO.1 IN O.S.NO.3494/2022 ON THE FILE OF THE XLII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
(CCH-43), DISMISSING IA NO.1 FILED UNDER ORDER 39 RULE
1 AND 2 OF CPC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.02.2024, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging the order dated 14.09.2022
passed on I.A.No.1 in O.S.No.3494/2022, on the file of XLII
Additional City Civil and Sessions Judge, Bengaluru, rejecting the
application filed under Order 39 Rules 1 and 2 read with Section
151 of CPC.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that the plaintiff had filed a suit seeking the
relief of permanent injunction restraining the defendants, their
agents, servants, or anybody claiming under them from any
manner in any way interfering with the plaintiff's possession and
enjoyment of the suit schedule property. It is contended that
the plaintiff is the full and absolute owner in possession and
enjoyment of 3 acres of residentially converted land in old
Sy.No.10, new Sy.No.68 of Pattanagere Village, Kengeri Hobli,
Bengaluru South Taluk, which is morefully described in the
schedule. It is contended that originally the schedule property
was granted to one Sri Sanjeevaiah under darkhast and the
revenue records stood in the name of the grantee Sri
Sanjeevaiah for the year 1969-70 to 1988-89. The said
Sanjeevaiah applied for conversion from agricultural purpose to
residential purpose and paid conversion charges. The Deputy
Commissioner, vide order dated 03.12.1992, converted the suit
schedule property for non-agricultural residential purpose. He
was not able to form the layout and he had sold the said
schedule property vide sale deed dated 09.06.1992, registered
on 23.07.1992 in favour of the plaintiff. The plaintiff is a senior
citizen and not in a situation to take care of the suit schedule
property. As such the plaintiff executed the general power of
attorney dated 09.07.2007 in favour of the present attorney
holder in respect of suit schedule property. The plaintiff also
produced the sale deed, encumbrance certificate from
01.04.1992 to 31.03.2004. The general power of attorney was
produced and MR was also changed in favour of the plaintiff in
MR No.9/1992-93.
3. The said Sanjeevaiah passed away in the year 2004
and his legal heirs approached the Assistant Commissioner in
K.Sc.St.No.36/2004-05 to restore the land in their favour and
the same was restored vide order dated 17.03.2006 by the
Assistant Commissioner. The same was questioned before the
Special Deputy Commissioner and the same was set aside. In
the meanwhile, the documents are changed based on the
restoration of the property in favour of the legal representatives
of Sanjeevaiah. The plaintiff approached the revenue authorities
to transfer the revenue records in his name and they gave an
endorsement on 25.04.2022 that the suit schedule property was
already converted for residential purpose and the revenue
records cannot be transferred. Hence, the plaintiff approached
BBMP to issue khatha and the BBMP issued the khatha and
collected cash. It is contended that since from the date of
purchase, the plaintiff is in peaceful possession and enjoyment of
the schedule property. When things stood thus, the defendants
without there being any semblance of right, title or interest over
the suit schedule property, taking advantage of the plaintiff is at
a distance place, started making illegal attempt of encroaching
with the help of JCB on the suit schedule property on
25.05.2022. The defendants having the support of other
elements, started unnecessarily interfering with the possession
of the plaintiff and making attempt to trespass on the suit
schedule property, again on 26.05.2022. The photographs and
compact disk are produced as document Nos.23 and 24. The
plaintiff having no other option, reported the matter to the
jurisdictional police and insptie of the complaint, the police
officials refused to register the complaint on the ground that the
matter is civil in nature. The defendants are having money and
muscle power and when their threat of interference was
continued, the plaintiff filed a suit seeking the relief of
permanent injunction and also sought temporary injunction by
filing an application under Order 39 Rules 1 and 2 of CPC.
4. The defendants appeared and filed the written
statement and adopted the written statement as objections to
the I.A. It is their contention that the plaintiff has not
approached the Court with clean hands and not disclosed the
material facts and by suppressing the material facts, seeking the
discretionary relief. It is contended that the plaintiff after
purchasing the property had executed a general power of
attorney dated 20.07.1999 in favour of REMCO (BHEL) House
Building Co-operative Society Ltd.) in respect of the suit
schedule property. Thereafter, based on the general power of
attorney, the REMCO (BHEL) House Building Co-operative
Society Ltd.), has formed a layout and sold the sites in favour of
various purchasers on various dates in the year 2001 and
subsequent years. Accordingly, the subsequent purchasers have
put up constructions and they are residing in the said sites. It is
further contended that after lapse of 12 years, the plaintiff's
vendors i.e., Sadashivaiah, Sanjeevaiah, Ramakrishnaiah and
wife of deceased Venkatachalaiah by name Puttamma have filed
a petition before the Assistant Commissioner, Bengaluru South
Sub division, under Section 5 of the PTCL Act and the said case
was registered in K.SC.ST.No.36/2004-05, wherein the plaintiff
was arrayed as respondent. The said appeal was allowed vide
order dated 17.03.2006 and the land was restored to the plaintiff
and the sale deed of the plaintiff is declared as null and void,
since the sale deed was in contravention of the PTCL Act. It is
contended that the vendors of the plaintiff have not made the
subsequent purchasers in the said case and obtained the orders
behind back of the purchasers. Thereafter, the plaintiff aggrieved
by the order of the Assistant Commissioner, Bengaluru South
Sub-division, preferred an appeal the Deputy Commissioner,
Bengaluru Urban District in Appeal No.4/2020. The said appeal
was allowed and the order passed by the Assistant
Commissioner was set aside. It is contended that though order
was passed long back by the Assistant Commissioner on
17.03.2006, the appeal was filed in 2020 after 14 years from the
date of the order of the Assistant Commissioner. It is contended
that till this day, Srinivas Rao has never appeared personally in
any of the proceedings either before the Assistant
Commissioner, Deputy Commissioner or before this Court or in
O.S.No.2878/2022 filed by defendant Nos.1 to 7 represented by
defendant No.8 as GPA holder. There is a cloud whether Srinivas
Rao has authorized K.B. Ramesh to prosecute the suit and on
that count itself, the suit of the plaintiff is liable to be dismissed.
5. It is also contended that the vendors of the plaintiff
and their family members have also filed O.S.No.4806/2020 as
against Puttaramaiah and others for the relief of permanent
injunction in respect of suit schedule property. It is contended
that subsequently, in view of non-granting of interim order, the
plaintiff therein filed a memo on 17.10.2020 and withdrew the
said suit as not pressed. Accordingly, the said suit was
dismissed. In the said suit, Puttamma and others are
represented by their GPA holder Sri Narayana. Likewise,
Narayana had filed a suit in O.S.No.4745/2022 against
Puttamma and others for the relief of specific performance of
contract based on the created and collusive alleged agreement of
sale dated 14.09.2020 and the said suit is also pending. In the
said suit, defendant Nos.1 to 8 are arrayed as defendants. It is
contended that during the pendency of O.S.No.4806/2020, the
plaintiffs herein have filed one more suit in O.S.No.26199/2020
and the said suit is also for permanent injunction and the same
is also pending consideration. Puttaramaiah and others have
also filed a suit in O.S.No.25402/2020 for the relief of
permanent injunction and the said suit is pending consideration.
It is contended that the plaintiff is having knowledge of the
above said suits and proceedings. Inspite of the same, the
plaintiff has suppressed the said facts and filed the present suit
and sought for the relief of temporary injunction. The plaintiff
has produced the photographs pertaining to the property in
possession of defendant Nos.1 to 7 and claiming his alleged right
in respect of the non-existing schedule property. On that ground
alone, the suit of the plaintiff is liable to the dismissed.
6. It is contended that the suit schedule property
mentioned in the plaint including boundaries, measurement are
altogether different from the boundaries mentioned in
O.S.No.5706/2010, since the vendors of the plaintiff have filed a
suit in O.S.No.5706/2010 and given different boundary
description. It is also contended that after filing of the suit, this
Court was pleased to issue emergent notice and the same was
challenged in W.P.No.11241/2022 and the Court was pleased to
grant status quo. After coming to know about the order passed
in the writ petition, the defendant has verified the records and
there is no any reference regarding the Village name, Hobli
name or Taluk name. The defendant No.1 filed an application on
17.06.2022 before the BBMP seeking information to furnish the
khatha certificate in respect of the property and on verification,
the BBMP authorities have issued an endorsement on
27.06.2022 stating that there is no katha certificate in respect of
katha No.3555/10/68 in respect of 3 acres of land and the tax
paid receipt produced by the plaintiff is pertaining to Sri Vikas
Jain property and there is no tax paid receipt issued by the BBMP
authorities in respect of Sy.No.68, in the name of Srinivas Rao.
It is contended that the tax paid receipt produced by the plaintiff
is created and the letter dated 25.04.2022, produced by the
plaintiff is also created one, since on 22.06.2022 the Special
Tahsildar has issued an endorsement stating that the same is
not issued by the then Special Tahsildar and further intimated
that the then Special Tahsildar was transferred to some other
place and from the office of the Tahsildar, no such endorsement
was issued. It is contended that the documents which have
been placed before the Court are created for the purpose of the
case.
7. It is also the contention that defendant Nos.1 to 7
are the absolute owners in possession and enjoyment of the
converted land measuring 3 acres 20 guntas situated at
Pattanagere village and the suit schedule property is morefully
described in the written statement. The defendant No.1 is the
wife of late Sri Muniyappa, defendant Nos.2, 4 and 5 are the
sons and daughters of the deceased Muniyappa, defendant Nos.6
and 7 are the grandchildren on Muniyappa and defendant No.3 is
the daughter in law of Muniyappa. Muniyappa died in the year
2010 leaving behind defendant Nos.1 to 7 to succeed to his
estate including the written statement schedule property.
During the lifetime of Muniyappa, he had acquired the written
statement schedule property by way of grant made by the
Tahsildar for an upset price of Rs.100/- per acre, vide order
No.LND/CR/138/1957-58, dated 28.01.1958. Subsequently,
grant certificate was issued in favour of Muniyappa. Thereafter,
Muniyappa has also deposited necessary fee and subsequently
the revenue records were transferred in the name of Muniyappa
in the year 1974-75 in MR No.157/1974-75. It is contended that
ever since from the date of the grant, husband of defendant
No.1 is in possession and enjoyment of the written statement
schedule property. Subsequently, after the demise of Muniyappa,
revenue records in respect of the written statement schedule
property is transferred in the name of defendant No.1 as per MR
No.H10/2011-12. During the year 1995-96, the Special Deputy
Commissioner was pleased to initiate suo-moto proceedings
under Section 136(3) of the Karnataka Land Revenue Act, in
respect of lands in Sy.Nos.8, 10 and 11 of Pattanagere Village.
After holding enquiry into the matter, the entries made in the
name of Muniyappa and others, were ordered to be cancelled
and resumed the land to the Government, vide order dated
30.10.1998. Being aggrieved by the said order, Muniyappa had
filed W.P.No.27784/2009. After hearing, the High Court quashed
the order dated 30.10.1998 in respect of land of Muniyappa and
the matter was remanded to the Special Deputy Commissioner
for fresh enquiry and disposal in accordance with law. In
accordance with law. Subsequently, after enquiry, the Special
Deputy Commissioner vide order dated 25.11.2020 was pleased
to drop the proceedings and ordered to restore the name of
Muniyappa and others in the revenue records.
8. It is contended that during the lifetime of Muniyappa,
he had filed an application before the Assistant Commissioner,
Bengaluru South Taluk, for conversion of the schedule property
from agricultural to non-agricultural residential purpose.
Subsequently, after collecting the charges, written statement
schedule property was converted from agricultural to non-
agricultural purpose vide order No.ALN(S) SR/18/1995-96 dated
27.12.1995. At the time of conversion, the Taluk Surveyor of
Bengaluru South Taluk, conducted a survey and identified the
land measuring 3 acres 20 guntas in Sy.No.10 and the same is
marked as Block No.1 and prepared a sketch. On perusal of the
sketch produced by the Taluk Surveyor, it clearly indicates that
the land granted in favour of Muniyappa is clearly identified. It
is also contended that defendant Nos.1 to 7 have authorized
their GPA holder/defendant No.8, to invest funds and develop
the layout by giving site numbers in the written statement
schedule property by providing all civil amenities. Subsequently,
the defendant has formed a residential layout and also put up a
temporary watchmen shed and obtained electricity connection
from BESCOM and put a blue sheet compound wall in and
around the written statement schedule property and also
installed CCTV cameras. Accordingly, Puttamma and her family
members are in possession and enjoyment of the written
statement schedule property. It is contended that when such
being the case, few persons i.e., the plaintiff, vendors of the
plaintiff and others came near the written statement schedule
property and tried to illegally interfere with the possession and
hence, filed O.S.No.2878/2022 for the relief of permanent
injunction against the said Sanjeevaiah and others.
Subsequently, after hearing, the Court vide order dated
21.04.2022, was pleased to grant an ad-interim order of exparte
temporary injunction. Subsequent to the filing of
O.S.No.2878/2022, the plaintiff, their henchmen and others with
the influence of politicians and taking law into their hands, have
come near the written statement schedule property on
20.05.2022 and hence went to lodge the complaint with the
police and the police have registered the crime against the
plaintiff and others and hence they have violated the interim
order. It is contended that they have no manner of right, title,
interest or possession over the suit schedule property. The
vendors of the plaintiff and their family members have filed a
suit in O.S.No.3124/2022 as against defendant Nos.1 to 8. In
the said suit, the defendant has filed the written statement and
objections and the court was pleased to dismiss I.A.No.2. In the
said suit, the vendors of the plaintiff have contended that they
are in possession of the plaint schedule property. In the instant
suit, the plaintiff contended that he is in possession of the suit
schedule property. The fact remains that the plaintiff or the
vendors of the plaintiff are not in possession of the suit schedule
property since the plaintiff has formed a layout and sold sites
through his GPA holder. It is also contended that the plaintiff
has no locus standi to file the suit and denied all other
averments made in the plaint.
9. The Trial Court having taken note of the contentions
of the plaintiff and the defendants, formulated the points as to
whether the plaintiff has made out a prima facie case for grant of
temporary injunction as prayed, whether the plaintiff proves that
the balance of convenience lies in his favour and whether the
plaintiff proves that irreparable loss and injury will be caused to
him if temporary injunction is not granted. The Trial Court
having considered the material on record, answered all the
points in the negative and dismissed the I.A.
10. The main contention of the learned counsel for the
appellant is that the Trial Court has committed an error in
dismissing the application. It is contended that the suit schedule
property was originally granted in favour of Sanjeevaiah in the
year 1950 and old survey number is 10/4 and new survey
number is 68. The plaintiff had purchased the property in the
year 1992. After some time, original owners have filed an
application before the Assistant Commissioner and the Assistant
Commissioner ordered for resumption of property and the
Deputy Commissioner reversed the said order. It is the
contention that the claim made by the defendants is in favour of
Muniyappa S/o Balappa and claims the sale agreement and GPA
and there was no any conversion and no grant document is
produced before the Court. The suit for declaration was filed and
the same was dismissed. The writ petition is also filed for phodi.
The Trial Court committed an error in rejecting the application
and not considered the factual aspects. The learned counsel
would submit that Sanjeevaiah is not a party in
O.S.No.26199/2020 and the Court has to take note of that there
are no details in the sale deed about the property of the
particular survey number.
11. Per contra, the learned counsel for the respondents
would submit that the suit is for the relief of injunction and
exparte injunction was not granted and hence filed the writ
petition. The Trial Court has taken note of the power of attorney
was executed by the said Sanjeevaiah. The learned counsel
contend that the power of attorney holder sold the property by
forming the layout. There is a cloud over the title and the
reasons given by the Trial Court is very clear and when there is
cloud over the title, they cannot maintain a suit for permanent
injunction.
12. In reply to the arguments of the learned counsel for
the respondents, the learned counsel for the appellant would
contend that an application is filed under Order 39 Rule 2A of
CPC, since the order passed by this Court is violated and action
has to be taken against the respondents. Inspite of injunction
was granted, sold the properties and it requires interference of
this Court and appropriately, the respondents have to be dealt
with.
13. The learned counsel for the respondents has
produced the documents along with the memo i.e., absolute sale
deed dated 19.10.2022 executed by the plaintiff along with Smt.
M.S.Divya , Managing Director of M/s. Trinco Infra Pvt. Ltd., in
favour of Sri Cheluvaraj and consequent upon that, khatha has
been issued by the BBMP and tax paid receipts and
memorandum of understanding dated 30.10.2021 entered into
between one Prashanth Chandra and M/S. Trinco Infra Pvt. Ltd.
The learned counsel also filed some more documents i.e., copy
of the plaint in O.S.No.5444/2020 and order sheet, copy of
W.P.No.17586/2021 and order sheet, copy of the plaint in
O.S.No.515/2022 and order sheet, memo of withdrawal of the
said suit, copy of the agreement to sell dated 14.07.2011
executed by defendant Nos.1, 2 and 4 in favour of one Sri
Prabhuraj D. Ambli, copy of agreement to sell dated 22.06.2015
executed by defendant Nos.1 to 7 in favour of Sri Ramesh, copy
of agreement to sell dated 25.02.2022 executed by defendant
Nos.1 to 7 in favour of defendant No.8, copy of GPA dated
19.03.2022 executed by defendant Nos.1 to 7 in favour of
defendant No.8, copy of the rectification deed dated 10.05.2022,
encumbrance certificates, copy of the deposits and connection
issued by the BESCOM, copy of the order dated 17.08.2022
passed in W.P.No.11241/2022. The respondents have also
produced the copy of the plaint in O.S.No.2878/2022, copy of
the endorsements dated 27.06.2022 and 22.06.2022, tax paid
receipts dated 17.09.2021 and copy of the compromise decree
passed in O.S.No.5706/2010.
14. The learned counsel for respondent Nos.1 to 8 has
relied upon the judgment of the Apex Court in the case of
KANGARO INDUSTRIES (R) AND OTHERS v. JAININDER
JAIN AND ANOTHER reported in 2022 Live Law (S) 437 and
contended that it is not open to the Court in contempt
jurisdiction to enlarge the scope of relief claimed in the main
proceedings being CS (OS)No.156/2004 and more so, when the
initial interim relief is limited to the registered trademark.
15. The learned counsel also relied upon the judgment of
the Apex Court in the case of AMAZON.COM NV INVESTMENT
HOLDINGS LLC v. FUTURE RETAIL LIMITED AND OTHERS
reported in (2022) 1 SCC 209 and brought to the notice of this
Court paragraph Nos.56, wherein discussed with regard to Order
39 Rule 1, 2 and 2A. The learned counsel also brought to the
notice of this Court paragraph Nos.57 and 58, i.e., reading of
Order 39 Rules 2(3) and 2(4) as it originally stood and
consequences. Referring to the judgment of the Apex Court
reported in (2009) 5 SCC 665, extracted paragraph No.38 and in
paragraph No.61 discussed with regard to exercising power
under Order 39 Rule 2A is punitive in nature and akin to the
power to punish for civil contempt.
16. The learned counsel referring this judgment would
contend that this Court cannot invoke Order 39 Rule 2A of CPC
and sale made is not in respect of the suit schedule property and
the same is in respect of written statement schedule property.
17. Having heard the respective learned counsel and also
on perusal of the material available on record, it is the claim of
the plaintiff that the suit schedule property was originally
granted in favour of Sanjeevaiah and in turn he sold the same in
the year 1992. The proceedings for resumption of the property
was initiated by the legal representatives of Sanjeevaiah. It is
not in dispute that the property was resumed and thereafter the
same was set aside by the Special Deputy Commissioner. It is
important to note that specific claim of the defendants is that the
property was purchased by the plaintiff vide sale deed dated
09.06.1992 and thereafter he has executed a registered general
power of attorney on 20.07.1999 in favour of REMCO (BHEL)
House Building Co-operative Society Ltd.) and they formed the
layout and sold the sites in favour of various purchasers in the
year 2001 and subsequent years. There is no dispute with
regard to the initiation of the proceedings. The appellant has
produced some of the documents, even after granting of
temporary injunction, sale deeds are executed and those
documents are placed before the Court. It is important to note
that the defendants also filed an application before the BBMP to
furnish the khatha certificate in respect of the property bearing
No.3555/10/68 and after verification, the BBMP authorities have
issued an endorsement on 27.06.2022 stating that there is no
such khatha certificate. It is important to note that other suits
have been filed before the Court by the plaintiffs as well as the
vendors of the plaintiff and no relief has been granted. It is
important to note that the defendants have also filed a suit and
injunction has been granted in their favour. It is also important
to note that the defendants claim the property through one
Muniyappa and contend that he is the original grantee and
dispute is in respect of old Sy.No.10 and new Sy.No.68. The
Tahsildar also issued an endorsement with regard to the letter
dated 25.04.2022, stating that they have not issued the
documents, which have been produced before the Trial Court.
18. Having perused the documents available on record, it
is clear that the power of attorney was executed by the plaintiff
in favour of REMCO (BHEL) House Building Co-operative Society
Ltd.) and the said power of attorney is a registered power of
attorney to deal with the property. Based on the power of
attorney, REMCO (BHEL) House Building Co-operative Society
Ltd.,) sold the sites formed in Sy.No.68 measuring 3 acres. This
fact is taken note of by the Trial Court while passing the order
and comes to the conclusion that based on the power of
attorney, sites are formed and sold the sites. The plaintiff is not
in possession of the suit schedule property though it is
purchased vide sale deed dated 09.06.1992 from Sanjeevaiah
and his sons. The Trial Court also taken note of the suits filed by
the legal heirs of the vendors of the plaintiff in respect of the suit
schedule property in O.S.No.3124/2022 and no such relief is
granted. The defendants have filed the documents of sale deed,
which clearly reveals that the purchasers have constructed the
residential building in their sites.
19. The learned counsel for the appellant contend that
the original grantee father's name is different. It is important to
note that the vendor of the plaintiff and their family members
have filed a suit in O.S.No.4806/2020 and subsequently the
same was withdrawn and also filed one more suit and in none of
the cases they have got any relief. When the dispute is with
regard to the very same property claimed by the plaintiff and the
defendant and claimed through different grantees and when
there is a cloud over the title of the property, the very suit for
bare injunction and interalia, relief of temporary injunction,
cannot be considered. The Trial Court has also taken note of the
fact that the plaintiff has suppressed the material facts with
regard to the earlier suit filed by him and also filed by their
vendors. There is a dispute with regard to the revenue
document of khatha certificates and endorsements are also
issued that no such khathas are in existence and the same is
also taken note of by the Trial Court while passing the order of
rejection of I.A. Hence, I do not find any error committed by the
Trial Court in rejecting the application, when there is a cloud
over the title.
20. The other contention of the appellant is that the
interim order granted by this Court is violated and produced
some documents. The claim is made by the plaintiff in respect
of the suit schedule property through Sanjeevaiah and the said
property was sold by Sanjeevaiah in favour of the plaintiff. The
defendants also contend that the very plaintiff had executed the
power of attorney. The defendants claim their right in respect of
the written statement schedule property and they are claiming
through other grantee. When such dispute is there, whether the
sale is made in respect of the property of the plaintiff or in
respect of the written statement schedule property, the same
requires enquiry. Hence, this Court cannot invoke Order 39 Rule
2A of CPC when there is a dispute with regard to the property
and when there is a cloud over the title and the suit is also for
the relief of bare injunction. Hence, I do not find any ground to
invoke Order 39 Rule 2A of CPC and no grounds are made out to
set aside the order of Trial Court in dismissing the I.A. filed
under Order 39 Rules 1 and 2 of CPC.
21. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
MD
