Karnataka High Court
Sri Chethan vs M/S Rose Garden Housing Developers Pvt ... on 4 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 6250 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.6250 OF 2024 (CPC)
BETWEEN:
1. SRI CHETHAN,
AGED ABOUT 50 YEARS,
S/O LATE SRI. NAGARAJA REDDY,
R/AT NO.352,
CHENNAKESHAVA NILAYA,
BTS MAIN ROAD,
ARAKERE B.G. ROAD,
BANGALORE-560076.
2. SRI. DHANPAL REDDY N,
AGED ABOUT 48 YEARS,
S/O LATE SRI. NAGARAJA REDDY,
R/AT NO.352,
CHENNAKESHAVA NILAYA,
Digitally signed BTS MAIN ROAD,
by DEVIKA M ARAKERE B.G. ROAD,
Location: HIGH BANGALORE-560076.
COURT OF
KARNATAKA 3. SMT. VIJAYALAKSHMI,
AGED ABOUT 69 YEARS,
W/O LATE SRI. NAGARAJA REDDY,
R/AT NO.352,
CHENNAKESHAVA NILAYA,
BTS MAIN ROAD,
ARAKERE B.G. ROAD,
BANGALORE-560076.
...APPELLANTS
(BY SRI. YESHU BABA R. MISHRA, ADVOCATE)
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MFA No. 6250 of 2024
AND:
1. M/S. ROSE GARDEN HOUSING
DEVELOPERS PVT. LTD.,
HAVING ITS REGISTERED OFFICE
AT NO.53, K.H.ROAD,
BANGALORE - 560 027.
REPRESENTED BY ITS
POWER OF ATTORNEY HOLDER
SRI. D. DEVAPRASADAM DASS.
...RESPONDENT
(BY SRI. MAHABALESHWARA G.C., ADVOCATE C/R)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 20.07.2024 PASSED ON I.A. NO.1
IN O.S.NO.7613/2023 ON THE FILE OF THE XIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-28),
ALLOWING THE I.A.NO.1 FILED UNDER ORDER XXXIX RULE 1
AND 2 READ WITH SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and the
learned counsel for the caveator/respondent.
2. The present miscellaneous appeal is filed against the
order dated 20.07.2024 passed in O.S.No.7613/2023 allowing
I.A.No.1 filed under Order 39 Rules 1 and 2 read with Section
151 of CPC, wherein prayer was sought against defendant Nos.1
to 3 restraining them by way of temporary injunction from
causing interference with the plaintiff's peaceful possession and
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enjoyment of the suit schedule 'B' property, pending disposal of
the suit and injunction was granted and hence the
appellants/defendant Nos.1 to 3 are before this Court by filing
this miscellaneous appeal.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that the plaintiff is the absolute owner in
possession of suit schedule 'B' property and sought for
consequently relief of permanent injunction to restrain the
defendants from interfering with the plaintiff's peaceful
possession of suit schedule 'B' property. It is also the
contention of the plaintiff that one Sri S.N. Kashyap was the
absolute owner of the land bearing Sy.No.12/3 measuring an
extent of 1 acre 20 guntas, situated at Arakere Village, Begur
Hobli, Bannerghatta Road, Bengaluru South Taluk, having
purchased the same by way of a registered sale deed dated
10.06.1971 from one Muthappa. After the death of the said
S.N. Kashyap, the said property was inherited by his son Sri
U.N. Kashyap. The said U.N. Kashyap along with M/s. Anan
Properties and Finance company Limited and M/s. Riviera
Apparels and Components Private Limited, constituted
partnership firm named M/s. UNAR Developers on 12.04.1992
for the purpose of construction and allied activities and 20
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guntas of converted land from the aforementioned property was
set aside for the said partnership firm. The partnership firm
purchased the remaining 1 acre of land in Sy.No.12/3. Further,
the firm also purchased land measuring 26 guntas in
Sy.No.38/5. Hence, it is contended that the partnership firm is
the absolute owner of 1 acre in Sy.No.12/3, converted land of
20 guntas in Sy.No.12/3 and 26 guntas (93654 sq. ft.) in
Sy.No.38/5. It is further contended that out of the said 93654
sq.ft. of land, 7742 sq.ft. was acquired by the BDA for widening
of the road and 87120 sq. ft. was retained. Subsequently, the
said firm was reconstituted as the plaintiff Company.
4. It is the contention of the plaintiff that one Sri
Hanumanappa being the owner of land in Sy.No.12/2 measuring
1 acre 9 guntas situated at Arakere Village, Begur Hobli,
Bangalore South Taluk had filed a suit in O.S.No.2294/1991
seeking to declare Sri Hanumappa as the absolute owner of 6
guntas of land in Sy.No.12/2, which came be to dismissed vide
order dated 10.03.2006. Being aggrieved by the same, Sri
Hanumappa filed an appeal before this Hon'ble Court in
R.F.A.No.1241/2006. It is contended that Sri U.N. Kashyap filed
an affidavit swearing to the fact that the defendants are the
rightful owners of land measuring 1 acre 9 guntas in Sy.No.12/2
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as described in the plaint in O.S.No.2294/1991 and further
undertook not to interfere with the defendants' peaceful
possession over such 1 acre 9 guntas by affirming the
possession of the defendants over the same. The Hon'ble Court
was pleased to take note of the said affidavit and vide order
dated 22.11.2022 disposed of the appeal.
5. The defendants appeared and filed the written
statement and adopted the same as objection to I.A.No.1. It is
submitted that on 27.09.2023, defendant No.3 got phoded the
land in Sy.No.12/2 totally measuring 1 acre 9 guntas, wherein
the written statement schedule property was renumbered as
Sy.No.12/4 measuring 6 guntas and the remaining extent of 1
acre 3 guntas remained as Sy.No.12/2. The revenue entries
with respect to both Sy.No.12/2 and Sy.No.12/4 stands in the
name of the defendants. It is also submitted that by claiming to
be the owner of non-existent 6 guntas of land in Sy.No.12/3,
the plaintiff filed the present suit seeking declaratory relief and
the Trial Court after hearing both the parties on I.A.No.1 was
pleased to allow the said application in coming to the conclusion
that the plaintiff has made out a prima facie case against the
defendants.
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6. Being aggrieved by the said order, the present
miscellaneous appeal is filed before this Court.
7. The learned counsel for the appellants would
vehemently contend that the appellants have specifically
disputed the identity of the suit schedule 'B' property having
regard to the boundaries as per the survey sketch produced by
the defendants which is appropriate as per the written
statement schedule property. The learned counsel submits that
the boundaries of suit schedule 'B' property is suffering from
apparent defects and inspite of the incorrect boundaries of the
suit schedule 'B' property, the Trial Court has erred in granting
temporary injunction in favour of the plaintiff. The learned
counsel contend that Sri U.N. Kashyap has filed an affidavit
before this Court in R.F.A.No.1241/2006 and the same is
disposed of making the said affidavit as part of the record. The
Trial Court has not considered the aspect of revenue entries
made out in the name of the defendants with respect to the
written statement schedule property. It is contended that the
Trial Court committed an error in coming to the conclusion that
prima facie case has been made out without reference to the
revenue documents produced by the appellants. The Trial Court
also failed to take note that subject matter of the suit in
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O.S.No.2294/1991 was in respect of Sy.No.12/2 and subject
matter of dispute in O.S.No.7613/2023 was in respect of
Sy.No.12/3. The Trial Court has failed to consider the fact that
the plaintiff has to made out a prima facie case and the very
approach of the Trial Court is erroneous and it requires
interference of this Court. The learned counsel contend that
when the identity of the property is in dispute, the Trial Court
ought not to have granted such a relief. The learned counsel
submits that except referring the sale deed of the year 1971, no
document is placed before the Court to prove the factum of
possession with regard to 6 guntas of land, which is morefully
described in 'B' schedule of the plaint.
8. Per contra, the learned counsel for the
caveator/respondent would contend that the respondent is
claiming right in respect of Sy.No.12/3 to the extent of 1 acre
20 guntas and in respect of Sy.No.38/5 to the extent of 26
guntas. In all, 2 acres 6 guntas. The learned counsel brought
to the notice of this Court that the Trial Court has given a
definite finding in O.S.No.2294/1991, wherein also specifically
the plaintiff sought for the relief of declaration to declare that
the plaintiff is the absolute owner of the suit schedule 'B'
property and specific issue was framed and the same has been
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answered in coming to the conclusion that suit schedule 'B'
property is not portion of suit schedule 'A' property. When such
definite finding is given, cannot claim that the property belongs
to them. The learned counsel contend that an affidavit filed
before this Court in R.F.A.No.1241/2006 is also with regard to
not claiming 1 acre 9 guntas of land and this Court while
disposing of R.F.A., in paragraph No.3 of the order has observed
that the Commissioner appointed before the Trial Court has
given a report that there exists a 6 guntas of land adjacent to
Sy.No.12/3 and it should go to the owner in occupation in
Sy.No.12/3. The learned counsel brought to the notice of this
Court the observation made in view of the categorical report
given by the Court Commissioner who has specifically stated
that the plaintiff is in occupation of 1 acre 9 guntas of land in
Sy.No.12/2, which is subject matter of suit property, the only
apprehension that the plaintiff/appellant had is that other
neighbouring land owners would interfere with his possession,
especially taking advantage of the fact that there is 6 guntas of
additional land available and the appeal is disposed of. The
learned counsel contend that the documents of phodi are
created and suppressed the fact that portion of the land was
acquired by BMRCL and even inspite of it, phodi work was done
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to the extent of 1 acre 3 guntas and also 6 guntas. When such
property is not available to that extent of 1 acre 9 guntas, the
question of reversing the finding of the Trial Court does not
arise. The case of the respondent is very clear to the extent of
2 acres 6 guntas and relief is also sought when an attempt is
made to encroach upon 6 guntas of land, which is morefully
described in the schedule B' property and the Trial Court rightly
appreciated the material on record and it does not require
interference of this Court.
9. Having heard the learned counsel for the appellants
and the learned counsel for the caveator/respondent and also
keeping in view the grounds urged in the appeal memo and also
considering the material placed on record, the points that arise
for the consideration of this Court are:
(i) Whether the Trial Court committed an error in
granting the relief as sought in I.A.No.1 and
whether it requires interference of this Court?
(ii) What order?
10. Having perused the material on record, the plaintiff
claims interim relief in respect of 6 guntas of land, which is
morefully described in 'B' schedule of the plaint and also claims
that these defendants are interfering with their possession to
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the extent of 6 guntas. It is important to note that the
appellants' father had filed a suit in O.S.No.2294/1991. It is
important to note that the suit is filed for the relief of declaration
that the plaintiff is the absolute owner of plaint 'B' schedule
property. The Trial Court having considered the material on
record, dismissed the suit by answering issue No.1 that 'B'
schedule property is not a portion of Sy.No.12/2 of Arakere
Village and he is the owner of the suit schedule property and not
proved and comes to the conclusion that the defendant has
made out a case that 'B' schedule property is included in the
land purchased by his father on 10.06.1971. No doubt, an
appeal is filed before this Court in R.F.A.No.1241/2006 and in
the said appeal, an affidavit is filed by the respondent stating
that they are not claiming any right in respect of 1 acre 9 guntas
of land and now the records also appears that there is an excess
land of 6 guntas. This Court while disposing of
R.F.A.No.1241/2006 taking into note of the affidavit as part of
the record, in paragraph No.3 made an observation with regard
to the Commissioner report, wherein he has given report that
there exists a 6 guntas of land adjacent to Sy.No.12/3 and it
should go to the owner in occupation in Sy.No.12/3. This Court
in paragraph No.4 observed that the Court commissioner has
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specifically stated that the plaintiff is in occupation of 1 acre 9
guntas of land in Sy.No.12/2, which is the subject matter of suit
property and the only apprehension that the plaintiff/appellant
had is that the other neighbouring land owners would interfere
with his possession, especially taking advantage of the fact that
there is 6 guntas of additional land available.
11. Having perused the said order, it is clear that there
is an additional land of 6 guntas, which is adjacent to
Sy.No.12/3. No doubt, the respondent also claims 1 acre 20
guntas in Sy.No.12/3 and also to an extent of 26 guntas in
Sy.No.38/5 and the very dispute is with regard to the
identification of the property is concerned whether it comes
within Sy.No.12/2 or it is a part of Sy.No.12/3, since the
respondent claims that they have purchased the property to the
extent of 1 acre 20 guntas in Sy.No.12/3. On the other hand, it
is the claim of the plaintiff that he was the owner of 1 acre 9
guntas. It is not in dispute that a portion of the property was
acquired by BMRCL and the same has not been disputed by the
learned counsel for the appellants. When there is a dispute with
regard to the very identity of the property, whether it comes
within Sy.No.12/2 or Sy.No.12/3, the same has to take place
only after considering full-fledged trial and there is an
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observation in the Commissioner report in the earlier suit that
there is an excess land of 6 guntas and it appears that both of
them are fighting for the excess land of 6 guntas, which has
been indicated in the earlier Commissioner report and this Court
also taken note of the same in disposal of R.F.A. filed before this
Court against the dismissal of suit filed by the appellants. It has
to be noted that when the suit was filed by the appellants in the
earlier suit, they were unsuccessful to the extent of claiming 6
guntas of land claiming that the same is part of 'A' schedule
property. When such being the case, I do not find any error
committed by the Trial Court in granting the relief of temporary
injunction and the same has to be adjudicated and the fact that
the appellants have lost some portion of the property to the
BMRCL is not in dispute and the question of being in possession
to the extent of 1 acre 9 guntas, since he is not claiming more
than 1 acre 9 guntas and when a portion of land was acquired
by BMRCL, what is the extent of land remaining in Sy.No.12/2
also to be considered by the Trial Court. When such being the
case, I do not find any error committed by the Trial Court to
interfere with the findings of the Trial Court and the respondent
claims only to an extent in Sy.No.12/3 and their claim is also
injunction in respect of Sy.No.12/3 to an extent of 1 acre 20
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guntas and hence the appellants are restrained from interfering
with 'B' schedule property, which is morefully described as part
of Sy.No.12/3 and not Sy.No.12/2. The issue is with regard to
Sy.No.12/2 to an extent which is remaining and when the relief
is granted in terms of I.A.No.1 in respect of Sy.No.12/3 and the
appellants are claiming the said property as Sy.No.12/2 and
when the relief is granted by the Trial Court in respect of
Sy.No.12/3, it does not require interference and it will not affect
the right of the appellants, since the appellants are not claiming
any right in respect of Sy.No.12/3 and hence it does not require
any interference. Regarding claim of the plaintiff that it comes
within Sy.No.12/2 also to be adjudicated in view of the identity
of the property is in dispute. Hence, no merit in the appeal.
12. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
