Karnataka High Court
Sri Balamurali Krishnamurthy vs Sri K N Vishwanath on 7 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 6358 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.6358 OF 2024 (CPC)
BETWEEN:
1. SRI BALAMURALI KRISHNAMURTHY,
S/O KRISHNAMURTHY LAKSHMANAN,
AGED ABOUT 44 YEARS,
R/AT FLAT NO.B1-056,
DLF WESTEND HEIGHTS APARTMENT,
AKSHAYA NAGAR, BANGALORE SOUTH,
BANGALORE - 560 068.
...APPELLANT
(BY SRI. VARADARAJAN M.S., ADVOCATE)
AND:
1. SRI K.N.VISHWANATH,
S/O LATE NARAYANASWAMY,
Digitally signed
by DEVIKA M AGED ABOUT 61 YEARS,
Location: HIGH R/AT NO.285, 6TH MAIN,
COURT OF 4TH CROSS, BCC LAYOUT,
KARNATAKA NEAR CHANDRA LAYOUT,
DOUBLE WATER TANK ROAD,
VIJAYANAGAR,
BANGALORE-560 040.
2. SMT. SAROJAMMA,
W/O LATE CHENNAPPA @CHINNAIAH,
AGED ABOUT 77 YEARS.
3. SMT. JYOTHI,
W/O LATE NAGARAJ C.,
AGED ABOUT 47 YEARS.
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MFA No. 6358 of 2024
4. SAHANA,
D/O LATE NAGARAJ C.,
AGED ABOUT 28 YEARS.
5. HEMANTH KUMAR,
S/O LATE NAGARAJ C.,
AGED ABOUT 25 YEARS.
6. KODHANDARAMU C.,
S/O LATE CHANNAPPA @ CHINNAIAH,
AGED ABOUT 50 YEARS.
7. SMT. JYOTHI LAKSHMI,
W/O KODHANDARAMU C.,
AGED ABOUT 35 YEARS.
8. PRAJWAL,
S/O KODHANDARAMU C.,
AGED ABOUT 19 YEARS.
9. YESHWANTH,
S/O KODHANDARAMU C.,
AGED ABOUT 16 YEARS
RESPONDENT NO.9 IS MINOR,
REPRESENTED BY HIS FATHER AND NATURAL
GUARDIAN SRI KODHANDDARAMU C.,
(RESPONDENT NO.6)
10. GOWRAMMA,
D/O LATE VENKATARAMANAPPA,
AGED ABOUT 62 YEARS.
11. SMT. MANJULA,
W/O LATE LAKSHMAN,
AGED ABOUT 62 YEARS.
12. ASHWINI,
D/O LATE LAKSHMAN,
AGED ABOUT 35 YEARS.
13. SRI VENKATESH,
S/O LATE LAKSHMAN,
AGED ABOUT 32 YEARS.
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MFA No. 6358 of 2024
14. PARVATHAMMA,
D/O LATE VENKATARAMANAPPA,
AGED ABOUT 57 YEARS.
15. SMT. NIRMALA,
W/O LATE NARAYANAPPA,
AGED ABOUT 52 YEARS.
16. SMT. MANJAMMA,
W/O LATE NARAYANAPPA,
AGED ABOUT 47 YEARS.
17. SRI NAVEEN,
S/O LATE NARAYANAPPA,
AGED ABOUT 22 YEARS.
18. DIVYA,
D/O LATE NARAYANAPPA,
AGED ABOUT 17 YEARS,
RESPONDENT NO.18 IS MINOR,
REPRESENTED BY HER MOTHER
AND NATURAL GUARDIAN
SMT. MANJAMMA (RESPONDENT NO.16).
19. SRI NAGARAJ,
S/O LATE VENKATARAMANAPPA,
AGED ABOUT 52 YEARS.
20. SMT. BHAGYAMMA,
D/O LATE SWARNAMMA,
W/O NAGARAJ,
AGED ABOUT 47 YEARS.
21. SRI VINAYA,
S/O NAGARAJ,
AGED ABOUT 27 YEARS.
22. SRI BHARATH,
S/O NAGARAJ,
AGED ABOUT 25 YEARS.
RESPONDENTS 2 TO 22 ARE
R/AT BEGUR VILLAGE AND HOBLI,
BENGALURU SOUTH TALUK-560 068.
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MFA No. 6358 of 2024
23. SRI. C.N.KRISHNAMURTHY,
S/O THOGURU NAGARAJA REDDY,
AGED ABOUT 36 YEARS,
R/AT NO.69, VITTASANDRA ROAD,
LAKSHMI LAYOUT, BEGURU VILLAGE,
BENGALURU- 560 068.
24. SRI. V.NAGARAJA,
S/O LATE VENKATAPPA,
AGED ABOUT 78 YEARS.
25. SMT. MAMATHA NAGARAJ,
D/O V.NAGARAJA,
W/O SATHISH NARAYANA REDDY,
AGED ABOUT 39 YEARS.
RESPONDENTS 24 AND 25 ARE
R/AT NO.14, 'ESHWARI NILAYA'
1ST CROSS, THIMMAPPA REDDY LAYOUT,
HULIMAVU GATE, B.G.ROAD,
BENGALURU-560 076.
26. SRI. R.THANIGAI MALAI,
S/O LATE RAMAMURTHY,
AGED ABOUT 61 YEARS,
R/AT NO.629, 1ST CROSS, 7TH MAIN,
VIJAYA BANK LAYOUT, B.G.ROAD,
BENGALURU- 560 076.
27. SRI. PRABHAKARA REDDY,
S/O LATE R.KRISHNA REDDY,
AGED ABOUT 56 YEARS,
R/AT NO.2250, 15TH 'C' CROSS,
22ND 'B' MAIN,
1ST SECTOR, HSR LAYOUT,
BENGALURU- 560 102.
28. SRI. HEMARAM CHOUDHARY VENARAM,
S/O SRI. VENARAM CHOUDHARY,
AGED ABOUT 38 YEARS,
R/AT NO.2, JOGITH NIWASH,
VENKATESHWARA LAYOUT, KUDLU,
BENGALURU-560 068.
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MFA No. 6358 of 2024
29. SRI. SAMPANGI REDDY,
S/O SRI. THIMMARAYAPPA,
AGED ABOUT 48 YEARS.
30. SMT. SWETHA,
W/O SAMPANGI REDDY,
AGED ABOUT 39 YEARS.
RESPONDENTS 29 AND 30 ARE
R/AT NO.1023, MASJID STREET,
BEHIND MASJID, BEGUR,
BENGALURU SOUTH TALUK,
BENGALURU-560068.
31. SRI. SETHU RAMA RAJU @ KRISHNA RAJU,
MAJOR, R/AT NO.699, 13TH MAIN,
2ND CROSS, VIRATANAGARA,
BOMMANAHALLI,
BENGALURU-560 068.
32. STATE BANK OF INDIA,
R.A.C.P.C.-III, BANASAWADI BRANCH,
NO.7M/422, MARUTHI MANSION,
80 FEET ROAD, KALYAN NAGAR,
OPPOSITE HRBR LAYOUT, 1ST BLOCK AND
BANASWADI CLUB, BANASWADI,
BENGALURU-560 043,
REP. BY CHIEF MANAGER.
...RESPONDENTS
(BY SRI. A.MADHUSUDHANA RAO, ADVOCATE C/R1 ON
I.A.No.4)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 17.08.2024 PASSED ON I.A. NO.4
IN O.S.NO.4307/2022 ON THE FILE OF THE XXXVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-39), ALLOWING THE I.A.NO.4 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:
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MFA No. 6358 of 2024
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard, the learned counsel for the appellant and the
learned counsel for respondent No.1.
2. This miscellaneous first appeal is filed against the
order of the Trial Court dated 17.08.2024 passed on
I.A.No.4/2024 filed under Order 39 Rules 1 and 2 read with
Section 151 of CPC in O.S.No.4307/2022 restraining the
defendant No.31/appellant from putting up the construction in
the suit schedule 'A' property, till the disposal of the suit.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that the plaintiff had filed a suit for the relief of
declaration to declare that the sale deeds dated 04.05.2022,
20.06.2018, 30.10.2021 and 25.03.2019 executed by defendant
Nos.1 to 21 in favour of defendant No.22 and in turn defendant
No.22 executing sale deed in favour or defendant No.23 and
defendant No.23 in turn in favour of defendant No.24 and also
defendant No.22 executing the sale deed in favour of defendant
Nos.26 to 29, are illegal and void. The plaintiff also filed an
application for amendment in respect of the sale made in favour
of the appellant and the said application is pending for
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consideration. In the meanwhile, an application is filed seeking
a restrained order against the appellant/defendant No.31 that
he had taken up the construction work contending that the suit
schedule property, which is morefully described in the schedule
has been purchased by the plaintiff under the sale deed dated
17.05.1995 from Chinnappa, who is the power of attorney
holder of all the family members of Siddamma i.e., defendant
Nos.1 to 21. Ever since the purchase, khatha has been affected
in his name and khath No.25 is reflected in the encumbrance
certificate from 1994 to 2004 and so also from 01.04.2004 to
31.03.2016 and he is paying taxes to the concerned department
from time to time. After filing of the above suit against
defendant Nos.1 to 30, he recently came to know about
defendant No.24 has executed the sale deed in favour of
defendant No.31 and he was attempting to put up construction
on the suit schedule 'A' property and when he questioned, he
contended that he has purchased the suit schedule property
from defendant No.24 vide sale deed dated 14.09.2022.
Thereafter, on enquiry, he came to know that defendant No.31
on 18.04.2024 has executed a deposit of title deed in favour of
defendant No.32 in respect of suit schedule 'A' property. Hence,
he filed a complaint with the jurisdictional police and no action
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was taken on the ground that the same is a civil dispute and
directed to approach the Court. The defendant No.24
intentionally and deliberately committed fraud by alienating the
suit schedule property in favour of defendant No.31 during the
pendency of the suit filed against him and in this background
the plaintiff sought for the relief of temporary injunction against
defendant No.31.
4. The learned counsel for defendant No.31 filed a
memo stating that the written statement of defendant No.31
may kindly be considered as objections to I.A.No.4/2024. In the
statement of objections, it is contended that the plaintiff has
sworn to a false affidavit stating that he is the owner in
possession of schedule 'A' property. It is specifically contended
that he has purchased the property through a registered sale
deed dated 14.09.2022 and he became the owner of the
property and he started the construction. The plaintiff can
workout his remedy, if any, by way of separate suit against
defendant No.31 and the application filed against defendant
No.31 is not maintainable. Apart from that, not specifically
pleaded and shown any material before the Court that 'C'
schedule property is part of 'B' schedule property and 'A'
schedule property also comes within 'B' schedule property and
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also 'C' schedule property is different and he has already taken
up the construction and cannot seek any relief of temporary
injunction.
5. The Trial Court having considered the grounds urged
in the application and also the objection statement, formulated
the points whether the plaintiff has made out a prima facie case
for grant of temporary injunction, whether the balance of
convenience lies in favour of the plaintiff and whether
irreparable loss any injury would be caused to the plaintiff if an
order of temporary injunction is not granted. The Trial Court
having taken note of the material on record and also the
pleadings and objections, comes to the conclusion that the
property was purchased by the plaintiff in the year 1995 and
defendant Nos.1 to 21 are the parties to the general power of
attorney executed in favour of Chinnappa, who is also the family
member of the original owner Siddamma. Apart from that, the
power of attorney was executed and the said power of attorney
holder formed the site in the very same Sy.No.9 and sold the
property and when interference of the defendants was found, at
the first instance suit was filed against defendant Nos.1 to 30
and subsequently on interference of defendant No.31, an
application is filed for impleading and impleading application was
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allowed and contested the matter. The Trial Court also taken
note of the fact that defendant No.24 had sold the property in
favour of defendant No.31 subsequent to the filing of the suit.
The Trial Court also taken note of Section 52 of the Transfer of
Property Act and extracted the same in paragraph No.21 of its
order and in paragraph No.23 comes to the conclusion that the
matter requires to be adjudicated and that the plaintiff has
made out a prima facie case and balance convenience lies in
favour of the plaintiff and if construction is not prevented, it will
lead to multiplicity of proceedings and irreparable loss will be
caused to the plaintiff and he will be put to hardship and if
further construction is allowed, it will lead to causing of
prejudice to the plaintiff and hence allowed the application and
restrained order has been passed.
6. Being aggrieved by the same, the present appeal is
filed by the appellant/defendant No.31 contending that
Siddamma had purchased 3 acres 2 guntas of land in Sy.No.9
from Aminabi under the sale deed dated 20.07.1938 and
admitted the same. However, denied the execution of power of
attorney in favour of Chinnappa by the children of
Balavenkataramanappa said to be dated 01.03.1995 and the
claim of the plaintiff that they have purchased the property
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under the sale deed dated 17.05.1995 is also denied. It is
contended that defendant Nos.1 to 21 have sold the property on
04.05.2012 in favour of defendant No.22 and defendant Nos.1
to 21 succeeded to the land in question and they were having
right to execute the sale deed in favour of defendant No.22 in
respect of 'B' schedule property and revenue entries are also
found in respect of defendant No.22. The defendant No.22 got
converted the land in 2015 and conversion fee of Rs.3,40,000/-
was paid and sold a portion of 'B' schedule property i.e., 'C'
schedule property in favour of defendant No.23 and defendant
No.23 got changed the records in his favour and gifted the
property in favour of defendant No.24 and defendant No.24 sold
the property in favour of this appellant and all these documents
clearly shows that the title goes in favour of defendant
No.31/appellant.
7. The learned counsel contend that the Trial Court
committed an error in holding that the plaintiff holds the sale
deed dated 17.05.1995 in respect of 'A' schedule property and
made out a prima facie case. The learned counsel contend that
unless the identity and location of the property is established by
the plaintiff beyond any doubt, the Trial Court ought not to have
granted the relief of temporary injunction. It is also contended
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that the Trial Court committed an error in holding that khatha
and revenue documents in respect of 'A' schedule property
stands in the name of the plaintiff and he is paying the tax and
the same cannot be a basis to come to the conclusion that the
plaintiff has made out a prima facie case. The learned counsel
contend that the Trial Court committed an error in relying upon
the document dated 17.05.1995 without even caring to find out
what was the right of the plaintiff's vendor to execute the sale
deed, more particularly when it is admitted that the entire
survey number originally belongs to Siddamma and defendant
Nos.1 to 21 are the legal heirs of the said Siddamma. The
learned counsel contend that while passing the order of
temporary injunction, the Trial Court has not taken note of the
fact that already construction was started and defendant No.31
also produced two photographs before the Trial Court that
already two floors building, including ground floor has come up
and inspite of that, the Trial Court fails to take note of the same
and committed an error in passing the restrained order. The
remedy to the plaintiff is to seek for appropriate relief for
demolition of the constructed building and the Trial Court fails to
take note of exercising discretion in favour of the defendant
No.31/appellant, who had already invested huge money by
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borrowing loan from defendant No.32 and hence it requires
interference of this Court.
8. The learned counsel for the appellant in support of
his arguments relies upon the order passed by this Court in the
case of MALAR VENI v. RAMAMURTHY reported in LAWS
(KAR)-2023-9-50 and brought to the notice of this Court
paragraph No.20, wherein this Court has observed that there is
a clear dispute with regard to the identity of the property and
the plaintiff also produced some of the documents with regard to
the title is concerned and defendant also placed the document
that originally property belongs to their ancestors and there was
a partition in the family and they are in possession of the
property by constructing the building and also produced the
rental agreement as well as the electricity bill. The very
contention of the appellant's counsel that the Court can direct
both the parties to maintain status quo was not accepted and
comes to the conclusion that when there is a clear dispute with
regard to the identity of the property, the question of granting
interim order was declined and hence the factual aspects of this
case is applicable to the facts of the case on hand and hence
this Court has to set aside the order of the Trial Court and reject
the I.A. filed by the plaintiff.
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9. Per contra, the learned counsel for respondent No.1
would contend that there is no dispute with regard to the fact
that originally the property to an extent of 3 acres 2 guntas
belonged to Siddamma and out of that, 1 acre was sold earlier
and remaining property is 2 acres 2 guntas in respect of original
owner Siddamma. The learned counsel contend that there was
a general power of attorney in favour of Chinnappa, who is none
other than the son of Siddamma and all the legal heirs of the
said Siddamma have executed the power of attorney on
01.03.1995. Based on the said power of attorney, he had
obtained the plan from Begur Panchayat and sold the property
and the plaintiff had purchased 'A' schedule property on
17.05.1995. The learned counsel contend that from the date of
purchase, the plaintiff has been in possession of the property.
The learned counsel contend that when defendant Nos.1 to 21
are parties to the general power of attorney executed in favour
of Chinnappa, they could not have executed any sale deed in
favour of defendant No.22 in respect of 12 guntas of land, which
is morefully described as 'B' schedule property. The learned
counsel contend that defendant No.22 sold the property in
favour of defendant No.23 and defendant No.23 gifted the
property in favour of defendant No.24 and defendant No.24 sold
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the property in favour of defendant No.31. The learned counsel
contend that defendant No.24 sold the property after filing of
the suit and he remained absent in the said suit and thereafter
only sold the property and the Court has to take note of the
conduct of defendant No.24, under whom defendant No.31
claims right.
10. The learned counsel contend that the Trial Court
while passing the order taken note of the sale made by
defendant No.24, who was placed exparte in the original suit
and subsequently selling of the property in favour of defendant
No.31. The Trial Court also taken note of the fact that no
permission is obtained from the Court while selling the property
and even extracted Section 52 of the Transfer of Property Act,
wherein it is specific that only under the authority of the Court
the property can be sold. The learned counsel contend that
when the plaintiff came to know about the property was sold
during the pendency of the suit, immediately he filed an
application in the month of June itself and appeared through
counsel, but did not oppose the application for impleadment.
Later on, after allowing of the application came up with the
written statement and also filed objections and the same is with
an intention to protract the proceedings to go on with the
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construction work and now cannot claim equity contending that
he had constructed the building to the extent of 2 floors. The
Trial Court having taken note of all these factors into
consideration and considering the material on record passed the
order. The learned counsel brought to the notice of this Court
that defendant Nos.1 to 21 have executed a confirmation deed
in respect of the sale made by Chinnappa and also they have
admitted the very execution of power of attorney in favour of
the said Chinnappa and selling of the property by Chinnappa in
favour of prospective purchasers. The learned counsel brought
to the notice of this Court the boundaries, which have been
mentioned in the sale deed of the year 2012 in respect of 'B'
schedule property and also in respect of 'C' schedule property
which the appellant/defendant No.31 is claiming and contended
that in all the documents, khatha number is mentioned as 35
and survey number is mentioned as Sy.No.9 making only the
house list number and assigning the same and cannot contend
that the suit schedule property cannot be identified as part of 'B'
schedule property. The learned counsel brought to the notice of
this Court document No.4 plan, which was approved by the then
Begur Panchayat, wherein site numbers are mentioned and also
marked the portion of 'B' schedule property which includes the
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site which the plaintiff had purchased from Chinnappa and hence
cannot contend that the property is in dispute and no
identification, cannot be accepted. The learned counsel brought
to the notice of this Court that the sale deed in favour of
defendant No.31 was executed on 14.09.2022 and prior to that,
the suit was filed and now cannot claim equity.
11. In reply to the arguments of the learned counsel for
respondent No.1, the learned counsel for the appellant contend
that even the said confirmation deed is also helpful to the
appellant, since defendant Nos.1 to 21 have executed the
confirmation deed in favour of other purchasers and the plaintiff
has not obtained any confirmation deed from defendant Nos.1 to
21. Hence, cannot contend that confirmation deed helps the
plaintiff.
12. Having heard the learned counsel for the appellant
and the learned counsel for respondent No.1 and also
considering the material on record and also the grounds which
have been urged in the appeal memo, the points that arise for
the consideration of this Court are:
(i) Whether the Trial Court committed an error in
granting the relief of temporary injunction
restraining defendant No.31 from putting up
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the construction and whether it requires
interference of this Court?
(ii) What order?
13. Having heard the respective learned counsel, this
Court has already made it clear that there is no dispute with
regard to the fact that originally the property belongs to
Siddamma. It is not in dispute that Siddamma had sold 1 acre
of land long back in the year 1963 and retained 2 acres 2 guntas
of land. It is the claim of the plaintiff that the legal heirs of
Siddamma have executed the power of attorney in the year
1995 in favour of Chinnappa, who is none other than the son of
Siddamma and the legal heirs of Siddamma are parties to the
said power of attorney. The very contention of the plaintiff is
that Chinnappa had formed the layout and sold the sites in the
very same survey number and also sale deed is executed in
favour of the plaintiff and other prospective purchasers. It is
also not in dispute that the appellant/defendant No.31 has
disputed the very power of attorney executed. But the fact
remains before the Court that defendant Nos.1 to 21 have
executed the confirmation deed in favour of other prospective
purchasers admitting the document of power of attorney
executed on 17.05.1995 and confirmed the sale executed by
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Chinnappa in favour of other prospective purchasers. It is
important to note that defendant Nos.1 to 21 have sold the
property to an extent of 12 guntas on 04.05.2012 in favour of
defendant No.22 and already relief is sought against the said
sale deed by the plaintiff seeking the relief of declaration and
consequential sale made by defendant Nos.22 and 23 and other
challenge is made seeking the relief of declaration. When such
comprehensive relief is sought by the plaintiff and when plaintiff
comes to know about the sale made by defendant No.24 in
favour of defendant No.31 during the pendency of the suit, the
Trial Court also taken note of the fact into consideration.
14. It is important to note that there is a dispute with
regard to the title of the plaintiff and defendant No.31, since
defendant No.31/appellant disputes the very power of attorney
and the plaintiff also questioned the very sale made in respect of
'B' schedule property and 'C' schedule property is part of 'B'
schedule property as contended by the plaintiff. The very
contention of the learned counsel for the appellant that the
property is not identifiable cannot be accepted. The fact that
the original owner is Siddamma is not in dispute and there was
a transaction between the legal heirs of Siddamma also is not in
dispute. May be they have disputed the execution of power of
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attorney and there are documents to show that Chinnappa had
formed the layout and sold the property. The plaintiff is also
claiming right through Chinnappa, who was having the power of
attorney to form the layout and sell the property. When the
document of confirmation is also produced before this Court, the
contention of the learned counsel for the appellant that
defendant Nos.1 to 21 have not executed any confirmation deed
in favour of the plaintiff cannot be decided at this juncture. The
Court has to take note of the prima facie case while granting the
relief of temporary injunction whether the plaintiff has made out
a prima facie case. The document of the plaintiff dated
17.05.1995 is executed by one of the legal heirs and based on
the power of attorney executed by other legal heirs even if there
is a dispute with regard to power of attorney also, the same
cannot be considered at this juncture. The Court has to take
note of the prima facie case. The documents stands in the
name of the plaintiff consequent upon the property purchased
from Chinnappa on 17.05.1995. All these documents are taken
note of by the Trial Court while granting the relief of temporary
injunction and also taken note of the fact that if construction is
continued, it will lead to multiplicity of proceedings and hardship
will be caused to the plaintiff and balance of convenience lies in
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favour of the plaintiff and also taken note of Section 52 of the
Transfer of Property Act.
15. The learned counsel for respondent No.1 also
brought to the notice of this Court Section 52 of the Transfer of
Property Act that there is a condition that except under the
authority of the Court and on such terms as it may impose,
Section 52 of the Transfer of Property Act attracts. The
contention of the learned counsel for the appellant is that the
Trial Court committed an error in invoking Section 52 of the Act.
Whether Section 52 of the Act applies and whether the sale is
made without the right, the same cannot be adjudicated while
considering the temporary injunction and the very object of
granting the relief is only with regard to prevent multiplicity of
proceedings. The learned counsel for the appellant brought to
the notice of this Court that already the appellant has taken up
the construction. The material discloses that loan was obtained
in the month of April for construction. No doubt, the property
was purchased in September 2022 and loan was availed from
the bank i.e., defendant No.32 in the month of April and
thereafter he had proceeded to put up the construction when
the application was filed in the month of June itself and prior to
that, the appellant/defendant No.31 dug the borewell and
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thereafter commenced the construction and also application was
filed for impleadment immediately in the month of June. The
records reveals that the appellant/defendant No.31 did not file
any objections to the I.A. and he was absent before the Trial
Court and only after allowing of the application, he filed the
written statement and adopted the objection statement and the
said conduct has to be taken note of. The learned counsel for
respondent No.1 rightly pointed out that the Court has to take
note of the conduct of the appellant and he cannot seek equity
and mere availing of loan from the Bank subsequently and taken
up the construction cannot be a ground to allow the appeal. The
plaintiff/respondent No.1 has made out a prima facie case with
regard to his title is concerned and a comprehensive suit is also
filed for the relief of declaration questioning all the sale deeds
entered into between defendant Nos.1 to 31. The Trial Court
has taken note of the said fact into consideration and hence, I
do not find any error committed by the Trial Court in allowing
the application in passing a restrained order.
16. The very contention of the learned counsel for the
appellant that respondent No.1 can seek the relief for demolition
cannot be accepted, since knowing fully well that the suit is
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pending, an application is filed to implead him in the month of
June itself and he proceeded to put up the construction at his
peril. The learned counsel for respondent No.1 brought to the
notice of this Court that other two writ petitions are filed before
this Court and interim order is also granted. It is rightly pointed
out by the learned counsel for the appellant that in that writ
petitions, the plaintiff and the defendants are not parties and
only the prospective purchasers have filed the writ petitions and
when such being the case, those orders will not come to the aid
of respondent No.1. This Court has to take note of the conduct
of the appellant/defendant No.31, who proceeded to put up the
construction even after impleading him and the sale was made
during the pendency of the suit by defendant No.24 knowingfully
well that the suit is pending and also the Court has to take note
of the conduct of defendant No.24 as well as defendant No.31
and hence the order impugned cannot be interfered and
modified as contended by the learned counsel for the appellant.
There is no merit in the appeal to set aside the order of the Trial
Court and hence I answer the point for consideration in the
negative.
- 24 -
NC: 2024:KHC:44941
17. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
