Karnataka High Court
Uppalapati Gangabhavani vs Y. Jayaprada W/O Leelaprasad on 7 November, 2024
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NC: 2024:KHC-D:16262-DB
RFA No. 100304 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100304 OF 2020
BETWEEN:
SMT.UPPALAPATI GANGABHAVANI,
W/O LATE U.ADINARAYAN RAO,
AGE: 74 YEARS, OCC: AGRICULTURIST,
R/O: SRIRAMANAGAR, TQ: GANGAVATHI,
DIST: KOPPAL-583231.
...APPELLANT
(BY SRI VINAY S.KOUJALAGI, ADVOCATE)
AND:
1. SMT. Y. JAYAPRADA,
Digitally signed by W/O. LEELAPRASAD,
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
AGE: 61 YEARS, OCC: HOUSEHOLD,
COURT OF
KARNATAKA
Date: 2024.11.13
12:10:01 +0530
R/O: VICTORY HOUSE WARD NO.29,
RAJIV NAGAR, HOSPET,
TQ: HOSPET,
DIST: BALLARI-583201.
2. P. VENKATAKRISHNA,
S/O. P. SATYANARAYANA,
AGE: 30 YEARS, OCC: AGRICULTURIST,
R/O: H.S. NO:164/2, BLOCK NO.1
SRIRAMANAGAR-2,
TQ: GANGAVATI,
DIST: KOPPAL-583227.
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RFA No. 100304 of 2020
3. D. SATYANARAYANARAJU,
S/O. SURYANARAYANARAJU,
AGE: 42 YEARS, OCC: AGRICULTURIST,
R/O: KESAKKI HANCHINAL
TQ: GANGAVATI, DIST: KOPPAL-583227.
4. C. DURGA RAO S/O. LACHCHAYYA,
AGE: 42 YEARS, OCC: AGRICULTURIST,
R/O: BARGUR CAMP,
TQ: GANGAVATI,
DIST: KOPPAL-583227.
5. SOUTH INDIAN BANK LIMITED,
REP.BY AUTHORIZED OFFICER,
SRI. T.P. OUSEPH,
S/O. T.M. PORINCHU,
REGIONAL OFFICE, MUMBAI,
MAHARASHTRA STATE-400001.
...RESPONDENTS
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W. SECTION
96 OF CPC., PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
09-10-2013 IN ALLOWING I.A. NO. V FILED BY THE RESPONDENT
NO. 2 TO 5 IN O.S. NO.48/2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE COURT GANGAVATHI AND RESTORE THE SUIT ON ITS FILE
BY REJECTING THE I.A.NO.V, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
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RFA No. 100304 of 2020
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR)
The plaintiff has preferred this appeal challenging the
order passed by the Senior Civil Judge, Gangavathi, rejecting
the plaint in O.S.No.48/2012 exercising power under Order
VII Rule 11(d) of the Code of Civil Procedure.
2. The plaintiff claimed the following reliefs:
(i) That the illegal map prepared by the
defendant No.1 in sy.no. 89/B in respect of
her alleged share and measurement of plots
shown is not binding on the plaintiff.
(ii) The measurement of the plots shown in sale
certificate dated 29-12-2011 bearing
document No. 4931/11-12 executed by the
defendant No.5 in favour of defendant No.2
to 4 on the basis of the fabricated map are
not binding on the plaintiff.
(iii) Perpetual injunction restraining the
defendants, their men, agents interfering
with the peaceful possession and enjoyment
of the plaintiff over her share in sy.no.89/B
including the enjoyment of 21 feet width
road situated in between the share of the
plaintiff and defendant No.1 and also 7 ½
feet road totally measuring 15' towards the
west of defendant No.1's share left by the
propositors of the plaintiff and defendant
No.1 with Byadagi Basappa.
(iv) Such other decree for which the plaintiff
deemed fit under the future circumstances
of the case in the interest of justice and
equity.
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3. The pleaded facts show that plaintiff is the
mother of 1st defendant. It appears that 1st defendant
borrowed money from defendant No.5 and when she
defaulted to repay, the 5th defendant initiated action under
the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act (for short, 'SARFAESI
Act'). Ultimately the mortgaged property was sold to
defendants No.2 to 4 for a sum of Rs.1,12,55,555/- and in
this connection sale certificate was issued on 29.11.2011. It
is stated that defendants No.2 to 4 with the help of
defendant No.1 tried to encroach upon 21 feet width road
situated between the property of the plaintiff and the
property of 1st defendant and also another road measuring
15 feet in width situated towards the west of the property of
defendant No.1 in Sy.No.89/B of Sriramanagar village. She
stated that on account of this interference, she suffered loss
to her property because the layout said to have been formed
by defendant No.1 was illegal. There is also allegation that
defendant No.1 had not deducted 10278 sq.ft. of space sold
by one U.Adinarayana Rao, the husband of the plaintiff and
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father of defendant No.1 and that defendant No.1 could not
have formed a layout consisting of plots measuring 60 ft. X
60 ft. without deducting the space required for internal
roads.
4. The Trial Court observed that the plaintiff did not
challenge the map when she stated that the map of the
layout was illegal and did not bind her interest. Therefore the
Trial Court is of the opinion that indirectly the plaintiff
challenged sale certificate issued by bank by twisting the
facts with a confused state of mind. In this view the
provisions of SARFAESI Act can be invoked to state that the
Civil Court has no jurisdiction and only remedy available to
the plaintiff was to approach the Debt Recovery Tribunal
under Section 17 of the SARFAESI Act.
5. We have heard Sri Vinay S.Koujalagi, learned
counsel for the appellant. His submission is that the Trial
Court should not have rejected the plaint under Order VII
Rule 11(d) of CPC inasmuch the plaintiff does not dispute the
auction held by the bank and infact she was in no way
concerned with the auction because her daughter i.e.
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defendant No.1 borrowed money from 5th defendant-bank
and when she defaulted in repayment, 5th defendant had to
take recourse to law. About this action, the plaintiff has no
grievance. He submits that the main purpose of filing the suit
was that the 1st defendant tried to change the layout by
forming plots in the road situate in between the plaintiff's
property and the 1st defendant's property. The plaintiff
wanted that the road should be maintained and for this
reason she approached the Civil Court for preservation of the
road.
6. If we consider the submission of Sri Vinay
S.Koujalagi now and compare the same with the plaint
averments, we find that the plaintiff actually wants to
frustrate the auction sale in the guise of challenging the
layout plan. If according to her, the layout was illegal and
that the roads were converted into plots, she could have
approached the competent authority under Karnataka Town
and Country Planning Act with a complaint that the layout
had been formed illegally and that the roads left therein were
converted into plots. This is a matter to be decided by the
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concerned authorities under the special law. Civil Court
cannot decide such aspects. In para 10 of the plaint it is
stated that defendants No.2 to 4 made an attempt to lay
their hands on the property of the plaintiff by totally blocking
the eastern and western side of the road though they had no
rights at all. They tried to interfere on the basis of fabricated
map and the sale certificate. All that we can opine is that it is
a clever drafting to defeat the sale certificate issued by bank
pursuant to auction held according to SARFAESI Act.
7. If the grievance of the plaintiff was with respect
to interference by defendants No.1 to 4 illegally, there was
no need to make bank a party to the suit. Although Sri Vinay
S.Koujalagi submits that the plaintiff has no objection for the
auction sale, that submission cannot be accepted for the
reason that the bank was to be made a party to the suit
because the sale certificate was also illegal according to the
plaintiff. What we find is clear intention of the plaintiff to
defeat the auction. Therefore exercise of jurisdiction under
Order VII Rule 11(d) of CPC by the Trial Court is proper and
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justifiable. We don't find any ground to admit this appeal.
Hence, appeal is rejected.
Liberty is given to the plaintiff to approach the
appropriate authority for redressal of her grievance with
regard to layout. All pending I.As. are disposed of.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(T. G. SHIVASHANKARE GOWDA)
JUDGE
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