Karnataka High Court
Ajitnath Suppliers Private Limited vs Sri. A. K. Jacob on 8 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 3735 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 3735 OF 2024 (CPC)
BETWEEN:
AJITNATH SUPPLIERS PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.135A, C R AVENUE,
NO 36, 4TH FLOOR,
KOLKATA - 700 007
REPRESENTED BY ITS AUTHORISED REPRESENTATIVE
MR.SANTHOSH S.
S/O. SAMBASIVAN S.
AGED ABOUT 45 YEARS
...APPELLANT
(BY SRI. NANJA REDDY P.N., ADVOCATE)
AND:
SRI. A. K. JACOB
S/O LATE A V KOCHUMMEN
AGED ABOUT 72 YEARS,
R/AT NO 33, MYADARAHALLI VILLAGE
Digitally signed by
REKHA R SAPTHAGIRI LAYOUT,
Location: High Court
of Karnataka YESHWANTHAPURA HOBLI,
BENGALURU NORTH TALUK
...RESPONDENT
(BY SRI. BIPIN HEGDE, ADVOCATE FOR C/R ON I.A.NO.1)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 16.04.2024 PASSED ON
I.A.NO.1 IN O.S.NO.4718/2023 ON THE FILE OF THE XX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
(CCH-32), DISMISSING IA NO.1 FILED UNDER ORDER 39 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. 3735 of 2024
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for appellant and also learned
counsel appearing for respondent.
2. Though the matter is listed for admission, heard
with the consent of both the parties on merits.
3. This Miscellaneous appeal is filed against the
rejection of application under Order 39 Rule 1 and 2 r/w
Section 151 of C.P.C, which is numbered as I.A.No.I.
4. The factual matrix of the case of the
plaintiff/appellant before the trial Court is that he is the
absolute owner in possession of suit schedule property and
same was purchased on 22.07.2016 from vendor
K.V.Naidu. The said vendor had purchased the property
from his vendor one L.Venkatesh who represented by his
GPA holder K.Hari through a registered sale consideration
deed dated 03.05.2012. The vendor L.Venkatesh had
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purchased the suit schedule property from his vendor
A.Pillappa. Vendor A.Pillappa was represented by his GPA
holder Sannamma through a registered sale deed dated
09.11.2006. The family members of A.Pillappa have also
executed the sale deed in favour of L.Venkatesh on
different dates confirming the sale deed dated 09.11.2006.
It is contended that after purchasing the property they
have approached BBMP for transfer of Khatha and same
has not been transferred. Hence, W.P.No.8415/2023 was
filed and this Court directed the concerned authority to
consider the representation and to make Khatha in the
name of their company and the same is pending before
the BBMP.
5. It is also contended that the representative of
the plaintiff company contend that without having any
manner of right, title or authority over the suit schedule
property, the defendant started interfering with the
peaceful possession and enjoyment of the suit schedule
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property and made efforts to trespass on 10.07.2023 and
hence, filed the suit.
6. Per contra learned counsel for respondent filed
written statement contending that the suit is not
maintainable and plaintiff also approached the Court
suppressing the facts and hence, sought for dismissal of
the appeal.
7. It is contended that plaintiff deliberately
suppressed the fact of pendency of the earlier suits,
pertaining to the land bearing Sy.No.33, 33/1 of
Medarahalli Village, Yeshvanthapur Hobli, Bengaluru. In
O.S.No.3623/2023 filed by plaintiff's alleged predecessor
in title L.Venkatesh against K.Hari the alleged GPA holder
of L.Venkatesh, K.V.Naidu, alleged vendor of plaintiff and
Ajithnath Suppliers Private Limited, the plaintiff herein. It
is contended that he had filed suit bearing
O.S.No.3535/2021 and the alleged predecessor in title of
the plaintiff and another suit O.S.No.2495/1996 filed by
the defendant and his wife against A.Pillappa and his
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daughters. Hence, sale deed of plaintiff is not having any
sanctity under law. Plaintiff is not in possession over the
suit schedule property. It is also contended that suits filed
by L.Venkatesh in O.S.No.3623/2023 against the plaintiff
and others for declaration and he had also challenged the
transactions under GPA dated 10.06.2008 alleged to have
been executed by L.Venkatesh in favour of K.Hari, sale
deed dated 03.05.2012 alleged to have been executed by
K.Hari as GPA holder of L.Venkatesh in favour of
K.V.Naidu. The alleged vendor of the plaintiff herein and
the sale deed dated 22.07.2016 alleged to have been
executed by plaintiff's alleged vendor in favour of the
plaintiff.
8. It is also contended that originally the land
bearing Sy.No.33 measuring 2 acres 12 guntas including
09 guntas Kharab belonged to A.Pillappa. Said A.Pillappa
executed GPA dated 28.08.1989 in favour of Jacob
Pandicheril Mathai delegating the powers to do all acts
deeds, things on his behalf. Subsequent to purchase of the
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property, he had applied for transferring the revenue
records of the said property and the revenue records stand
in the name of defendant and he has been paying the
taxes. Since, the day of purchase of the said property, he
is in exclusive possession and enjoyment of the same.
However, when things stood thus, on 04.07.2021,
L.Venkatesh without having any right, title and interest in
the said property has appeared along with rowdy elements
and tried to cut and remove the barbed wire fence and
hence, he was constrained to file the suit
O.S.No.3535/2021 against L.Venkatesh and obtained an
ad-interim order of temporary injunction.
9. It is also the contention that the land to an
extent of 1 acre 3 guntas purchased by him has not been
challenged by either A.Pillappa or his daughters and not
even whispered regarding alleged execution of GPA in
favour of Sannamma in the said suit. Said L.Venkatesh has
produced alleged GPA dated 27.01.1987 said to have been
executed by A.Pillappa in favour of Sannamma in
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O.S.No.3535/2021. The name of Sannamma had been
inserted and the name of Puttarajamma was erased. The
alleged agreement dated 27.01.1987 is a created
document with an intention to knock of the property and
contend that not entitled for any relief.
10. Therefore, having considered both pleadings of
the plaintiff as well as defendant point was framed that
whether the plaintiff has made out a good case and the
trial Court having considered the grounds urged in the
plaint as well as written statement comes to the
conclusion that the property originally belongs to
A.Pillappa is not in dispute and also taken note of the fact
that suits are filed by the parties and also taken note of
the fact that defendant also filed a suit for injunction
against L.Venkatesh and after hearing the defendant, he
has obtained ad-interim order of temporary injunction on
18.06.2022. The trial Court has also taken note of the fact
that defendant is in possession of suit schedule property
and also no Khatha has been transferred and no decision
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was taken by BBMP diligently as per the order dated
17.04.2023 passed in W.P.No.8415/2023.
11. The trial Court has also taken note of the fact
that there was an agreement of sale dated 27.09.1989
and 20.12.1981 and put the defendant in possession of
suit schedule property and also taken note of the earlier
suits and comes to the conclusion that plaintiff has made
out prima facie case and granted the relief. Being
aggrieved by the said order, the present appeal is filed
before this Court.
12. Learned counsel for the appellant would
vehemently contend that the trial Court committed an
error in coming to the conclusion that defendant is not in
possession and that plaintiff is in possession of the
property. The trial Court has also failed to take note of the
fact that prima facie case is in favour of the plaintiff and
non consideration of material on record requires
interference and hence, pray to set aside the said order.
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13. Per contra learned counsel for respondent
vehemently contend that trial Court in detail discussed the
material on record and also taken note of the fact that
there was a grant in favour of A.Pillappa in the year 1979,
who claims that said Pillappa executed GPA in favour of
Jacob on 28.08.1989 in respect of 1 acre of land and in
turn he had executed the sale deed dated 19.08.2005 in
favour of respondent/defendant to the extent of 1 acre 3
guntas of land. Learned counsel would also submit that the
sale agreement was also executed in favour of respondent
and he had filed suit for specific performance and the
same was decreed. The same is challenged before this
Court and this Court granted stay. Learned counsel
vehemently contend that when the trial Court in detail
discussed the material on record and comes to the
conclusion that respondent is in possession of the property
and when such being the case in order to prove the factum
of the possession by this appellant/plaintiff, nothing is
placed on record.
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14. Having heard the learned counsel for appellant
and also learned counsel appearing for respondent and
also both of them not dispute the fact that property
originally belongs to A.Pillappa and the same was granted
in the year 1979. The defendant's claim the title based on
the GPA executed by A.Pillappa in favour of one Jacob and
also he in turn sold the property on 19.08.2005 itself in
favour of 1st defendant and also he entered into an
agreement of sale to the remaining extent. The plaintiff
claims that A.Pillappa only executed power of attorney in
favour of Sannamma and Sannamma in turn sold the
property in favour of plaintiff vendor and plaintiff vendor
also sold the property in favour of plaintiff on 22.07.2016.
15. Having considered the grounds which have
been urged in the plaint as well as in written statement,
application and also objections filed before the trial Court
and this Court also having taken note of the material
placed on record comes to the conclusion that originally
property belongs to A.Pillappa and also there was a sale
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deed executed by power of attorney holder in favour of 1st
defendant on 19.08.2005 and the same has not been
challenged, but now the learned counsel for appellant
would submit that suit is filed in 2024 and the same is
numbered as O.S.No.2696/2024 and also it is noted that
for remaining property the defendants claim that he
entered into a sale agreement and a suit was also filed and
at the first instance, the suit was decreed and appeal is
also filed before this Court. This Court has stayed the
judgment and decree. But the fact that trial Court has
given a finding that defendant has been in possession of
the property has not been reversed by this Court also,
only judgment and decree has been stayed.
16. When such being the case and when the
material clearly discloses the fact that power of attorney
holder Jacob had sold the property i.e., 1 acre 3 guntas on
19.08.2005 and now only the sale is questioned by filing a
suit in this year and also the fact that based on the
agreement executed by the very same GPA holder sale
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agreement and delivery of possession and prima facie
there was a decree in favour of defendant and also finding
was given that the defendant has been in possession of
the property, question of granting relief of temporary
injunction not to interfere with the peaceful possession
and enjoyment of the plaintiff over the suit schedule
property does not arise.
17. Hence, I do not find any error committed by the
trial Court in appreciating both the material available on
record. The trial Court in detail discussed in paragraph
Nos.16, 17 and 18 of the case of plaintiff and defendant
and also taken note of the fact that the original owner had
executed the sale deed through power of attorney holder
and also one more sale agreement that too in the year
1989 in respect of remaining property, question of setting
aside the order does not arise and scope of the First
Appellate Authority is also very limited with regard to
finding of prima facie case is concerned. Hence, no ground
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to interfere with the order of the trial Court. In view of the
discussions made above, I pass the following:
ORDER
Appeal is hereby dismissed.
SD/-
(H.P.SANDESH)
JUDGE
RR
