Karnataka High Court
Sri H.P. Manjunath vs Sri Mohan on 11 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 7019 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.7019 OF 2024 (CPC)
BETWEEN:
1. SRI H.P. MANJUNATH,
S/O PUTTAIAH,
AGED ABOUT 41 YEARS.
2. SMT. M. VASANTHA,
W/O H.P. MANJUNATH,
AGED ABOUT 38 YEARS.
BOTH ARE RESIDING AT
NO.3960, 7TH CROSS,
2ND MAIN, GAYATHRINAGAR,
BENGALURU - 560 021.
...APPELLANTS
(BY SRI. JANARDHANA G., ADVOCATE)
Digitally signed AND:
by DEVIKA M
Location: HIGH 1. SRI MOHAN,
COURT OF S/O A.S. BORAPPA,
KARNATAKA
AGED ABOUT 54 YEARS,
RESIDING AT NO.120-A,
11TH CROSS ROAD,
ULLAL MAIN ROAD,
MUNESHWARA NAGAR,
BENGALURU-560 056.
2. SRI SRIKANATH,
S/O K. BOSE,
AGED ABOUT 36 YEARS.
3. SRI B. SRINIVAS,
S/O K. BOSE,
AGED ABOUT 34 YEARS.
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MFA No. 7019 of 2024
4. SRI B. SURESH,
S/O K. BOSE,
AGED ABOUT 32 YEARS.
5. SMT. PREMA,
W/O LATE K. BOSE,
AGED ABOUT 56 YEARS.
RESPONDENT NOS.2 TO 5 ARE
RESIDING AT NO.394-H,
9TH 'F' MAIN ROAD,
HOSAHALLI, VIJAYANAGAR,
BENGALURU-560 040.
6. SRI KISHORE BABU M.S.
SON OF MEDA SRINIVAS,
AGED ABOUT 60 YEARS,
NO.16, RESERVOIR STREET,
BASAVANAGUDI,
BANGALORE-560 004.
7. SMT. SIDDAGANGAMMA,
W/O LATE MALLAIAH H.,
AGED ABOUT 77 YEARS,
RESIDING AT NO.110,
1ST MAIN ROAD, VALMIKI NAGAR,
MYSORE ROAD,
BANGALORE-560 026.
8. SRI HANUMANTHARAJU,
S/O LATE MALLAIAH H.,
AGED ABOUT 47 YEARS,
RESIDING AT NO.110,
1ST MAIN ROAD, VALMIKI NAGAR,
MYSORE ROAD,
BANGALORE-560 026.
9. SMT. RADHAMMA,
W/O LATE MALLAIAH H.,
AGED ABOUT 67 YEARS,
RESIDING AT NO.110,
1ST MAIN ROAD, VALMIKI NAGAR,
MYSORE ROAD,
BANGALORE-560 026.
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MFA No. 7019 of 2024
10. SRI MUNIRAJU,
S/O LATE H. LINGAPPA,
AGED ABOUT 47 YEARS,
RESIDING AT NO.110,
1ST MAIN ROAD, VALMIKI NAGAR,
MYSORE ROAD, BANGALORE-560 026.
11. SRI HARISH,
S/O LATE H. LINGAPPA,
AGED ABOUT 37 YEARS,
RESIDING AT NO.110,
1ST MAIN ROAD, VALMIKI NAGAR,
MYSORE ROAD, BANGALORE-560 026.
12. SMT. GURUSHANTAMMA,
W/O LATE H. GANGAPPA,
AGED ABOUT 67 YEARS,
RESIDING AT NO.110,
1ST MAIN ROAD, VALMIKI NAGAR,
MYSORE ROAD,
BANGALORE-560026.
13. SRI SRINIVASAMURTHY,
S/O LATE H. GANGAPPA,
AGED ABOUT 45 YEARS,
RESIDING AT NO.110,
1ST MAIN ROAD, VALMIKI NAGAR,
MYSORE ROAD,
BANGALORE-560 026.
...RESPONDENTS
(BY SRI. VIGHNESHWAR S. SHASTRI, SENIOR COUNSEL A/W
SRI PUNITH C., ADVOCATE FOR C/R1)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 27.09.2024 PASSED ON IA
NO.1 IN O.S.NO.4575/2024 ON THE FILE OF THE XII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-27),
BENGALURU, DISMISSING IA NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 7019 of 2024
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 No.1.
2. This miscellaneous first appeal is filed praying this
Court to set aside the order dated 27.09.2024 passed by the XII
Additional City Civil Judge, Bengaluru (CCH-7) in dismissing
I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC in
O.S.No.4575/2024 filed by the appellants/plaintiffs and
consequently to allow the said I.A. filed by the appellants.
3. The factual matrix of the case of the appellants in
the plaint while seeking the relief of declaration and
consequential relief, it is contended that the appellants have
purchased the suit schedule property from respondent Nos.7 to
13 under a registered sale deed and subsequently got the
khatha registered in their names from the BBMP and also paying
the property tax to the same. The respondent No.1 stated to
have purchased the suit schedule property from respondent
Nos.2 to 5 and by virtue of the same made an attempt to enter
the suit schedule property to put up the construction thereon.
Hence, the appellants filed a suit for the relief of declaration that
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they are the absolute owners of the suit schedule property and,
interalia sought for an order of injunction restraining respondent
No.1 in putting up the construction. In the said suit, an ad-
interim injunction was granted and thereafter respondent No.1
appeared and filed the written statement and objections. The
Trial Court vacated the interim order in coming to the conclusion
that case of defendant No.1 is probable than the appellants.
The Trial Court committed an error in vacating the interim order
and dismissing I.A.No.1 and hence the present appeal is filed
before this Court.
4. The main contention of the learned counsel for the
appellants before this Court is that the Trial Court erred in
holding that on examining the pleadings and materials, the
appellants case is doubtful for the reason that until 2003 khatha
of the land bearing Sy.No.107/1A1 was standing in the name of
late Gangappa and after his demise, respondent Nos.7 to 13 got
the khatha of the said land in their names by claiming
themselves as legal heirs of Gangappa and not the legal heirs of
Mylarappa, even though the appellants have produced the order
of the Assistant Commissioner in SC/ST Case No.10/1983-84,
wherein he has clearly directed the Tahsildar to immediately
take eviction proceedings to evict the buyers of the land who
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were in possession of the same and take the same to his
custody and to handover the possession of the same to the legal
heirs of Mylarappa on production of such declaration from the
competent authority by Gangappa or Sampangamma or
Hanumaiah, as the case may be, until then the possession of the
same should be with the Tahsildar and clearly establishes the
fact that Gangappa and respondent Nos.7 to 13 were all the
children of late Hanumappa and brother of Mylarappa, who died
issueless and hence they have succeed together to the same
and Gangappa had absolutely no authority to execute the power
of attorney in favour of respondent No.6 to deal with the entire
extent of 10 acres of land in the said survey number.
5. The learned counsel would contend that after the
Assistant Commissioner's order, the buyers of the land filed a
revision petition before the Deputy Commissioner challenging
the same and thereafter filed W.P.No.4743/1989 before this
Court and this Court granted one year time for them to vacate
the premises from 23.09.1993 and in the meanwhile permitted
them to file an application before the Assistant Commissioner for
enquiry into the improvements made thereon, since the malki
existing over the same. Thereafter, the Assistant Commissioner
to pass an order within two months thereon and when that is so,
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late Gangappa could not have executed the power of attorney in
favour of respondent No.6 as on 04.05.1990 and in turn he
could not have formed the sites and consequently sold the suit
schedule property to Sri Bose and delivered the possession of
the same to him. The learned counsel contend that the Trial
Court erred in holding that by virtue of the said power of
attorney, respondent No.6 formed the layout and sold the sites
to various parties including the suit schedule property. The
learned counsel contend that the Trial Court erred in holding
that in the year 2005, respondent Nos.7 to 13 have executed
the declaration in respect of the suit schedule property
confirming the sale deed made in favour of her husband late
Bose and in addition to that, in O.S.No.967/2003, they have
filed a declaration suit and it has been withdrawn by them and
thereafter their relatives filed O.S.No.2917/2006 seeking for
partition and separate possession and it was dismissed on
04.01.2014 holding that, on the said land respondent No.6 long
back formed the sites and sold to various purchasers. The
learned counsel contend that when the plaintiffs have sought for
the relief of declaration and interalia sought for the relief of
temporary injunction restraining defendant No.1 in putting up
the construction on the ground that it will leads to multiplicity of
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proceedings and failed to take note of the said fact into
consideration. The learned counsel contend that when there is
no possession with Gangappa in the year 1990, the question of
delivering possession in favour of general power of attorney
holder does not arise. The general power of attorney holder
also cannot form the layout and sell the sites. The learned
counsel contend that when the property is not identifiable and
the sale deed executed is only a paper document and when the
claim is made by both the plaintiffs and defendant No.1 and
when the suit is filed for the relief of declaration, the Trial Court
ought to have come to the conclusion that evidence is required
for consideration of the material on record and ought to have
granted the relief of status quo atleast. The learned counsel
contend that when the relief is sought for declaration, this Court
can grant the relief of status quo. The very impugned order
passed by the Trial Court is erroneous.
6. The learned counsel for the appellants in support of
his arguments relied upon the order passed by this Court in
W.P.No.38168/2024 and brought to the notice of this Court
paragraph No.2 of the said order, wherein an observation is
made that when the suit is filed for the relief of partition and
separate possession, it would raise a presumption that there
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was no partition of the joint family properties. If there was a
sale in respect of one of the joint family properties without the
consent of the present petitioner, it would not be binding on
him. The learned counsel referring this judgment would contend
that when the property was restored to the family, all the legal
heirs of the said Mylarappa are having right over the property. If
any sale is made or any interest is created, it only binds his
share and not portion of the entire joint family property.
7. The learned counsel also relied upon the judgment of
the Apex Court in the case of ANATHULA SUDHAKAR v. P.
BUCHI REDDY (DEAD) BY LRS. AND OTHERS reported in
(2008) 4 SCC 594 and brought to the notice of this Court the
discussion made in paragraph No.12 of the judgment regarding
questions arise for consideration and also particularly brought to
the notice of this Court paragraph No.13.3, wherein an
observation is made that where the title of the plaintiff is under
a cloud or in dispute and he is not in possession or not able to
establish possession, necessarily the plaintiff will have to file a
suit for declaration, possession and injunction. The learned
counsel referring this judgment would contend that when the
suit is filed for the relief of declaration and sought the relief of
restraining defendant No.1 from putting up the construction, the
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Trial Court ought to have taken note of the fact that if restrained
order has not been passed, it would cause prejudice to the
plaintiffs.
8. The learned counsel also relied on the judgment
passed in O.S.No.7346/2006, wherein relief was sought for
declaration and injunction and granted the relief of declaration
that sale deed dated 11.07.1991 executed by Gangappa through
his general power of attorney holder in favour of the defendant
in respect of the suit schedule property and another site does
not in any way affect the right, title and interest of the plaintiff
over the suit schedule property and in similar set of facts and
right claimed by the plaintiff was also decreed and ought to have
taken note of the said fact into consideration.
9. The learned counsel also relies upon the judgment in
O.S.No.8765/2006 filed by the defendant in O.S.No.7346/2006,
wherein the suit was dismissed and contend that the Trial Court
ought not to have rejected the application. The learned counsel
has produced the document of sale deed dated 04.12.2012
under which the plaintiffs purchased the suit schedule property
from defendant No.7 to 13, copy of the khatha registered in the
name of the plaintiffs issued by BBMP, copy of the encumbrance
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certificate, copy of the tax paid receipts dated 25.05.2017
issued by BBMP in the name of the plaintiffs, copy of the order
passed by the Assistant Commissioner and Special Deputy
Commissioner, copy of the order passed by the High Court in
W.P.No.4743/1989 dated 23.9.1993 confirming the order of the
Special Deputy Commissioner, copy of the death certificates of
Mylarappa, Nanjamma and Hanumappa, copy of the mutation
register extracts, copy of the power of attorney dated
04.05.1990 executed in the name of defendant No.6 to manage
the land bearing Sy.No.42, new No.107/1A1 of Mallathahalli
Village, Bengaluru and copy of the police acknowledgment
issued by Janabharathi police. Referring these documents, the
learned counsel would contend that all the documents stand in
the name of the plaintiffs and the Trial Court fails to consider all
these documents and committed an error in dismissing the
application.
10. The learned counsel brought to the notice of this
Court the reasoning given by the Trial Court while rejecting the
application and contend that the Trial Court erroneously comes
to the conclusion that defendant No.1's case is probable than
the case of the plaintiffs relying upon the document of the
electricity and water supply documents and erroneously comes
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to the conclusion that the plaintiffs have not made out a prima
facie case. The plaintiffs have categorically admitted that it is
the defendant No.1 is in possession and he is putting up the
construction and only he attempted to put up the construction
and not put up any construction and immediately approached
the Court to grant the relief and there was no any delay in
seeking the relief also.
11. Per contra, the learned counsel for the
caveator/respondent No.1 referring the documents which have
been produced before the Trial Court and this Court would
contend that when the Special Deputy Commissioner's order
was challenged before this Court in W.P.No.4743/1989, vide
order dated 23.09.1993, a specific direction was given to
handover the property in favour of Gangappa, who had filed an
application for restoration of the property and one year time was
granted to the petitioners to vacate and put respondent No.1
Gangappa in vacant possession of the land without any protest.
The petitioners are at liberty to make an application to the
Assistant Commissioner for enquiry into the improvements made
and malki existing on the land in question. The learned counsel
referring this order would submit that a clear direction was given
to handover the vacant possession of the land to Gangappa and
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Gangappa in turn handed over the possession in favour of
Kishore Babu in terms of the general power of attorney and the
same was a registered power of attorney, wherein specific right
is given to sell, mortgage, gift, lease or alienate the schedule
property or any part of it to any persons and receive the sale
consideration. Based on the said power of attorney, he had
executed the sale deed on 06.12.1991 in favour of Sri K. Bose.
12. The learned counsel brought to the notice of this
Court that in respect of the suit schedule property, sale deed
was executed and possession was delivered and thereafter, all
the revenue entries came into the name of wife of Sri K. Bose
i.e., Smt. Prema, since Sri Bose passed away and an amount of
Rs.40,000/- of betterment charges was paid by his wife. The
learned counsel brought to the notice of this Court the certificate
issued by the BBMP and also the assessment extract stands in
the name of Smt.Prema. The learned counsel contend that the
said Prema and the legal heirs of K. Bose executed gift deed in
favour of another son Srikanth vide gift deed dated 01.09.2020
and thereafter all the revenue records are standing in the name
of Srikanth. Confirmation deed is also executed by the wife of
Gangappa i.e., Smt. Gurushanthamma and his children Manjula,
Yellamma, Srinivasmurthy and wife of Srinivasamurthy on
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30.11.2020 and rectification deed is also executed on
06.02.2021. The learned counsel also produced the sale deed
dated 17.09.2021 executed in favour of defendant No.1 and also
brought to the note of this Court the reference made in the sale
deed that original grantees Sri Mylarappa and Smt. Nanjamma
were not having any children and hence his brother
Hanumaiah's son Gangappa was taken as dattu son. The details
are also given that he had executed the general power of
attorney and sites were formed and sold and subsequent to
purchase of the property, all the revenue documents stands in
the name of defendant No.1. The learned counsel brought to
the notice of this Court the document issued by the BBMP on
06.11.2021 and so also produced the tax paid receipts and also
electricity supply was given to the suit schedule property on
02.08.2008 in the name of Smt.Prema, who had constructed the
building and paying the electricity charges and the same was
transferred in the name of defendant No.1 and he was paying
the electricity charges and water charges. The learned counsel
also produced the photographs that defendant No.1 has started
construction work by digging the land and photographs evidence
that defendant No.1 is in possession of the property. The
learned counsel contend that the vendor of the plaintiffs also
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filed a suit in O.S.No.967/2003 and injunction was not granted
in their favour and also contend that M.F.A.No.4177/2003 was
filed, wherein also they were unsuccessful. The learned counsel
brought to the notice of this Court the suit filed by the other
legal heirs of the family of Mylarappa in O.S.No.2917/2006 and
the Trial Court dismissed the said suit. The learned counsel
contend that the vendor of the plaintiffs in an ingenious method
got transferred the property showing that the property is still an
agricultural land even though the property is not agricultural
land and created the document vide sale deed dated
04.12.2012.
13. The learned counsel in support of his arguments
relied upon the order passed in O.S.No.413/2015, wherein
interim order was sought and the same was dismissed and the
said order was challenged before this Court in
M.F.A.No.2681/2018 and this Court also dismissed the M.F.A.
without expressing any opinion on the merits/demerits of the
rival contentions directing the Trial Court to dispose of the suit
expeditiously and no such orders are passed in favour of the
vendor of the plaintiffs and the Trial Court rightly dismissed the
application filed by the appellants. The learned counsel has
produced the copy of the deed of declaration executed in favour
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of Smt. Prema by Mallaiah, Radhamma and Gurushanthamma,
wherein reference was made with regard to the execution of the
document by Gangappa in favour of Kishore Babu. The learned
counsel relies on the order passed by this Court in
R.F.A.No.707/2018 c/w R.F.A.No.708/2018, wherein parties
compromised the matter and the judgment and decree passed
in O.S.No.7346/2006 and O.S.No.8765/2006 are set aside by
taking compromise petition on record and allowed the appeals
and set aside the judgment and decree of both the suits.
14. The learned counsel for respondent No.1 in support
of his arguments relied upon the judgment of the Apex Court in
the case of KASHI MATH SAMSTHAN AND ANOTHER v.
SRIMAD SUDHINDRA THIRTHA SWAMY AND ANOTHER
reported in AIR 2010 SC 296, wherein discussion was made
with regard to the granting of injunction that injunction cannot
be granted even if such party makes out case of balance of
convenience and irreparable injury in the absence of any prima
facie case.
15. The learned counsel also relied upon the judgment of
the Apex Court in the case of P.KISHORE KUMAR v. VITTAL
K. PATKAR reported in 2023 Live Law (SC) 999, wherein the
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Apex Court held that a vendor cannot transfer a title to the
vendee better than he himself possesses, the principle arising
from the maxim nemo dat quod non habet, i.e., "no one can
confer a better title than what he himself has".
16. The learned counsel also relied on the judgment of
the Apex Court in the case of WANDER LTD. AND ANOTHER
v. ANTOX INDIA P. LTD. reported in 1990 (Supp) SCC 727
and the judgment in the case of MANDALI RANGANNA AND
OTHERS v. T. RAMACHANDRA AND OTHERS reported in
(2008) 11 SCC 1, wherein it is held that the Court will not only
take into consideration the basic elements in relation thereto
viz. existence of a prima facie case, balance of convenience and
irreparable injury, it must also take into consideration the
conduct of the parties.
17. In reply to the arguments of the learned counsel for
respondent No.1, the learned counsel for the appellants would
contend that the order passed by this Court in writ petition will
not help respondent No.1 and the revenue records also not
confer any title in favour of respondent No.1. The Trial Court
committed an error in dismissing the application and the
observation of the Trial Court that there is no material to show
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that the plaintiffs have established the possession in respect of
the property is erroneous. The learned counsel contend that the
description mentioned in the property is not proved by
respondent No.1 and merely taking the electricity and water
connection cannot establish that respondent No.1 is in
possession of the property and nowhere the plaintiffs have
admitted the possession of defendant No.1, but the observation
made by the Trial Court is erroneous that the plaintiffs have
categorically admitted that defendant No.1 is in possession and
the very approach of the Trial Court is erroneous.
18. Having heard the learned counsel for the appellants,
learned counsel for respondent No.1 and also the grounds which
have been urged in the appeal and also the oral submissions of
both the learned counsel and also considering the principles laid
down in the judgments relied upon by both the learned counsel,
the points that arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in
dismissing I.A.No.1 filed under Order 39 Rules
1 and 2 of CPC in coming to the conclusion that
the plaintiffs have not made out a prima facie
case and whether it requires interference of
this Court?
(ii) What order?
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19. Having heard the respective learned counsel, it is not
in dispute that the property was originally granted in favour of
Mylarappa to an extent of 25 acres. The dispute is with regard
to 10 acres of land, which was sold earlier. It is also not in
dispute that an application was filed before the Assistant
Commissioner for restoration of the property on the ground that
the property was sold in violation of the grant order since the
same was sold in favour of Venkatappa on 12.04.1956 and the
land was granted on 14.04.1955 in favour of Mylarappa. It is
not in dispute that the property was restored and the same was
challenged and also a direction was given and the same was also
challenged before this Court and this Court also confirmed the
order passed by the Special Deputy Commissioner and direction
was given to handover the possession in favour of Gangappa
and also to take the possession in favour of Tahsildar and to
ascertain the amount spent for improvement. It is important to
note that there is no dispute with regard to the fact that the
property was granted in favour of Mylarappa and he was not
having any issues. Gangappa is the son of his brother
Hanumaiah. It is not in dispute that Gangappa had executed the
registered power of attorney in favour of defendant No.6 Kishore
Babu in the year 1990 and based on the said power of attorney,
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the said Kishore Babu executed the sale deed in favour of
K.Bose and he had formed the layout and sold the property and
defendant No.1 also claims that the sale deed was executed in
his favour in the year 1991 itself. The respondent No.2 sold the
property in favour of respondent No.1 in the year 2021. The
claim of the appellants is that they are also the legal heirs of the
said Mylarappa through Hanumaiah and the records discloses
that several litigations were taken place between them. It is the
claim of the plaintiffs that revenue records stand in their name
i.e., produced documents of 2007. On the other hand, defendant
No.1 claims right from the date of the execution of power of
attorney in favour of Kishore Babu and Kishore Babu in turn
executed the sale deed in favour of Bose and after the death of
Bose, the property was transferred in favour of Smt. Prema.
The revenue records also discloses that khatha certificates are
issued in favour of Smt. Prema and she has paid the tax and
also executed the gift deed in favour of one of her son Srikanth
along with other children and subsequently he had sold the
property in favour of defendant No.1.
20. The main contention of the learned counsel for the
appellants is that Gangappa was not having any absolute right
over the property to sell the same and the fact is that power of
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attorney was executed in 1990 and the same is a registered
document and sites are formed and same are sold to different
prospective purchasers. No doubt, the appellants claim that
property was transferred in their name in the year 2003 and
when already sale transactions were taken place and some of
them have executed the confirmation deed. The Court while
granting the relief of temporary injunction that too when the
relief is sought not to interfere with the possession of the
property, the very contention of the appellants is that defendant
No.1 started putting up the construction and hence filed the suit.
Admittedly, when the grant was made, the said Gangappa after
coming into force of the Karnataka Scheduled Castes and
Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act,
1978, along with wife Gurushanthamma approached the
Assistant Commissioner for restoration of the property and the
property was restored at his instance when restoration
application was filed. It is also not in dispute that the property
was restored and thereafter he had executed the power of
attorney. The learned counsel for the appellants contend that he
had executed the power of attorney in the year 1990 when the
writ petition was pending. No doubt, the sale transaction was
also taken prior to disposal of the writ petition. On perusal of
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the order of the writ petition, it is clear that a direction was
given to handover the possession in favour of Gangappa, who is
respondent No.1 in the writ petition. The registered documents
are placed before the Court and based on the power of attorney,
sites were formed and sold to different persons. The suits were
also filed earlier by the vendors of the plaintiffs and they were
unsuccessful before the Trial Court and this Court also and in
other suits also no such relief was granted. Prima facie
documents are found by the Trial Court in respect of defendant
No.1 and even discussed earlier O.S.No.967/2003, which came
to be dismissed as withdrawn and thereafter also other legal
heirs of the vendor of the plaintiffs have also filed
O.S.No.2917/2006 by seeking the relief of partition and separate
possession. No doubt, the plaintiffs also sought for the relief of
declaration.
21. The learned counsel for the appellants contend that
the judgment of the Apex Court in the case of Anathula
Sudhakar (supra) is clear with regard to where the title of the
plaintiff is under a cloud or in dispute, a comprehensive suit has
to be filed and there is no dispute with regard to the principles is
concerned. The learned counsel also referred the judgment
passed by this Court in writ petition with regard to selling of the
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property by one of the sharers and the same binds on his share.
There are documents from 1991 onwards and the suit is filed in
2024 seeking the relief of declaration and prima facie the
documents discloses in favour of defendant No.1 he claims title
from 1990 onwards. When such material is available before the
Court, the documentary evidence discloses possession in favour
of defendant No.1. The wife of Bose i.e., Smt. Prema obtained
the electricity connection in 2008 and water connection is also
taken and prima facie established her possession in respect of
the suit schedule property and the same is transferred in favour
of defendant No.1 subsequently on purchasing of the same and
electricity bill as well as water bill is also produced. No doubt,
the plaintiffs claim right on the ground that the other legal heirs
of the said Hanumaiah are also having title in respect of the
property and even if the plaintiffs succeed in the suit for
declaration also, the Court can grant the relief. The defendant
No.1 has made out a case that he has been in possession of the
property and his vendors were also in possession of the property
from 1990 onwards after the formation and selling of sites. The
defendant No.1 has taken up the construction work and
photographs produced also evidence the fact that already he has
dug the site to put up construction and defendant No.1 cannot
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NC: 2024:KHC:45553
claim equity in case the plaintiffs succeed in future. When the
material discloses in favour of defendant No.1, the question of
granting the relief of injunction in favour of the plaintiffs does
not arise. It is also made clear that if the plaintiffs succeed in
the suit, defendant No.1 shall not claim equity, in case he
completes the construction.
22. With these observations, the miscellaneous first
appeal is disposed of. The observations made by this Court shall
not influence the Trial Court while considering the matters on
merits.
Sd/-
(H.P.SANDESH)
JUDGE
MD
