Karnataka High Court
Sri Manjunath K vs Kum. Vidyashree K on 12 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 3446 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 3446 OF 2020 (CPC)
BETWEEN:
1. SRI MANJUNATH K
S/O KRISHNAPPA
AGED ABOUT 33 YEARS,
R/O NO.125/2, HOUSE NO.3
1ST MAIN, 4TH CROSS
NEAR BILVAPATHREE TREE
LAGGERE, BENGALURU NORTH
PEENYA SMALL INDUSTRIES
BENGALURU-560058.
...APPELLANT
(BY SRI. M.B.CHANDRACHOODA, ADVOCATE)
AND:
Digitally signed 1. KUM. VIDYASHREE K
by DEVIKA M D/O KRISHNAPPA
Location: HIGH AGED ABOUT 22 YEARS,
COURT OF
KARNATAKA R/O NO.234/6, 1ST MAIN
4TH CROSS, NEAR BILVAPATHREE TREE
LAGGERE, BENGALURU NORTH
PEENYA SMALL INDUSTRIES
BENGALURU-560058.
2. SMT. SHARADA K
W/O T.K. SIDESHWAR
AGED ABOUT 34 YEARS,
R/O NO.125/2, HOUSE NO.3
NEAR BILVAPATHREE TREE
LAGGERE, BENGALURU NORTH
PEENYA SMALL INDUSTRIES
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MFA No. 3446 of 2020
BENGALURU-56004
...RESPONDENTS
(R-1 SERVED AND UNREPRESENTED
VIDE ORDER DATED 12.07.2024
NOTICE TO R-2 IS DISPENSED WITH)
THIS MFA FILED U/O. 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 09.07.2020 PASSED ON IA.NO.II, IN O.S.
NO.5393/2018, ON THE FILE OF THE XL ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE (CCH-41), BENGALURU,
REJECTING THE IA.NO.II FILED UNDER ORDER 39, RULE 4
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 learned counsel appearing for the appellant.
Inspite service of notice on respondent No.1, he did not
choose to engage the counsel or appear in person before
the Court. Notice against respondent No.2 is dispensed
with at the instance of the appellant as he is not claiming
any relief against respondent No.2.
2. Respondent No.1 before the trial Court has filed
a suit seeking the relief of permanent injunction
restraining the defendants from interfering with peaceful
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possession and enjoyment of the suit schedule residential
property bearing No.2(A) situated in Laggere, property
having assessment No.123/2 having Khatha
No.W-70/BPR/128/18-19, measuring East to West 40 feet,
North to South 15 feet, total of 600 square feet consisting
of residential building having total built up area of 1000
square feet, situated at 1st main, 4th cross,
Byreshwaranagar, Laggere, Yeshwanthpura Hobli,
Bengaluru and boundaries are also described.
3. It is the contention of the plaintiff that she got
the schedule property from her mother through a
registered sale deed. At the time of said transaction,
plaintiff was minor represented by her father Krishnappa.
Defendant Nos.1 and 2 are brother and sister of plaintiff.
Defendants have picked up quarrel with father of plaintiff
regarding share of schedule property. The defendants with
an intention to cause loss to plaintiff sent a notice to the
tenants occupying the schedule property asking them to
vacate the premises for which the tenants have replied
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contending that schedule property belongs to plaintiff and
they are tenants under the plaintiff. The defendants have
no locus standi to issue notice or take any steps for
vacating the tenants from the schedule premises. When
the tenants failed to vacate the schedule premises, the
defendants with the help of local goondas entered the
premises and made an attempt to disconnect electricity
and water connection. Further, they threatened the
tenants from consequences if they fail to vacate. When
this fact was brought to the notice of the plaintiff, plaintiff
approached the jurisdictional police, but the police did not
entertain and directed them to approach Civil Court as the
matter is of civil in nature. Therefore, plaintiff constrained
to file the suit seeking the relief against the defendants.
4. Defendants appeared and filed written
statement stating that plaintiff has suppressed the
material facts and filed the suit. The defendants except
admitting the relationship of plaintiff with them, have
denied the other averments made out in the plaint. The
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defendants pleaded that property bearing residential site
No.2, Assessment No.123/2 of Laggere, Bengaluru
measuring East to West 40 feet and North to South 15 feet
belongs to Puttathayamma. Muniyappa, the husband of
Puttathayamma formed sites in non agricultural
Sy. No.123/2 measuring 20 guntas. Puttathayamma and
her legal heirs, Nagaraju, Lakshmamma and Nagamma
have executed sale deed on 26.04.2018 in respect of
schedule property in favour of the defendants.
5. On the basis of sale deed, the defendants are in
actual physical possession and enjoyment of the schedule
property by exercising rights of ownership. The defendants
contended that plaintiff has no manner of right, title and
interest over the suit schedule property. It is also pleaded
that the mother of plaintiff, Bhagyamma died on
07.11.1995. After the death of Bhagyamma, plaintiff
created sale deed on 05.09.2014 by making impersonation
in order to grab the property. The plaintiff is not in
possession and enjoyment of the schedule property, but it
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is the defendants, who are in actual possession of the
property.
6. The plaintiff though aware of this fact, in order
to grab the property with the help of forged documents is
causing interference with the defendants' possession and
enjoyment of the schedule property. The plaintiff has also
produced sale deed dated 08.09.2014, Encumbrance
Certificate, Property Register Extract. The defendants
produced death certificate of Bhagyamma, Post Mortem
report of Bhagyamma, General Power of Attorney
executed in favour of Bhagyamma dated 12.10.1980, sale
deed dated 26.04.2018. The trial Court has taken note of
the fact that plaintiff and defendant Nos.1 and 2 are the
children of Krishnappa and Bhagyamma. Bhagyamma is
the power of attorney holder of Muniyappa and his sons
Nagaraj, Rangappa and Mohan have executed sale deed
on 05.08.2014 in respect of schedule property.
7. On the other hand, defendants contended that
Puttathayamma, Nagaraju, wife and son of Muniyappa,
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wives of Rangappa and Mohan, the sons of Muniyappa
have executed sale deed on 26.04.2018 in the name of
defendant No.1 in respect of northern portion of site No.2
formed in Sy.No.123/2 of Laggere village measuring East
to West 40 feet, North to South 15 feet bounded on East
by road, West by site No.8, North by remaining portion of
site No.2 and South by site No.3.
8. The trial Court having considered the
documents which have been submitted by both the
parties, has taken note of earlier sale deed of the year
2014 executed by Bhagyamma on 05.09.2014 in the name
of plaintiff in respect of southern portion of site No.2 and
has also taken note of the sale deed dated 26.04.2018
executed in the name of defendant No.1 in respect of
northern portion of site No.2. The property purchased by
defendant No.1 and property entrusted to Bhagyamma
through General Power of Attorney are one and the same.
Property purchased by defendant No.1 and property
purchased by plaintiff are altogether different. The plaintiff
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purchased southern portion of site No.2 and defendant
No.1 purchased northern portion of site No.2. Boundary
descriptions are also different. Defendants are no way
connected with southern portion of site No.2. Whether sale
deed executed in the name of plaintiff dated 05.09.2014
by Bhagyamma is subsequent to death of said
Bhagyamma or not and same is created by impersonation
or not is beyond the scope of the suit.
9. The only point for consideration is whether the
plaintiff is in possession of schedule property or not.
Further, the property purchased by defendant No.1 is a
vacant site, but property purchased by plaintiff is
consisting of one square constructed building having AC
sheet roof. There is no nexus between the schedule
property and the property purchased by defendant No.1.
The documents placed by plaintiff prima facie establishes
possession over the schedule property. Hence, the trial
Court accepted the case of the plaintiff and did not accept
the case of the defendant and has come to the conclusion
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that the properties are distinct and have taken note that
defendants have no right in respect of the suit schedule
properties. However, they contend that they have
purchased the schedule property and the same is the
matter of trial. Hence, the trial Court answered point No.1
in the affirmative and point No.2 in the negative and has
come to the conclusion that the plaintiff has made out the
case for temporary injunction and the defendants have not
made out the case to vacate the interim order already
granted.
10. Being aggrieved by the order passed by the trial
Court, the main contention of the appellant is that the
plaintiff claims the title based on the sale deed executed
by Bhagyamma and Bhagyamma was no more as on the
date of execution of sale deed and document discloses the
forged signature of Bhagyamma. Learned counsel submits
that as on the date of execution, Bhagyamma had died in
the year 1995 itself and the death certificate is also
produced and the document was created by impersonation
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and there cannot be any injunction order. Learned counsel
also contend that there is title dispute and the simple relief
of declaration is not maintainable since there is cloud on
the title of the plaintiff. Learned counsel vehemently
contend that the legal representatives of said Muniyappa
based on power of attorney executed sale deed in the year
2018 in favour of the defendant.
11. Having taken note of the material on record,
sale deed in respect of the southern portion of site No.2 is
purchased by the plaintiff and in respect of site No.2
purchased by defendant No.1 is concerned, the same is on
the northern portion measuring East to West 40 feet and
North to South 15 feet bounded on East by road, West by
Site No.9, North by remaining area of site No.2 and South
by Site No.3. In the sale deed of plaintiff, the
measurement is same as 40 feet and 15 feet and
boundaries are different compared to the sale deed of
defendant . Hence, it is clear that boundaries are distinct
and the same is also observed by the trial Court. Two sale
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deeds are executed. The property purchased by the
defendants is northern portion of site No.2 and property
purchased by the plaintiff is southern portion of site No.2
both measuring 40 x 15 feet and plaintiff on the southern
portion and defendants on the northern portion.
12. Having considered both the boundaries of
plaintiff and defendants, it is observed that both are
different and distinct. The claim made by plaintiff and
defendants are different properties. No doubt, learned
counsel for the appellant would contend that Bhagyamma
was not alive as on the date of the said execution, no
doubt, sale deed is of the year 2018, it appears that
signature of Bhagyamma is forged. Whether the same was
by impersonation, is the matter of trial. The defendant
claims title in respect of the northern portion of 40 x 15 ft
and the trial Court has also held that the properties are
distinct and defendant has not made out any case.
13. No doubt, title is disputed according to the
contention of the appellant's counsel, but they are not
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claiming the title in respect of the southern portion of the
very same site and it is clear that northern portion was
sold in favour of them through general power of attorney
holder. When said material is available to prove that both
are distinct and different, the contention of learned
counsel for the appellant/defendant No.1 cannot be
accepted.
14. In view of the above discussion, I pass the
following:
ORDER
Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MDS
