Karnataka High Court
Mothisingh vs Somachari on 21 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 6698 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.6698 OF 2022 (CPC)
BETWEEN:
1. MOTHISINGH,
S/O B. HAPU SINGH,
AGED 46 YEARS,
NO.1468/69, 1ST CROSS,
KABIR ROAD,
LAKSHKAR MOHALLA,
MYSORE.
...APPELLANT
(BY SRI. SANGAMESH R.B., ADVOCATE)
AND:
1. SOMACHARI,
Digitally signed S/O LATE NARASAMMA,
by DEVIKA M AGED ABOUT 44 YEARS.
Location: HIGH
COURT OF 2. SMT. CHALUVAMMA,
KARNATAKA
D/O LATE LINGACHARI,
AGED ABOUT 55 YEARS.
3. SMT. RATHANAMMA,
W/O LATE GOVINDACHARI,
AGED ABOUT 51 YEARS.
4. CHALUVARAJU,
S/O LATE GOVINDACHARI,
AGED ABOUT 32 YEARS.
5. SMT. GOWRAMMA @ GOWRI,
D/O LATE GOVINDACHARI,
AGED ABOUT 26 YEARS.
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MFA No. 6698 of 2022
6. SMT. SAKAMMA,
D/O LATE LINGACHARI,
AGED ABOUT 51 YEARS.
7. SMT. RATHNAMMA,
D/O LATE LINGACHARI,
AGED ABOUT 46 YEARS.
ALL THE ABOVE 1 TO 7 ARE RESIDING
AT HURALIKYTHANAHALLI VILLAGE,
KASABA HOBLI, S.P.PATNA TALUK.
8. SRI NAGESH,
S/O LATE CHOWDEGOWDA,
AGED ABOUT 56 YEARS,
HOMMARAGALLI VILLAGE,
HAMPAPURA HOBLI,
H.D.KOTE TALUK,
MYSORE DISTRICT.
9. SMT. MANJULA,
W/O M.MANJUNATH,
AGED ABOUT 34 YEARS,
R/AT NO.24, 13TH CROSS,
3RD MAIN, NEAR GANESH TEMPLE,
MAGADI ROAD, CHOLARAPALYA,
BANGALORE NORTH.
...RESPONDENTS
(BY SRI. MALLIKARJUNA SWAMY N.S., ADVOCATE FOR
R1 TO R4, R6, R7 AND R9;
VIDE ORDER DATED 26.06.2023,
R3 AND R4 ARE LRS OF DECEASED R5;
SRI S. RAJASHEKAR & ASSOCIATES FOR R8)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, PRAYING TO SET ASIDE THE IMPUNGED
ORDER DATED 14.09.2022 PASSED ON IA NO.1 AND 2 IN
O.S.NO.774/2022 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE, MYSURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 6698 of 2022
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. This appeal is filed challenging the rejection of
I.A.Nos.1 and 2 filed under Order 39 Rules 1 and 2 of CPC
by the plaintiff seeking the relief of restraining defendant
No.8 from meddling with the schedule property in any
manner including carrying out any sort of development
activity and also not to alienate the same till the disposal of
the suit.
3. The factual matrix of the case of the plaintiff
before the Trial Court while seeking the relief of declaration
and interalia seeking temporary injunction, it is stated that
originally the property belongs to Cheluvachari and
Lingachari, who have purchased the property in the year
1958 and the same is also in the joint name. It is the
contention of the appellant/plaintiff that the legal
representatives of Lingachari have executed power of
attorney in respect of entire extent on 07.05.2015 and
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received the entire sale consideration and also delivered
the possession and the sale deed was not executed for the
reason that khatha was not standing in the name of the
vendor of the plaintiff and all powers are given to get the
khatha transferred and change the revenue entries and for
development and to enjoy the property. The counsel would
submits that in the mean time, the said Cheluvachari was
passed away and hence, the suit was filed by one of the
son of Cheluvachari that is Dasachari that is his legal heir
against the Lingachari and both of them have compromised
the suit in 2017 suppressing the execution of earlier power
of attorney executed by the legal heirs of Lingachari and
delivery of possession. The counsel also would vehemently
contend that the legal heirs of Lingachari and Dasachari
clandestinely compromised the same dividing the same as
1 acre 22 guntas each and Dasachari's legal heirs have sold
the property to the extent of 1 acre 22 guntas in favour of
defendant No.8 on 20.05.2019 and remaining half also sold
by the legal representatives of Lingachari on 19.02.2000.
On the strength of these two sale deeds when defendant
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No.8 came to the spot, then only he comes to know about
the creation of this document. Hence, the suit is filed for
the relief of declaration to declare that those two sale
deeds not binding and also sought for the relief of
permanent injunction inter alia sought for the relief of
temporary injunction.
4. The counsel submits that there was an exparte
interim order in favour of the appellant/plaintiff and same
is vacated while dismissing I.A.Nos.1 and 2. The counsel
also would vehemently contend that the Trial Court
committed an error in dismissing the applications in coming
to the conclusion in paragraph 27 that no recital with
regard to power of delivery of possession was made under
the power of attorney when the amount of Rs.75,00,000/-
was paid by them. Even though, the transaction under the
said document prima facie appears to be out and out sale.
When the Trial Court comes to the conclusion that the
recital of document of power of attorney appears to be a
out and out sale, ought not to have rejected the
applications and very document is a registered document
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wherein it is very clear that sale consideration of
Rs.75,00,000/- was received. The Trial Court comes to the
conclusion that matter requires trial since it warrants
proving of the contents of power of attorney inspite of
document was registered long back. The very approach of
the Trial Court is erroneous.
5. The counsel for respondent No.8 would
vehemently contend that respondent No.8 is the bonafide
purchaser of the suit schedule property and he had
purchased the property from the legal heirs of Dasachari
and Lingachari. It is not disputed fact that the
Cheluvachari and Lingachari have purchased of the
property in the year 1958. The counsel would vehemently
contend that at the time of purchasing the property by this
respondent, there is no piece of material of possession and
even encumbrance is also verified and there is no entry.
The counsel would vehemently contend that the Court has
to take note of the fact that no material is placed before
the Court to show that they were in possession of the suit
schedule property. The counsel fairly admits that the Trial
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Court made an erroneous observation that under the GPA,
no possession was delivered. Though the said fact is a
mistake in referring the document, but in the absence of
any documentary proof with regard to the possession is
concerned, ought to have comes to the conclusion that the
plaintiffs have made out any case. The counsel appearing
for the respondent also contend that the prayer is sought
only for not binding and not sought for cancellation of those
two sale deeds or sought any relief of declaration to declare
the appellant is the owner of the property. When the suit
itself is not maintainable, the question of granting interim
order does not arise.
6. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
available on record, it discloses that there is no dispute
with regard to the fact that property was purchased by one
Cheluvachari and his son Lingachari vide sale deed dated
12.04.1958. The fact that the father Cheluvachari passed
away is not in dispute. It is the main contention of the
appellant that there is a GPA executed on 06.05.2015 by
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the legal representatives of Lingachari. The counsel also
contends that the other legal heirs of Dasachari have not
joined in executing the power of attorney. On account of
death of Cheluvachari, the other son Lingachari's legal heirs
also entitled for half share in the remaining property. The
said fact is not taken note of by the Trial Court. The Trial
Court only comes to the conclusion that the power of
attorney is required to be proved. Admittedly, the power of
attorney is registered on 06.05.2015 and the respondent
also not disputes the said fact but contends that the
respondent is the bonafide purchaser and not noticed
anything about the transaction. The counsel for the
respondent submits there was no any agreement but the
counsel for the appellant submits that earlier there was a
registered agreement executed by one Smt. Cheluvamma
and others in favour of H C Kumaraswamy on 24.06.2009
which was cancelled on 19.10.2015, subsequent to the
execution of power of attorney dated 06.05.2015 and all
powers are given to the appellant. The counsel also brought
to notice of this Court to the recital made in the power of
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attorney wherein reason is also given for non-registration
of sale deed even though entire sale consideration has
been paid and specifically mentioned that khatha was not
standing in the name of the executants of the power of
attorney and all powers are given for rectification of the
document, for phodi work, for correction of RTC and to get
the land surveyed and raise loans and development also.
Having perused the recitals of the said document, it is
specifically mentioned that possession was delivered having
received the amount of Rs.75,00,000/- on the date of
execution of the document and same is also found in page
5 of the power of attorney which was registered.
7. Having considered the GPA, when the said
document is registered, possession is also delivered. But
the Trial Court committed an error in making an
observation that there is no recital in the power of attorney
for delivery of possession. This discloses that the Trial
Court has lost sight about the said recital while rejecting
the IAs. When the plaintiff placed the document of GPA
which is a registered one, the Trial Court comes to a
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erroneous conclusion that it requires proof of contents of
the GPA, when the power of attorney is a registered
document. Only contention of the respondent No.8 is that
he had purchased the property subsequently by paying the
amount, but the counsel appearing for the appellant also
brought to notice of this Court that the very original owners
have filed the suit against this respondent stating that no
sale deeds are executed in his favour and no sale
consideration was passed. The respondents also not
disputes the fact that both of them have filed the suit for
cancellation of sale deed but both the suits are
subsequently withdrawn and when such material is
available before the Court, the matter requires full fledged
trial. The Trial Court ought to have taken note of the fact
that there was a registered GPA and there is a mention that
consideration of Rs.75,00,000/- was paid in favour of the
executants of the power of attorney and ought not to have
rejected the applications for granting of temporary
injunction as sought in I.A.Nos.1 and 2. If any construction
is made or changes the improvement, it will leads to a
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multiplicity of proceedings and even if properties are sold
by the respondent herein/defendant No.8, it will cause
multiplicity of proceedings and hence, the Trial Court ought
to have granted the relief of not to alienate also. The Trial
Court lost sight of all these facts. While considering the
application, when the relief is sought for temporary
injunction ought to have taken note of cardinal principles of
prima facie case, balance of convenience and hardship and
same has not been discussed in the order except making
an observation in paragraph 27 that no recital of delivery of
possession and the same is erroneous and it requires trial
and nothing is discussed with regard to the cardinal
principles of prima facie case, balance of convenience and
hardship and committed an error in dismissing the
applications. Hence, the finding of the Trial Court requires
interference of this Court.
8. In view of the discussions made above, I pass
the following:
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ORDER
The miscellaneous first appeal is allowed.
The impugned order dated 14.09.2022 passed on
I.A.Nos.1 and 2 in O.S.No.774/2022 is set aside.
Consequently, I.A.Nos.1 and 2 are allowed and restrained
defendant No.8 as sought in the respective applications till
the disposal of the suit.
The Trial Court is directed to dispose of the matter
within a time bound period of one year.
The learned counsel appearing for the respective
parties and parties are directed to assist the Trial Court in
disposal of the suit within a time bound period of one year.
Sd/-
(H.P.SANDESH)
JUDGE
MD/SN
