Karnataka High Court
Chethan Gowda L S vs Gangadhara Patel H on 15 October, 2024
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 2594 OF 2024 (GM-CPC)
BETWEEN:
1. CHETHAN GOWDA L.S.,
S/O L.R. SHIVARAME GOWDA,
AGED ABOUT 42 YEARS,
2.
SUDHA SHIVARAME GOWDA,
W/O L.R. SHIVARAME GOWDA,
AGED ABOUT 60 YEARS
BOTH ARE R/A NO.42, SUDHA MANSION,
1ST CROSS, 7TH MAIN,
BANAGIRI HILL, BSK II STAGE,
BENGALURU-560 085.
...APPELLANTS
[BY SRI K.N.PHANINDRA, SR. COUNSEL
SRI SAMMITH S., ADVOCATE (PH)]
AND:
1 . GANGADHARA PATEL H.,
S/O LATE HONNAGANGAPPA P.S.,
AGED ABOUT 45 YEARS,
R/A NO.53 AND 55,
2ND FLOOR, PAPAREDDYPALYA,
MUNIYAPPA LAYOUT,
NAGARABHAVI 2ND STAGE,
BENGALURU-560 072.
2 . RAJASHEKARA M.S.,
S/O LATE SIDDALINGAPPA,
AGED ABOUT 41 YEARS,
2
R/A NO.47/19, 11TH CROSS,
MUNIPAPAIAH LAYOUT,
NAGARABHAVI II STAGE,
BENGALURU-560 072.
...RESPONDENTS
[BY SRI JAYAKUMAR S. PATIL, SR. COUNSEL FOR
SRI SIDDESHWARA PRASAD S. KABBUR, ADV. FOR R1 & R2 (PH)]
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER ORDER 43
RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 13.03.2024 PASSED
ON I.A. NO. 1 AND 2 IN O.S.NO.2092/2023 ON THE FILE OF THE XXV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH NO.
23), ALLOWING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1 AND
2 OF CPC AND REJECTING THE I.A.NO.II FILED UNDER ORDER XXXIX
RULE 4 OF CPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.07.2024, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Challenging order dated 13.03.2024 passed by XXV Additional
City Civil and Sessions Judge, Bengaluru, (CCH-23), in
O.S.no.2092/2023 allowing I.A.no.1 filed under Order XXXIX Rules
1 and 2 of CPC and rejecting I.A.no.2 filed under Order XXXIX Rule
4 of CPC, this appeal is filed by defendants. For sake of
convenience, parties herein shall be referred as per their ranks
before trial Court.
2. Sri K.N. Phanindra, learned Senior Counsel appearing
for Sri Sammith S., advocate for appellants submitted, in suit filed
for permanent injunction restraining defendants etc. from
interfering with their peaceful possession of suit property, plaintiffs
had filed I.A.no.1 for temporary injunction. It was submitted, on
28.03.2023, trial Court had granted ex-parte ad-interim temporary
injunction restraining defendants from interfering with plaintiffs'
possession of suit property. It was submitted, western portion of
property bearing BBMP khata no.102/100/42/64 formed in
Sy.no.42/64 vide conversion Order no.ALN/SR(N)/185/1988-89
situated at Mallathahalli Village, Yeshvantpur Hobli, Bangalore North
Taluk, presently within BBMP limits, R.R.Nagar Sub-Division,
Jnanabharathi Ward measuring East to West - feet
and North to South - feet totally measuring 1698.75
sq.ft., bounded on East by - Remaining property of vendor; West
by - Property of Smt.Revamma; North by - Road and South by -
Gavipuram House Building Co-operative Society Layout was 'suit
property'.
3. It was submitted, upon appearance, defendants filed
written statement along with I.A.no.2 for vacating interim
injunction on several substantial grounds. When it was not taken up
for consideration, they filed W.P.no.11163/2023 challenging order
dated 28.03.2023. This Court on 02.06.2023, granted interim order
directing parties to maintain status-quo in respect of suit property.
And on 12.06.2023, disposed of writ petition directing trial Court to
dispose of I.A.s no.1 and 2 (before 15.07.2023) and continuing
order of status quo till then. Thereafter, impugned order dated
13.03.2024 was passed allowing I.A.no.1 and rejecting I.A.no.2.
Aggrieved thereby, this appeal was filed.
4. It was submitted, impugned order was contrary to facts
and circumstances of case and material on record. It was
submitted, main objection was about serious cloud over title of
plaintiffs over suit property and maintainability of suit for bare
injunction. It was further submitted, plaintiffs failed to establish
prima facie case, irreparable injury or balance of convenience in
their favour. Hence, impugned order was contrary to law laid down
by Hon'ble Supreme Court in case of Ananthula Sudhakar v.
P.Buchi Reddy, reported in (2008) 4 SCC 594, held as follows:
"Re: Question (i)
13. The general principles as to when a mere suit for
permanent injunction will lie, and when it is necessary to file a
suit for declaration and/or possession with injunction as a
consequential relief, are well settled. We may refer to them
briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of
a property and such possession is interfered or threatened by
the defendant, a suit for an injunction simpliciter will lie. A
person has a right to protect his possession against any person
who does not prove a better title by seeking a prohibitory
injunction. But a person in wrongful possession is not entitled to
an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he
is not in possession, his remedy is to file a suit for possession
and seek in addition, if necessary, an injunction. A person out of
possession, cannot seek the relief of injunction simpliciter,
without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the
property is in dispute, or under a cloud, or where the defendant
asserts title thereto and there is also a threat of dispossession
from the defendant, the plaintiff will have to sue for declaration
of title and the consequential relief of injunction. 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.
... ... ....
16. But what if the property is a vacant site, which is not
physically possessed, used or enjoyed? In such cases the
principle is that possession follows title. If two persons claim to
be in possession of a vacant site, one who is able to establish
title thereto will be considered to be in possession, as against
the person who is not able to establish title. This means that
even though a suit relating to a vacant site is for a mere
injunction and the issue is one of possession, it will be
necessary to examine and determine the title as a prelude for
deciding the de jure possession. In such a situation, where the
title is clear and simple, the court may venture a decision on the
issue of title, so as to decide the question of de jure possession
even though the suit is for a mere injunction. But where the
issue of title involves complicated or complex questions of fact
and law, or where court feels that parties had not proceeded on
the basis that title was at issue, the court should not decide the
issue of title in a suit for injunction. The proper course is to
relegate the plaintiff to the remedy of a full-fledged suit for
declaration and consequential reliefs."
5. It was submitted, plaintiffs' claim over suit property was
based on khata no.102/100/42/64 and photographs, which was
contested by defendants on ground that photographs pertain to site
no.38 bearing khata no.94/92/38/42/64 purchased by defendants
under registered sale deed dated 18.01.2022 executed by Smt.BS
Mala. It was further submitted, to prove possession, plaintiffs
produced BBMP khata at Annexure-R4, tax paid receipts at
Annexure-R6, loan sanction letter Annexure-R35, building licence at
Annexure-R36 and building plan at Annexure-R43, which were not
documents of title or possession.
6. Elaborating contention about title being in dispute, it
was submitted, plaintiffs claimed to have acquired title from Smt.BS
Mala, who in turn had got it from Smt.Revamma. It was submitted,
there was no dispute that land bearing Sy.no.42/64 of Mallathahalli
village measuring 2 Acres, originally belonged to Sri Kenchappa.
And after his death, his legal heirs partitioned it on 17.11.2023 as
follows:
(a) Smt.Revamma (wife) - 13 guntas;
(b) Smt.Venkatalakshmamma - widow of predeceased son - 13 guntas;
(c) Smt.Lakshmamma (daughter) - 13 guntas;
(d) Smt.Jayamma (daughter) - 13 guntas;
(e) Smt.Radhamma (daughter) - 13 guntas and
(f) Sri K. Nagaraj (son) - 15 guntas.
7. Whereas, defendants were sourcing their title to Smt.CS
Shilpa Gowda, who got it from Sri NR Nagaraju, who had purchased
1 Acre 27 guntas from children of late Kenchappa. It was
submitted, shares of Smt.Revamma and that of other legal heirs of
Kenchappa were adjacent to each other, with Smt.Revamma's
property situated to south-western portion of 2 Acres.
8. It was submitted, plaintiffs' vendor allegedly purchased
property in two portions of 3965 sq.ft. each (totally 7930 sq.ft.)
from out of share of Smt.Revamma under two separate sale deeds
without khata numbers, as follows:
Sale deed Number 4852 Number 4853
Portion Western side Eastern side
East by: Remaining extent of Property belonging to N.R
eastern portion of same Nagaraju
survey number
West by: Remaining portion of Remaining extent of
Revamma's property Western portion of same
survey number
North by: Road and remaining Road and remaining
portion of Revamma's portion of Revamma's
property property
South by: Gavipuram House Gavipuram House building
building Co-operative Co-operative society
society layout layout.
9. It was submitted, above sale deeds referred to property
of defendants vendor Sri NR Nagaraju. Further, combined reading
of boundary description would reveal that property of Smt.BS Mala
was sandwiched between remaining property of Smt.Revamma and
property of Sri NR Nagaraju. It was submitted, as per Annexure-R9,
khata number of entire extent of 7930 sq.ft. of property of Smt.BS
Mala was 102/100/42/64. It was submitted, strangely even khata
number of suit property measuring 1698.75 sq.ft. claimed by
plaintiffs was same as per Annexure-R4, which was illegal and
thereby raised doubts. Even other documents such as tax paid
receipts, property register extract, encumbrance certificate and
building licence etc. bear same number, demonstrating fictitious
nature of suit property.
10. It was further submitted, boundary description of title
deed of plaintiffs showed suit property was sandwiched between
remaining property of Smt.Revamma and Smt.BS Mala, but
photographs produced by plaintiffs did not show any vacant
property on either side of suit property. It was also submitted title
deed of vendor of defendants' vendor was dated 17.11.2003, that
of defendants' vendor was 22.03.2004 and of defendants on
06.07.2004, which were earlier to sale deed of plaintiffs dated
18.01.2022 and that of plaintiffs' vendor which was on 30.04.2004.
Hence, there were rival claims of title over suit property under
respective registered sale deeds thereby indicating serious dispute
of title. Such being case without challenging sale deeds of
defendants or their vendors or seeking for declaration of title,
plaintiffs could not maintain suit for bare injunction. And when
maintainability of suit was in issue, grant of injunction would be
wholly unsustainable.
11. It was submitted, when ground water survey report-
Annexure-R32 did not refer to suit property, learned trial Judge
relied on same while passing impugned order. Likewise, reliance on
loan allegedly sanctioned by Janata Co-operative Society to
conclude that same would not have been sanctioned without
confirming title and possession of plaintiffs would be without any
legal basis and contrary to law. It was submitted, same in any case,
would be ignoring fact that even defendants had obtained loan by
mortgaging property purchased from Punjab National Bank as per
Annexure-S. Thus, conclusion of trial Court was contrary to material
on record and as such perverse.
12. It was submitted reasoning by trial Court appeared to
be based on incorrect assumption that title follows possession
contrary to legal principle that 'possession follows title'. It was
further submitted, police compliant filed by defendants was on
12.05.2022, more than a year prior to first complaint allegedly filed
by plaintiffs on 16.05.2023 would also be a 'tell-tale' about falsity of
plaintiff's case. It was further contended, plaintiffs' case was that,
family members of late Kenchappa had executed General Power of
Attorney ('GPA' for short) in favour of one Sri K. Sriramaiah on
28.07.1994 as per Annexure-R22. Since, GPA was in respect of
entire 2 Acres, consequently, cloud of title of plaintiffs was even
bigger, disentitling plaintiffs for order of temporary injunction.
13. It was also submitted, title of plaintiffs' vendor Smt.BS
Mala was perfected on account of decree in OS no.15962/2004 and
RFA 184/2016 would be without basis as neither defendants nor
their predecessors in title were party to it.
14. On other hand, it was submitted, description of property
purchased by defendants matches perfectly with boundaries in
layout plan etc., and flow of title from their vendor Smt.CS Shilpa
Gowda and vendor's vendor Sri NR Nagaraju was smooth and
consistent. Their claims were duly corroborated by copies of
registered sale deeds, deeds of mortgage by deposit of title, khata
certificate initially issued by Rajarajeshwarinagar TMC and later by
BBMP as per Annexure-U, tax paid receipts at Annexure-V and V1
respectively.
15. It was submitted, on noticing plaintiffs were attempting
to put up construction after obtaining ex-parte interim injunction,
this Court in W.P.no.11163/2023 had ordered both parties to
maintain status quo in respect of suit property in all regards until
disposal of IAs no.1 and 2. It was submitted, as trial Court disposed
off IAs only on 13.03.2024, order of status quo had prevailed for
more than a year and therefore, it would be equitable to continue to
same until disposal of suit, by relying on ratio laid down in case of
Wander Ltd. v. Antox India (P) Ltd. reported in 1990 (Supp)
SCC 727, held as follows:
"9. Usually, the prayer for grant of an interlocutory injunction is
at a stage when the existence of the legal right asserted by the
plaintiff and its alleged violation are both contested and
uncertain and remain uncertain till they are established at the
trial on evidence. The court, at this stage, acts on certain well
settled principles of administration of this form of interlocutory
remedy which is both temporary and discretionary. The object
of the interlocutory injunction, it is stated
"...is to protect the plaintiff against injury by violation
of his rights for which he could not adequately be
compensated in damages recoverable in the action if
the uncertainty were resolved in his favour at the trial.
The need for such protection must be weighed against
the corresponding need of the defendant to be
protected against injury resulting from his having been
prevented from exercising his own legal rights for which
he could not be adequately compensated. The court
must weigh one need against another and determine
where the 'balance of convenience' lies."
The interlocutory remedy is intended to preserve in
status quo, the rights of parties which may appear on a prima
facie case. The court also, in restraining a defendant from
exercising what he considers his legal right but what the
plaintiff would like to be prevented, puts into the scales, as a
relevant consideration whether the defendant has yet to
commence his enterprise or whether he has already been
doing so in which latter case considerations somewhat
different from those that apply to a case where the
defendant is yet to commence his enterprise, are
attracted."
16. It was submitted, in event of impugned order being
continued, defendants would suffer irreparable loss and injury,
which could not be compensated in terms of money, as plaintiffs
would put up permanent construction over suit property and change
entire nature of suit property itself. On above grounds, it was
prayed for allowing appeal.
17. On other hand, Sri Jayakumar S. Patil, learned Senior
Counsel appearing for Sri Siddeshwara Prasad S. Kabbur, advocate
for plaintiffs submitted, land bearing Sy.no.42/64 measuring 2
Acres in Mallathahalli Village, Yeshvantpur Hobli, Bengaluru North
Taluk was granted in favour of one Hanumakka w/o Bettaiah, who
sold it to one Sri Sooraiah s/o Late Kare Kenchappa. After death of
Sooraiah, his son Kenchappa inherited it. It was got converted to
non-agriculture residential purpose by said Kenchappa. After death
of Kenchappa, names of his wife Smt.Revamma and sons namely
Veerabhadra and Nagaraj were mutated in revenue records.
18. Thereafter, Smt.Revamma and her sons executed
registered GPA in favour of one K. Sriramaiah s/o Krishnappa to
develop entire 2 Acres of land, form layout and to sold sites. After
obtaining conversion endorsement certificate, GPA holder got layout
approved by Mallathahalli Panchayath and laid sites no.52 to 101. It
was submitted, sites no.1 to 51 were perhaps laid in adjacent land
bearing Sy.no.42/63. Thereafter, Smt.Revamma and her sons sold
sites to different purchasers such as site no.96-B measuring 1665
sq.ft. to K. Jagaroop Singh s/o Kuber Singh; site no.98 measuring
1910 sq.ft. to Sri KT Sheshagiri s/o K. Thimmegowda; site no.96-A
measuring 1755 sq.ft. to Sri Kadur Srinivasa Murthy Gopala Krishna
and site no.97 measuring 2600 sq.ft. to Sri S. Sridhar s/o VR
Srinivasan. It was submitted, site no.96-A was later purchased by
Smt.Thirumale Srinivasachar Padmini from Kaduru Srinivasamurthy
Gopalkrishna.
19. It was submitted, much after these transactions, Sri NR
Nagaraju claimed to have got sale deed executed from (1) Nagaraj,
(2) Venkatalakshmamma, (3) Veerabhadrappa, (4) Lakshmamma,
(5) Jayamma and (6) Radhamma, children of Smt.Revamma, in
respect of 1 Acre 27 guntas out of total 2 Acres of land in
Sy.no.42/64. Said sale deed was presented for registration on same
day at 2.30 p.m., partition deed between Smt.Revamma and her
children was executed and registered at 4.30 p.m. In said partition,
Smt.Revamma was allotted 13 guntas of converted land, towards
her share. From out of said share, Smt.BS Mala-plaintiffs' vendor
purchased 7930 sq.ft. i.e. 3965 sq.ft. + 3965 sq.ft. from
Smt.Revamma on 30.04.2004. She got khata issued in her name
and paid taxes.
20. Thereafter, when Sri KT Sheshagiri interfered with her
possession, Smt.BS Mala filed OS.no.15962/2004 against Sri KT
Sheshagiri for perpetual injunction. On 25.11.2015, said suit was
decreed. Though, challenged in RFA no.184/2016 before this Court,
a compromise was entered into on 21.02.2019, wherein Sri KT
Sheshagiri affirmed right, title, interest and possession of Smt.BS
Mala. It was submitted, there was similar compromise in respect of
site no.96-B with Sri K.Jagaroop Sigh and site no.96-A with
Smt.Thirumale Srinivasachar Padmini in O.S.no.2436/2019 before
XVII Addl. City Civil Court (CCH-16), Bengaluru, on 25.04.2019,
giving up their right, title and interest in favour of Smt.BS Mala.
Even, S. Sridhar s/o VR Srinivasan, purchaser of site no.97,
measuring 2600 sq.ft. entered into compromise with Smt.BS Mala
in O.S.No.5192/2019 on 24.11.2019 affirming her right, title and
interest of Smt.BS Mala.
21. Thus, Smt.BS Mala had resolved all disputes with
previous purchasers in respect of entire extent of 7930 sq.ft. It was
submitted, Valuation Report of plaintiffs' Banker showed that on
29.12.2021, authorized Engineer of Bank visited suit property,
inspected it and took photographs with plaintiffs, which showed
compound-wall/fence around site. Apart from same, plaintiffs had
got issued public notice about intended purchase. Thereafter, by
borrowing loan from Janata Seva Co-operative Bank Ltd.,
Vijayanagar Branch, Bengaluru, plaintiffs had jointly purchased suit
property, took possession and sunk bore well in it. Thereafter, they
got joint khata and paid taxes. It was submitted during January,
2023, 10.02.2023 and 18.03.2023 defendants tried to interfere
with plaintiffs' possession of suit property. Therefore,
O.S.no.2092/2023 was filed against them for permanent injunction.
22. It was submitted, photographs taken prior to filing of
suit and produced by plaintiffs had date and time mentioned therein
clearly show that there was no signboard in or adjacent to suit
property, thereby falsifying claim of defendants that they had put
signboard after alleged interference by plaintiffs on 08.05.2022.
23. It was submitted, initially trial Court granted ex-parte
interim injunction on 28.03.2023. Even thereafter, defendants
obstructed construction by plaintiffs. Therefore, police complaint
was filed. Thereafter, defendant no.1 also filed police complaint
against plaintiffs. It was submitted, except claiming to have
mortgaged site, defendants neither stated nor produced material to
demonstrate exercise of ownership rights over site purchased by
them. Only after filing of suit by plaintiffs, defendants produced
false layout plan and photographs and meddling with possession
and construction by plaintiffs in suit property. It was submitted,
when they continued obstruction, plaintiffs filed another police
complaint. In their statement before police, defendants stated that
possession of property mortgaged by them was taken over by
Punjab National Bank.
24. It was submitted, while defendants filed their written-
statement, memo and I.A.no.2 to vacate ex-parte interim injunction
granted on 28.03.2023 in OS no.2092/2023. They also filed WP
no.11163/2023 obtained an ex-parte order of status quo. Plaintiffs
filed detailed objection to said IA no.2 with additional documents to
show prima-facie case. Thereafter, WP no.11163/2023 was
disposed of directing trial Court to consider and pass orders on I.A.s
no.1 and 2.
25. It was submitted, according to defendants, Sri NR
Nagaraju executed sale deed in favour of Smt.CS Shilpa Gowda in
respect of site no.38, who sold it to defendants, and who
mortgaged it State Bank of India and later to Punjab National Bank.
It was submitted, mortgage deed shows that it was in respect of
total 10 sites i.e. sites no.26, 27, 30, 33, 35, 37/2, 38, 39 & 40 as
per Annexure-P - layout plan, but said plan does not include site
no.30. Therefore, defendants are either withholding material before
Court or produced false layout plan.
26. It was submitted, allegation in complaint filed by
defendants was that some miscreants / anti-social elements tried to
encroach upon sites no.38, 39, 40 and 42 and tried to put up
compound wall, even though compound wall put up by plaintiffs
was in existence much earlier. Therefore, police complaint was on
false and imaginary basis.
27. Thereafter, defendant no.1 obtained NCR endorsement
from police and falsely claiming that they had put up compound
wall and signboard. It was submitted, photographs at Annexure-Z
series were created subsequent to 12.05.2023 and just prior to
filing of written statement in suit for purpose of showing fake
possession and harass plaintiffs. It was submitted, learned trial
Judge had heard and disposed of both IA no.1 and 2 on merits by
assigning proper reasons and same did not call for interference.
28. Heard learned counsel and perused impugned order and
available material.
29. From above, it is seen defendants are challenging
impugned order mainly on ground of untenability of conclusions as
well as on ground of failure to consider all available material.
Therefore, point that arises for consideration is:
"Whether order passed by trial Court on I.As.no.1
and 2 suffers from perversity/untenability and calls
for interference?"
30. This is an appeal against discretionary order passed by
trial Court under Order XXXIX Rules 1 and 2 of CPC on I.A.no.1. As
per decision of Hon'ble Supreme Court in Mohd. Mehtab Ibrahim
Khan v. Khushnuma Ibrahim Khan, reported in 2013 (9) SCC
221, scope for interference in appeal against discretionary order
would be limited, unless it were untenable or suffered from
perversity etc. It is clarified even if view taken by trial Court on
available material were to be one of possible views, there could be
no interference.
31. In light of above legal position, perusal of impugned
order, reveals after taking note of rival pleadings, material
produced and contentions urged, trial Court framed proper points
for consideration and passed order by assigning reasons. Main
reason assigned was, according to defendants suit property was
fictitious and no such property existed, but documents produced by
plaintiffs, namely, order of conversion of land use, sale deeds,
khata certificates and tax paid receipts as well as sanction of loan
by Janata Seva Co-operative Bank and Ground Water Level Report
issued after visiting suit property substantiated prima-facie case in
favour of plaintiffs. It further observes photographs produced by
plaintiffs showed construction of compound wall and beginning of
construction by raising columns.
32. It observed, even plaintiffs denied existence of
defendants' property and to resolve which trial was required, it
held, material produced by plaintiffs established prima-facie case
and possession, which required to be protected during pendency of
suit. On said observations, it answered points framed in favour of
plaintiffs and passed impugned order.
33. Only reference to case of defendants is that they
claimed to have purchased site no.38 from Smt.Shilpa Gowda under
registered sale deed dated 06.07.2004, who had purchased it from
Sri NR Nagaraju under registered sale deed dated 22.03.2004. It
also notes that said Sri NR Nagaraju had also purchased sites
no.39, 40, 42 and 43 and that after purchase, khata was issued to
Smt.Shilpa Gowda, which according to trial Court did not establish
prima-facie case on behalf of defendants to vacate ex-parte order
of temporary injunction.
34. As per plaint, Smt.Revamma wife of late Kenchappa -
original owner of land bearing Sy.no.42/64, got 13 guntas out of it
under registered partition deed dated 17.11.2003. Said land was
converted for non-agricultural purposes prior to partition. Out of
same, she sold 7930 sq.ft., of land in favour of Smt.BS Mala under
two registered sale deeds. Thereafter plaintiffs purchased suit
property, which was western portion of property of Smt.BS Mala,
under registered sale deed dated 18.01.2022.
35. In plaint, there is also mention of Sri KT Sheshagiri
filing OS.no.15962/2004 by claiming to be owner of site no.98
formed in converted land. Said suit on contest came to be
dismissed with observation that Smt.BS Mala was in possession and
enjoyment of property. Though questioned in RFA.no.184/2016,
said decree came to be affirmed with a compromise whereunder Sri
KT Sheshagiri admitted possession and enjoyment of Smt.BS Mala
and given up his claim. Plaint also refers to public notice dated
09.08.2021 issued prior to purchase, sinking of bore-well,
construction of compound wall and after sanction of loan from
Janata Seva Co-operative Bank Ltd., intention to begin construction
of residential building in terms of sanctioned building plan etc.
There is no specific assertion about construction having begun and
progressed upto pillars either in plaint or in affidavit filed in support
of I.A.no.1.
36. On other hand, specific case of defendants in written
statement and I.A.no.2 is that on death of original owner
Kenchappa, there was partition among his legal heirs, wherein four
daughters got 13 guntas each, while son Sri Nagaraj got 15 guntas.
All children together sold property to one Sri NR Nagaraju under
registered sale deed dated 17.11.2003, who thereafter formed
revenue layout in 1 Acre 27 guntas along with adjacent properties
without disturbing share of Smt.Revamma and sold site no.38 to
Smt.CS Shilpa Gowda on 22.03.2004. From her, defendants
purchased site no.38. They also claimed to have purchased
adjacent sites no.39, 40, 42 and 43 and got their names entered in
revenue records and also obtained khata. They also stated that
along with their father - Sri LR Shivarame Gowda and M/s Royal
Concorde Educational Trust obtained credit facility by mortgaging
site no.38 along with others initially with State Bank of India and
later taken over by Punjab National Bank. They further claim to be
in peaceful possession from date of purchase. They also alleged
that Smt.BS Mala colluding with plaintiffs and Srinivas had created
fraudulent sale deeds. Defendants specifically contend that plaintiffs
had not produced even a single document to show exact location of
suit property or any bifurcation, sub-division or amalgamation of
sites as claimed and therefore, plaintiffs' claim was in respect of
fictitious property and neither measurement nor description
matched with title deed of Smt.BS Mala. Thus, there was cloud over
title. It is contended, taking advantage of ex-parte order granted on
28.03.2023, plaintiffs had attempted to put up construction and suit
was not bonafide. They allege compound wall shown in photographs
was constructed by them and they had put up signboard on site to
indicate their possession.
37. From above, parties herein are claiming title and
possession in respect of suit property under respective title deeds
converging in registered partition deed dated 17.11.2003. In said
deed, description of 13 guntas, share allotted to Smt.Revamma,
namely 'A' schedule is as follows:
East by : Portion of 'C' schedule property allotted
. to Smt.Lakshmamma;
West by : Gavipuram House Building Co-op.
Society Layout;
North by : Portion of 'B' schedule property allotted
to Smt.Venkatalakshmamma;
South by : Gavipuram House Building Co-op.
Society Layout.
38. Boundary description does not show 'road' on any of
sides, unlike description of suit property, wherein 'road' is shown on
north side. Further, schedule of 7930 sq.ft. of land purchased by
Smt.BS Mala :
i) As per sale deed dated 30.04.2004 document no.4852
totally measuring 3.64 guntas or 3965 sq.ft.
East by : Remaining portion of vendor's property;
West by : Remaining portion of Smt.Revamma's
property;
North by : Road and remaining portion of
Smt.Revamma's property;
South by : Gavipuram House Building Co-op.
Society Layout.
ii) As per sale deed dated 30.04.2004 document no.4853
totally measuring 3.64 guntas or 3965 sq.ft.
East by : Property of Sri NR Nagaraju;
West by : Remaining portion of vendor's western
portion of property;
North by : Road and remaining portion of
Smt.Revamma's property;
South by : Gavipuram House Building Co-op.
Society Layout.
39. Further, description of suit property is with reference to
khata number, which is same as khata number of property
purchased by Smt.BS Mala from Smt.Revamma. Available material
does not refer to any division of property of Smt.BS Mala. Thus,
there would appear genuine doubt about description of suit
property by plaintiffs. As issuance of khata is one of factors taken
note of by trial Court for granting injunction, impugned order
suffers from being based on improper consideration.
40. Admittedly, both parties deny existence of properties of
other party, but source their title to registered deeds, ultimately
converging to Sri Kenchappa, but from different legal heirs of said
Kenchappa. While plaintiffs source title to Smt.Revamma and claim
suit property is portion of land allotted to share of Smt.Revamma,
purchased by Smt.BS Mala; defendants trace title to Sri NR
Nagaraju, who had purchased property from share of other legal
heirs of Kenchappa, except Smt.Revamma. Though sale deeds of
Smt.BS Mala cite Sri NR Nagaraju as owner of neighbouring land in
boundary description, same by itself would not substantiate title nor
appear fatal to plaintiffs' claim. However, khata number of suit
property which is 1698.75 sq.ft. being same as khata number of
property purchased by Smt.BS Mala, which is 7930 sq.ft. would cast
doubt about identity.
41. Adverting to grounds urged, indeed, it is rightly pointed
that suit property is sandwiched between property of
Smt.Revamma and remaining property of Smt.BS Mala. But, that
doesn't appear to either affect plaintiffs' case at this stage nor
substantiate that of defendants. Even contention that photographs
produced would not show any vacant site on either side of suit
property would be irrelevant and immaterial. Contention that
defendants' sale deed being prior to that of plaintiffs would also
appear to be immaterial, as it is held above that prima-facie there
does not appear to be dispute about title being substantiated.
42. Further, Ground Water Survey Report doesn't bear
particulars of land or site on which testing was done. Therefore,
same would not be material document regarding possession or title.
Likewise, sanction of loan in respect of property by itself would not
be substantial material either regarding possession or title. Though,
it is one of various factors taken note of by trial Court, its
conclusions do not pivot on it.
43. Even contention that complaint filed by defendants
before jurisdictional police station being prior to that of plaintiffs
would not be material. Normally in civil suits, police complaint
would be relevant only for purposes of establishing cause of action
and not as material document regarding title or possession.
Reference to assertion about execution of GPA by legal heirs of late
Kenchappa in favour of Sriramaiah would also not appear to be
material, as defendants don't source their title from him and such
execution would affect that of plaintiffs. Further, contention that
decree in suit filed by plaintiffs' vendor did not affect in perfection
of title would appear to be in vain as same was not amongst
consideration for granting injunction. Submission that records
produced by defendants were consistent in so far as title of
defendants would require rejection, as held above, there is no
apparent dispute about title at this stage.
44. Contention that continuation of injunction would cause
more hardship to defendants than plaintiffs would prima-facie
appear to be shallow, as it is neither pleaded nor established that
there was any attempt by them to put up construction and no
material is produced to substantiate for submitting application for
building permission etc. unlike plaintiffs who pleaded and produced
such records. Consequently, contention based on ratio in Wander
Limited case (supra), would not be of much assistance to
defendants, when ratio is that no party can be permitted to do
anything he could not do prior to suit nor prevent any party from
doing anything he could have done, but for filing of suit.
45. On other hand, plaintiffs contend that sale deed in
respect of Sri NR Nagaraju was registered on 17.11.2003 at 2:00
p.m, prior to registration of partition deed on same day at 4:30
p.m. Therefore, title of Sri NR Nagaraju is under cloud. They
contend that much prior to sale deed in favour of Sri NR Nagaraju,
Smt.Revamma and her children had executed GPA in favour of
Sriramaiah, who formed panchayat approved layout and sold sites
therefore, title of Sri NR Nagaraju executed on 17.11.2003 was
defective.
46. Contrary to specific pleadings in plaint, it is contended
that after purchase of land by Smt.BS Mala, due to interference,
she filed OS no.15962/2004 against Sri KT Sheshagiri for perpetual
injunction which was decreed after contest. Thereafter in appeal
against said decree, Sri KT Sheshagiri entered into compromise
conceding title and possession in favour of Smt.BS Mala. But
submission appears to be consistent with records.
47. Insofar as contention that photographs taken prior to
filing of suit do not show any signboard put by defendants as
claimed. Perusal of photographs produced by both parties reveals
that they are in respect of same land, but under different sources of
title and with different properties numbers and with both parties
denying existence of rival's property. Under such circumstances,
identity of land over which both parties are claiming right would be
in issue. Such being case, contention based on assertion of
defendants (in statement given before police in response to
complaint filed by plaintiffs), that possession of their site was taken
over by Bank would indicate defendants were not in possession,
would not hold much water as admitting to possession of site with
Bank, would run counter to plaintiffs claim equally.
48. Submission that this Court at time of disposal of
W.P.no.11163/2023 had directed to continue order of status-quo
with regard to suit property, would not be of any significance, as it
was only until disposal of I.As.no.1 and 2. Even contention that title
deeds of defendants indicate site no.38 as situated in layout formed
in Sy.no.42/63 would not appear to be substantiated on perusal of
documents produced by defendants.
49. Perusal of layout plan at Annexure-P shows location of
site no.38 with its measurements tallying with sale deed at
Annexure-R. Therefore, contention that layout map doesn't show
site no.38 would appear inaccurate.
50. Conclusions of trial Court that though defendants deny
existence of suit property, documents produced by plaintiffs
establishes prima-facie case, sanction of loan, Ground Water Level
Report issued after visiting site indicates possession and
photographs produced would show compound wall and there is no
initiation of construction by raising columns.
51. No pleading about progress of construction upto column
level. Khata number of suit property same as khata number of
larger extent belonging to vendor, though suit property was only
portion thereof without any pleading nor material to show
bifurcation.
52. There is no material produced by defendants to
substantiate about initiation to begin construction. As per
contention urged by plaintiffs before this Court, layout was not
already developed by Sri K. Sriramaiah and site was sold and
Smt.BS Mala got resolved earlier disputes with purchasers.
53. Plaintiffs have also contended that GPA holder Sri K.
Sriramaiah had developed layout with approval from TMC in year
1995-96. Despite same, boundary description of share of
Smt.Revamma and in partition deed does not mention existence of
road on any side.
54. Though both parties alleged non-existence of property
of other, as both source their title under respective registered sale
deeds, without seriously disputing or substantiating same, dispute
at best can be limited to dispute about identity of property and not
title.
55. Reference by trial Court to Ground Water Test report for
giving finding on possession even when said report doesn't mention
property of which test was conducted and reference to sanction of
loan by Janata Co-operative Bank, when such document is not
recognized document of title or possession and as observed about
contentions urged with reference to photographs produced by rival
parties about failure to show vacant space or about absence of
compound wall cannot be determining factors by themselves, but
can be used or referred for purposes of corroboration.
56. In instant case, trial Court has taken note of sale deeds
and also building permission obtained by plaintiffs while passing
impugned order. Therefore, it cannot be stated that findings of trial
Court are without any basis. But, as observed above, there is
scanty reference to material placed by defendants when defendants
have also relied upon registered sale deed corroborated with khata
certificates, property tax paid receipts and pleaded about their
property having been mortgaged to Punjab National Bank which
they also claimed had taken possession. In view of above, it has to
be held that conclusion of trial Court is not after taking note of all
available material and in proper perspective.
57. At this stage, it is seen after grant of ex-parte order of
temporary injunction on 28.03.2023, this Court in
W.P.no.11163/2023 filed by defendants initially granted interim
order directing parties to maintain status-quo and continued same
till disposal of I.As.no.1 and 2 by trial Court while disposing said
writ petition. Thereafter, this Court in present appeal once again
granted interim order dated 24.04.2024 directing parties to
maintain status-quo with regard to suit property. Thus, order
directing both parties to maintain status-quo in all respects with
regard to suit property as being in existence for more than one and
half years. Under above circumstances, instead of remitting matter
back to trial Court for fresh consideration, it is found appropriate to
direct both parties to continue to maintain status-quo with regard
to suit property till disposal of suit and balance interest of both
parties by directing trial Court to record evidence and dispose of
suit in time bound manner. Thus, point for consideration is
answered partly in affirmative. Consequently, following:
ORDER
Appeal is allowed in part, impugned order dated 13.03.2024
passed by XXV Additional City Civil and Sessions Judge, Bengaluru,
(CCH-23), in O.S.no.2092/2023 allowing I.A.no.1 filed under Order
XXXIX Rules 1 and 2 of CPC and rejecting I.A.no.2 filed under Order
XXXIX Rule 4 of CPC are modified directing both parties to maintain
status-quo with regard to suit property in all respects until disposal
of suit by further directing them to cooperate for same by avoiding
seeking unnecessary adjournments. Trial Court is directed to
dispose of suit preferably within one year from today by setting
specific timeline for each stage of suit.
All contentions of both parties are kept open and observations
and conclusions by trial Court at time of passing impugned order as
well as by this Court shall be confined to interim stage and shall not
come in way of trial Court passing appropriate judgment on basis of
evidence adduced during trial.
Sd/-
(RAVI V. HOSMANI)
JUDGE
GRD
