Karnataka High Court
Mr Umashankar B vs Mr S Arumugam on 16 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:41814
MFA No. 5402 of 2024
C/W MFA No. 5403 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.5402 OF 2024 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.5403 OF 2024 (CPC)
IN MFA No.5402/2024:
BETWEEN:
1. MR. UMASHANKAR B.
S/O LATE MR.BASAVALINGAPPA,
AGED ABOUT 61 YEARS,
RESIDING AT NO.111
3RD CROSS, TELECOM LAYOUT,
K.P.AGRAHARA
BENGALURU-560 040.
...APPELLANT
(BY SRI. AJIT P.B., ADVOCATE)
Digitally signed AND:
by DEVIKA M
Location: HIGH
COURT OF 1. MR. S. ARUMUGAM,
KARNATAKA S/O MR. A. SWAMINATHAN,
AGED ABOUT 56 YEARS.
2. MR. A. SANTHOSH,
S/O S. ARUMUGAM,
AGED ABOUT 25 YEARS.
BOTH ARE RESIDING AT NO.519,
MAHALAKSHMI NILAYAM, YELAPPA LAYOUT,
BESIDE CHALLAGHATTA, KENGERI,
BENGALURU-560 060.
...RESPONDENTS
(BY SMT. ARUNA BHAT, ADVOCATE FOR
SRI AJAY T., ADVOCATE FOR R1 AND R2)
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NC: 2024:KHC:41814
MFA No. 5402 of 2024
C/W MFA No. 5403 of 2024
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 02.07.2024 PASSED ON IA
NO.1 IN O.S.NO.1052/2024 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RUAL DISTRICT,
BENGALURU, C/ch. I ADDITIONAL SENIOR CIVIL JUDGE,
BENGALURU RURAL DISTRICT, REJECTING IA NO.1 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
IN MFA NO.5403/2024:
BETWEEN:
1. MR. UMASHANKAR B.,
S/O LATE MR.BASAVALINGAPPA,
AGED ABOUT 61 YEARS,
RESIDING AT NO.111, 3RD CROSS,
TELECOM LAYOUT, K.P.AGRAHARA,
BENGALURU-560 040.
...APPELLANT
(BY SRI. AJIT P.B., ADVOCATE)
AND:
1. MR. S. ARUMUGAM,
S/O MR. A. SWAMINATHAN,
AGED ABOUT 56 YEARS.
2. MR. A. SANTHOSH,
S/O S. ARUMUGAM,
AGED ABOUT 25 YEARS.
BOTH ARE RESIDING AT NO.519,
MAHALAKSHMI NILAYAM, YELAPPA LAYOUT,
BESIDE CHALLAGHATTA, KENGERI,
BENGALURU 560 060.
...RESPONDENTS
(BY SMT. ARUNA BHAT, ADVOCATE FOR
SRI. AJAY T, ADVOCATE FOR R1 AND R2)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 02.07.2024 PASSED ON IA
NO.2 IN O.S.NO.1052/2024 ON THE FILE OF THE I ADDITIONAL
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NC: 2024:KHC:41814
MFA No. 5402 of 2024
C/W MFA No. 5403 of 2024
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, REJECTING IA NO.2 FILED UNDER ORDER 39
RULE 1 AND 2 OF CPC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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. These two appeals are taken up together with
the consent of both the learned counsel, since the Trial
Court disposed of both the I.As. by passing the common
order.
3. The learned counsel for the appellant submits
that the suit is filed for the relief of declaration based on
the sale deed as well as sought for the relief to declare the
gift deed executed by defendant No.1 in favour of
defendant No.2 as null and void. The suit is also filed for
the relief of recovery of possession. The respondents also
not disputes the relief sought in the suit. The learned
counsel for the appellant contend that two I.As. are filed,
one is not to put up further construction and change the
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nature of the property and another application is filed not
to alienate the same and both the I.As. are rejected.
4. The learned counsel for the respondents contend
that already they have put up the construction and the
same is in final stage.
5. The learned counsel for the appellant submits
that even if any such construction is made, they shall not
claim any equity and in view of the documents executed by
defendant No.1.
6. The learned counsel for the respondents
disputes the very execution of power of attorney and also
contend that the power of attorney holder himself got
transferred the property in his favour and the Trial Court
also given the reasoning while rejecting the applications.
7. In view of the submissions made by the learned
counsel for the appellant and the learned counsel for the
respondents, it is appropriate to direct the respondents not
to claim any equity, in case the appellant succeeds in the
suit. It is also appropriate to direct the respondents not to
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alienate the property during the pendency of the suit, since
there is a dispute with regard to the very title between the
parties and the plaintiff claims that defendant No.1
executed the registered power of attorney as well as the
sale agreement. The learned counsel for the respondents
submits that no such power of attorney was executed and
the same is obtained fraudulently. These are the issues to
be considered by the Trial Court while considering the
matter on merits whether they have executed the general
power of attorney or not and whether the entire sale
consideration has been received or not and whether the
interest has been transferred by receiving the entire sale
consideration and power of attorney is coupled with
interest. In view of the construction made by the
respondents, the respondents cannot claim any equity and
the respondents are directed not to alienate or create any
third party right during the pendency of the suit.
8. With these directions, both the appeals are
disposed of. The Trial Court is directed to dispose of the
matter within a time bound period of 18 months from the
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date of receipt of copy of this order, since the suit is of the
year 2024. Both the appellant and the respondents and
their respective learned counsel are directed to assist the
Trial Court to dispose of the suit within the time bound
period of 18 months from the date of the receipt of the
copy of this order. The respective learned counsel are
directed to furnish the copy of this order to the Trial Court,
forthwith.
Sd/-
(H.P.SANDESH)
JUDGE
MD
