Karnataka High Court
Dr. K. S. Bhargava vs Sri. Gangaiah on 29 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 2301 of 2024
C/W MFA No. 2407 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.2301 OF 2024 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.2407 OF 2024 (CPC)
IN MFA No.2301/2024:
BETWEEN:
1. DR. K.S.BHARGAVA,
S/O K.V. SUBBANNA,
AGED ABOUT 48 YEARS,
R/AT NO.316/1,
SUDHA DENTAL CLINIC,
B.H.ROAD, THIPATURU,
TUMKUR DISTRICT.
2. DR. PRAVEEN KUMAR M.A.,
S/O LATE M.L.ANNE GOWDA,
AGED ABOUT 51 YEARS,
Digitally signed R/AT PLOT NO.310,
by DEVIKA M
E - SPRINGS SEASONS APARTMENTS,
Location: HIGH
COURT OF NO.1, KALPANA CHAWLA ROAD,
KARNATAKA RMV 2ND STAGE, BHUPASANDRA,
BENGALURU-560094.
...APPELLANTS
(BY SRI. SHARATH S. GOGI, ADVOCATE)
AND:
SRI GANGAIAH
S/O KADIRAPPA
SINCE DEAD BY HIS LRS.
1. SRI NARAYANASWAMY,
S/O GANGAIAH,
AGED ABOUT 49 YEARS.
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MFA No. 2301 of 2024
C/W MFA No. 2407 of 2024
2. SRI NAGARAJU,
S/O GANGAIAH,
AGED ABOUT 47 YEARS.
3. SRI MANJUNATHA,
S/O GANGAIAH,
AGED ABOUT 45 YEARS.
4. SRI NARASIMHA MURTHY,
S/O GANGAIAH,
AGED ABOUT 43 YEARS.
5. SRI MUNIRAJU,
S/O GANGAIAH,
AGED ABOUT 39 YEARS.
APPELLANTS NO.1 - 5 ARE
R/O. MEESIGANAHALLI VILLAGE,
JALA HOBLI,
BENGALURU NORTH TALUK.
6. DR. K. JAYACHANDRA,
S/O VENKATARAMANA RAJU,
AGED ABOUT 47 YEARS,
R/AT FLAT NO.115,
RADIANT DAFODILS APARTMENTS,
AGARA ROAD, HORAMAVU,
BENGALURU-560078.
...RESPONDENTS
(BY SRI. Y.R.SADASHIVA REDDY, SENIOR COUNSEL A/W
SRI RAHUL S. REDDY, ADVOCATE FOR R1 TO R5)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED 27.01.2023
PASSED ON I.A.NO.1 IN OS.NO.1360/2023 ON THE FILE OF THE
III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI, C/C OF II ADDITIONAL SENIOR CIVIL JUDGE
AND JMFC, DEVANAHALLI, DISMISSING THE I.A.NO.1 FILED
UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
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MFA No. 2301 of 2024
C/W MFA No. 2407 of 2024
IN MFA NO.2407/2024:
BETWEEN:
1. DR. K.S.BHARGAVA,
S/O. K.V. SUBBANNA,
AGED ABOUT 48 YEARS,
R/AT NO.316/1,
SUDHA DENTAL CLINIC,
B.H.ROAD, THIPATURU,
TUMKURU DISTRICT.
2. DR. PRAVEEN KUMAR M.A.
S/O. LATE M.L.ANNE GOWDA,
AGED ABOUT 51 YEARS,
R/AT PLOT NO.310,
E-SPRINGS SEASONS APARTMENTS,
NO.1, KALPANA CHAWLA ROAD,
RMV 2ND STAGE, BHUPASANDRA,
BENGALURU-560 094.
...APPELLANTS
(BY SRI. SHARATH S. GOGI, ADVOCATE)
AND:
SRI. GANGAIAH,
S/O. KADIRAPPA,
SINCE DEAD BY HIS LRS.
1. SRI. NARAYANASWAMY,
S/O. GANGAIAH,
AGED ABOUT 49 YEARS.
2. SRI. NAGARAJU,
S/O. GANGAIAH,
AGED ABOUT 47 YEARS.
3. SRI. MANJUNATHA,
S/O. GANGAIAH,
AGED ABOUT 45 YEARS.
4. SRI. NARASIMHA MURTHY,
S/O. GANGAIAH,
AGED ABOUT 43 YEARS.
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MFA No. 2301 of 2024
C/W MFA No. 2407 of 2024
5. SRI. MUNIRAJU,
S/O. GANGAIAH,
AGED ABOUT 39 YEARS,
APPELLANTS NO.1 TO 5 ARE
R/O. MEESIGANAHALLI VILLAGE,
JALA HOBLI,
BENGALURU NORTH TALUK.
6. DR. K. JAYACHANDRA,
S/O. VENKATARAMANA RAJU,
AGED ABOUT 47 YEARS,
R/AT FLAT NO.115,
RADIANT DAFODILS APARTMENTS,
AGARA ROAD, HORAMAVU,
BENGALURU-560 078.
...RESPONDENTS
(BY SRI. Y.R.SADASHIVA REDDY, SENIOR COUNSEL A/W
SRI RAHUL S REDDY, ADVOCATE FOR R1 TO R4;
SRI VISWANATH SHETTY V., ADVOCATE FOR C/R5;
NOTICE NOT ORDERED IN R/O R6)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 27.01.2023 PASSED ON IA
NO.2 IN O.S.NO.1360/2023 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI,
C/c. OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLIA, DISMISSING IA NO.2 FILED UNDER ORDER 39
RULE 1 AND 2 R/W SECTION 151 OF CPC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 2301 of 2024
C/W MFA No. 2407 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 respondents.
2. These two appeals are filed against the rejection of
I.A.Nos.1 and 2 passed by the Trial Court in O.S.No.1360/2023.
3. The factual matrix of the case of the
plaintiffs/appellants before the Trial Court while seeking the
relief of declaration and permanent injunction, it is contended
that 'A' schedule property measures 8 acres. It is contended
that defendant No.7 had formed sites in the 'A' schedule
property and sold 36 sites. Out of that, the plaintiffs have
purchased four sites. They are the 'B' and 'C' schedule
properties. The defendants are attempting to undertake the
massive ground leveling work in order to form altogether a new
layout. In the guise of that, there is a possibility of the
defendants alienating the sites described in 'B' and 'C'
properties. It is contended that at the time when a suit was
filed in O.S.No.625/2013 before the Principal Civil Judge,
Devanahalli, the Court was pleased to grant an order of
injunction restraining alienation of 'A' schedule property by the
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defendants. Due to conversion, the value of 'B' and 'C'
properties is beyond the pecuniary jurisdiction of the said Court
and therefore the plaint has been returned to the appropriate
Court. The said Court has not considered to extend the interim
order although decision of the Hon'ble Supreme Court, since
there was already an order of temporary injunction in favour of
the appellants. There is a possibility of the defendants creating,
encumbering in respect of schedule properties. The same is
very imminent. Therefore, to protect the interest of the
plaintiffs, it is necessary to restrain the defendants and hence
filed an application before the Trial Court and the suit was
presented before the III Additional Senior Civil Judge and JMFC,
Devanahalli and concurrent charge of II Additional Senior Civil
Judge and JMFC, Devanahalli.
4. The defendants appeared and filed the written
statement contending that the suit itself is not maintainable.
The plaintiffs have no locus standi to seek the prayer. The
plaintiffs are total strangers to 'A' schedule property. The
defendant Nos.1 to 6 are the absolute owners of 'A' schedule
property and they are in possession of the same. It is
contended that defendant Nos.1 to 6 were in need of fund for
domestic as well as to meet legal necessity and hence
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approached defendant No.7, who is a developer and financier.
He agreed to lend required financial assistance and demanded
the defendants the security documents towards repayment of
borrowed loan. Accordingly, two documents came to be
registered. The defendants understood that alleged joint
development agreement and general power of attorney dated
31.03.2009 have been obtained by means of fraud. The
defendant Nos.1 to 6 never intended to execute any document
authorizing defendant No.7 to develop land or sell the same.
The defendants are not interested in alienation of 'A' schedule
property. Therefore, the said documents are not binding on
them. The said documents do not create any right in favour of
defendant No.7 with respect to schedule property or in favour of
any alleged purchasers including the plaintiffs. The approval of
layout by BIAAPA as stated in the plaint and its conversion is
false. 'A' schedule property has been an agricultural land from
the inception even in the year 1985 and subsequently in the
year 2008-09 and thereafter also. 'A' schedule property has
been in the names of defendant Nos.1 to 6 and they are raising
crops such as ragi, jowar, etc. Therefore, the contention of the
plaintiffs in respect of 'A' schedule property with respect to
conversion and approval of layout is not tenable. Hence, the
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plaintiffs have not made out any case for grant of temporary
injunction. It is also contended that there is no privity of
contract between the plaintiffs and defendant Nos.1 to 6. The
plaintiffs have not paid any contribution to these defendants.
Since defendant No.7 has played fraud on defendant Nos.1 to 6
on account of fabrication of documents, joint development
agreement and GPA in favour of defendant No.7 gets
automatically terminated. The defendant Nos.1 to 6 are also
victims of the fraud played by defendant No.7. The sale deeds
in respect of 'B' and 'C' schedule properties are non-est in the
eye of law and no value can be attached to the said sale deeds.
Hence, prayed the Trial Court to dismiss the application and also
contend that defendant Nos.1 to 6 have cancelled the joint
development agreement dated 31.03.2009 on 26.12.2022 and
defendant Nos.1 to 6 have already registered private complaint
against defendant No.7 and it is pending and hence not entitled
for any relief.
5. The Trial Court having considered the pleadings of
the plaintiffs and the defendants, formulated the points whether
the plaintiffs have established prima facie case to grant
temporary injunction, whether the balance of convenience lies in
favour of the plaintiffs and whether irreparable loss or hardship
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will be caused to the plaintiffs if injunction as prayed in I.A.No.1
is not granted and answered all the points in the negative in
coming to the conclusion that the plaintiffs have stated that they
met defendant No.7 on 31.07.2013 and demanded him to
restore developments made in 'A' schedule property and he
stated them that 'A' schedule property is agricultural land. It is
stated that the defendants have alienated all the sites in 'A'
schedule property and they have no right left with them to
alienate any portion of 'A' schedule property. Thus being the
case, there is no question of further alienation. Apart from this,
as per the say of the plaintiffs, all the sites are sold in 'A'
schedule property to various persons and they are not made
party to the suit. Therefore, the plaintiffs cannot contend that
'A' schedule property cannot be sold. As per the say of the
plaintiffs, if there are sale transactions in 'A' schedule property,
the purchasers are also necessary parties. Apart from this,
there is no proper identification of 'B' and 'C' schedule properties
in the 'A' schedule property. It is the case of the plaintiffs that
defendant No.7 has misrepresented stating that 'A' schedule
property is converted land and layout plan is approved by the
competent authority. It is contended that they have produced
the sale deed executed by one Venkatachalapathy in favour of
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Srinivas and Anitha along with encumberance certificate. They
show further transaction in respect of 'A' schedule property. But
they are not parties to the suit. The document issued by BIAPPA
shows that there is no approved layout plan in respect of
Sy.No.80 of Meesaganalli Village. The plaintiffs have purchased
the property without verifying the relevant documents at the
time of purchase and also shows that there are various
purchasers in respect of 'A' schedule property and there is no
site left for sale. But the purchasers are not parties in the suit
and therefore the question of restraining the defendants from
alienating the 'A' schedule property does not arise and hence
rejected the application in coming to the conclusion that not
made out any prima facie case.
6. The learned counsel for the appellants would
vehemently contend that the Trial Court committed an error in
rejecting the application and the fact that the original owners
i.e., defendant Nos.1 to 6 have executed the joint development
agreement in favour of defendant No.7 is not in dispute. The
learned counsel contend that after the execution of joint
development agreement by defendant Nos.1 to 6, they have
executed the GPA in favour of defendant No.7, wherein it is
recited that the land is converted for residential use and the
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same is binding on the defendants and now it cannot be said
that the plaintiffs were not diligent before buying the sites. The
Trial Court wholly erred in not considering the fact that the joint
development agreement holder has given 90% share in 'A'
schedule property having received the sale consideration and
the joint development agreement also given power to execute
the sale deed and accordingly sale deeds are executed in favour
of the plaintiffs. Having received the amount of
Rs.2,50,00,000/- and apart from that, Rs.60,00,000/- which
was refundable deposit, the documents are produced and the
same is not considered by the Trial Court. The Trial Court ought
not to have dismissed the application when there was a sale
deed in favour of the plaintiffs and the very conclusion that no
identity of 'B' and 'C' schedule properties is erroneous. The
learned counsel contend that while purchasing the property, the
property has been identified by producing the plan and in terms
of the plan only, the property was purchased and now the
subsequent purchaser is changing and prepared the new layout
plan and the same is not approved and making an attempt to
sell the property. The Trial Court committed an error in coming
to the conclusion that the plaintiffs have not made out any
prima facie case and hence it requires interference of this Court.
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7. Per contra, the learned counsel for the respondents
would contend that defendant No.7, who is an alleged joint
developer, played fraud and obtained the document from
respondent Nos.1 to 6 and also no amount was paid as
contended by the plaintiffs to the tune of Rs.2,50,00,000/- and
when the defendants came to know about the fraud, the very
joint development agreement was cancelled. The learned
counsel contend that the property is also sold in favour of
Venkatachalapathy and he got the conversion and formed the
new layout and even if offer is made to give sites in favour of
appellants/plaintiffs in respect of the very same dimension in
terms of plan 'A', 'B' and 'C', the appellants/plaintiffs are not
coming forward to settle the issue. The learned counsel contend
that even the joint development agreement holder who had
executed the sale deed in favour of the appellants also executed
a confirmation deed in favour of subsequent purchaser and
hence the question of exercising discretion in favour of the
appellants/plaintiffs does not arise.
8. Having heard the learned counsel for the appellants
and the learned counsel for the respondents and also
considering the grounds urged in the appeal memo, the points
that arise for the consideration of this Court are:
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(i) Whether the Trial Court committed an error in
rejecting the applications filed under Order 39
Rules 1 and 2 of CPC and whether it requires
interference of this Court?
(ii) What order?
9. Having heard the respective counsel and also on perusal
of the material available on record, it is not in dispute that
respondent Nos.1 to 6 are owners of 'A' schedule property. It is
also not in dispute that joint development agreement was
executed on 31.03.2009 in favour of one Dr.K.Jayachandra and
same day, executed registered General Power of Attorney in his
favour. It is also not in dispute that, in the said registered joint
development agreement, it is agreed that share of the developer
is shown as 90% and land owner share is only 10%. The
document also disclose that the developer has paid an amount
of Rs.60,00,000/- as refundable security deposit by way of
cheque and an amount of Rs.2,50,00,000/- by way of cash
under separate receipt.
10. The very contention of the learned counsel for
respondent Nos.1 to 6 is that the very document of joint
development agreement and also power of attorney is obtained
by playing fraud. However, the fact that the documents are
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registered is also not in dispute. It is also important to note that
developer respondent No.6 having formed a layout, executed
three sale deeds in favour of appellants/plaintiffs i.e., 'B' and 'C'
schedule properties i.e., in total 4 sites measuring 40 x 60 of
two sites and 30 x 40 of two sites.
11. It is also important to note that, it is the case of the
plaintiffs that, when an attempt was made by defendant Nos.1
to 7 to alienate the schedule 'A' property and remove the
boundary stone in the layout, it is the contention of the plaintiffs
that they met respondent No.6 herein to restore boundary
stones to identify the sites formed in schedule property, to
defeat the rights of the plaintiffs. The fact that earlier suit was
filed in O.S.No.625/2013 and relief of temporary injunction was
granted is not in dispute. It is also not in dispute that no
application is filed to vacate the interim order passed in
O.S.No.625/2013. It is also not in dispute that in view of the
jurisdiction, the plaint was returned with a direction to present
the same before the competent Court and interim order was
extended from time to time till the plaint was returned on
20.12.2023 and thereafter, fresh application was filed before the
Trial Court seeking the relief of temporary injunction.
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12. No doubt, learned counsel appearing for the
respondent Nos.1 to 6 would contend that that they have
offered several sites to the appellants, but the fact is that
learned counsel for the appellants would vehemently contend
that earlier joint development agreement holder executed 38
sale deeds and the allegation is also that, now in view of
purchasing of property by Venkatachalapathy, he also formed
layout and superimposed the new plan and attempted to sell the
property. The appellants also not dispute the fact that in terms
of the earlier layout plan, the same was sold in their favour
identifying site Nos.20, 90 and 91 and the same is also
approved layout and the fact that they superimposed the layout
plan is not proved. When such being the case, it is not in dispute
that these four sites which have been carved out of Sy.No.80.
13. No doubt, earlier, in view of the layouts sold to the
appellants, property is identifiable, the measurement is also not
in dispute. No doubt, the respondent Nos.1 to 3 contend that
even property sold in favour of Venkatachalapathy, they are
ready to execute the document to the extent of 7200 sq.ft.
which the appellants/plaintiffs had purchased. Now the dispute
is that in terms of the earlier non-approved layout, already
properties are sold and now the respondents have sold the
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property in favour of Venkatachalapathy and also the person,
who had the earlier joint development agreement i.e., defendant
No.7, who also executed the confirmation deed in favour of the
subsequent purchaser. When the new purchaser prepared new
plan, admittedly, the properties are not converted and different
conversions are mentioned, while executing the joint
development agreement, conversion was shown of the year
1984-85 and while executing the document in favour of the new
purchaser, Venkatachalapathy has shown that it was conversion
of the year 1994-1995 and there was no authenticated
document in respect of conversion before the Court. When such
being the case, even if the respondents come forward to
execute the sale deed for the dimension of 7200 sq.ft., the same
is also in view of superimposing unapproved plan which would
lead to further litigation in the matter.
14. When such being the case, the Trial Court ought to
have taken note of said fact into consideration and when there is
no dispute with regard to execution of earlier joint development
agreement in the year 2009 and subsequent to the joint
development agreement, the joint development agreement
holder was having 90% of the share, whether the document of
joint development agreement and power of attorney are
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obtained by playing fraud is a matter of trial and the same has
to be adjudicated only after leading evidence before the Trial
Court. The fact that appellants/plaintiffs have purchased four
sites which is clearly described in Schedule 'B' and 'C' is not in
dispute and if any document is obtained by fraud by the joint
development agreement holder i.e., defendant No.7, owners
have to initiate proceedings and no such initiation of
proceedings against him.
15. No doubt, the documents also reveal that earlier
there was complaint and FIR was also registered, now the
material discloses that even joint development agreement
holder, who had executed the sale deed in favour of the joint
agreement holder has joined hands with the original owner and
subsequent purchaser. When such being the case, these
materials ought to have been taken note by the Trial Court while
rejecting the application in I.A.No.I. When the
appellants/plaintiffs have purchased the property by paying the
sale consideration, interest of the plaintiffs ought to have been
protected by the Trial Court. While granting the relief of
temporary injunction, the Court has to take note of prima facie
material and particularly, the Trial Court ought to have taken
note of the same and instead, erroneously comes to the
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conclusion that there is no prima facie case and balance of
convenience to grant the relief of temporary injunction in favour
of the plaintiffs, even though registered documents were placed
before the Court. Therefore, the Trial Court committed an error
and it requires restraining the defendants from alienating the
properties, till the disposal of the suit. Hence, the order passed
by the Trial Court on I.A.No.I is set aside.
16. The learned counsel appearing for the
appellants/plaintiffs in M.F.A.No.2407/2024 would submit that
the present appeal is filed challenging dismissal of I.A.No.II,
wherein prayer is sought to restrain the defendants from
undertaking any work in 'A' schedule property, till disposal of
the suit. The Court cannot grant such relief in respect of entire
area of 8 acres. Hence, I.A.No.II rejected by the Trial Court
does not require any interference by this Court. However, the
plaintiffs claim is only in respect of 'B' and 'C' schedule
properties and the respondents while developing the said
property, not to change the nature of 'B' and 'C' schedule
properties which has been shown in the schedule to the suit.
17. In view of the discussion made above, I pass the
following:
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ORDER
(i) The appeal in M.F.A.No.2301/2024 is allowed.
The order of the Trial Court is set aside and
the application filed by the appellants/plaintiffs
in I.A.No.I is allowed restraining the
defendants not to alienate 'B' and 'C' schedule
properties, till disposal of the suit.
(ii) The appeal in M.F.A.No.2407/2024 is allowed-
in-part modifying the order passed on
I.A.No.II passing restraint order against the
defendants not to change the nature of 'B' and
'C' schedule properties, till disposal of the suit.
Sd/-
(H.P.SANDESH)
JUDGE
MD/ST
