Karnataka High Court
Smt. Nagamma vs Smt. Jayamma on 29 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:43574
MFA No. 1546 of 2023
C/W MFA No. 1548 of 2023
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. 1546 OF 2023
C/W
MISCELLANEOUS FIRST APPEAL NO. 1548 OF 2023
IN MFA No. 1546/2023
BETWEEN:
SMT. NAGAMMA
AGED ABOUT 39 YEARS,
W/O VENKATESH,
R/AT NO. 183, 23RD CROSS,
MARUTHINAGARA SLUM
ITTAMADU, BSK 3RD STAGE,
BENGLAURU -560 085
...APPELLANT
(BY SRI. ASHOK PATIL., ADVOCATE)
Digitally signed
by DEVIKA M
AND:
Location: HIGH
COURT OF
KARNATAKA 1. SMT. JAYAMMA
AGED ABOUT 55 YEARS,
W/O N NAGARAJ
R/AT NO. 24, 23RD B CROSS,
MARUTHINAGARA SLUM
ITTAMADU BSK 3RD STAGE,
BENGALURU-560085
2. SRI. N NAGARAJ
AGED ABOUT 60 YEARS
S/O NANJAPPA
R/AT NO. 24, 23RD B CROSS,
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MFA No. 1546 of 2023
C/W MFA No. 1548 of 2023
MARUTHINAGARA SLUM
ITTAMADU BSK 3RD STAGE,
BENGALURU- 560085
3. SRI. PUNEETH KUMAR N
AGED ABOUT 26 YEARS,
S/O N NAGARAJU,
R/AT NO. 24, 23RD B CROSS,
MARUTHINAGARA SLUM
ITTAMADU BSK 3RD STAGE,
BENGALURU- 560085
4. THE COMMISSIONER
BRUHATH BENGALURU MAHANAGARA PALIKE
N. R. SQUARE, BENGLAURU- 560002
5. THE COMMISSIONER
KARNATAKA SLUM CLEARANCE BOARD
NO.55, RISALVAR ROAD,
SHESHADRIPURAM
BENGALURU- 560020.
...RESPONDENTS
(BY SRI.K.H.THIMMAIAH., ADVOCATE FOR R2 & R3
SRI. BATHE GOWDA., ADVOCATE FOR R4
SRI. R.MANJUNATH., ADVOCATE FOR R5)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 09.11.2022 PASSED ON
I.A.NO.1 IN OS.NO. 2285/2022 ON THE FILE OF THE X
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
CCH-26, REJECTING THE I.A.NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 OF CPC AND ETC.
IN MFA NO. 1548/2023
BETWEEN:
SMT. RAJESHWARI
AGED ABOUT 43 YEARS,
W/O RAJU,
R/AT NO. 182, 23RD CROSS,
MARUTHINAGARA SLUM
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MFA No. 1546 of 2023
C/W MFA No. 1548 of 2023
ITTAMDU, BSK 3RD STAGE
BENGALURU -560 085.
...APPELLANT
(BY SRI. ASHOK PATIL., ADVOCATE)
AND:
1. SMT. JAYAMMA
AGED ABOUT 55 YEARS,
W/O N NAGARAJ
R/AT NO. 24, 23RD B CROSS,
MARUTHINAGARA SLUM
ITTAMADU BSK 3RD STAGE,
BENGALURU -560085
2. SRI. N. NAGARAJ
AGED ABOUT 60 YEARS,
S/O NANJAPPA
R/AT NO. 24, 23RD B CROSS,
MARUTHINAGARA SLUM
ITTAMADU BSK 3RD STAGE,
BENGALURU -560085
3. SRI. PUNEETH KUMAR N
AGED ABOUT 26 YEARS,
S/O NAGARAJU
R/AT NO. 24, 23RD B CROSS,
MARUTHINAGARA SLUM
ITTAMADU BSK 3RD STAGE,
BENGALURU 560085
4. THE COMMISSIONER
BRUHATH BENGALURU
MAHANAGARA PALIKE,
N.R. SQUARE,
BENGALURU 560002
5. THE COMMISSIONER
KARNATAKA SLUM CLEARANCE BOARD,
NO. 55 RISALVAR ROAD,
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MFA No. 1546 of 2023
C/W MFA No. 1548 of 2023
SHESHADRIPURAM,
BENGALURU -560020.
...RESPONDENTS
(BY R1 SERVED & UNREPRESENTED
SRI.K.H.THIMMAIAH., ADVOCATE FOR R2 & R3
SRI. BATHEGOWDA K.V., ADVOCATE FOR R4
SRI. R.MANJUNATH., ADVOCATE FOR R5)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.151 OF
CPC, AGAINST THE ORDER DATED 09.11.2022 PASSED ON
I.A.NO.1 IN O.S.NO.2400/2022 ON THE FILE OF X ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-26),
REJECTING I.A.NO.1 FILED U/O.39 RULES 1 AND 2 OF CPC AND
ETC.
THESE APPEALS, ARE COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and the
counsel appearing for respondents.
2. These two Miscellaneous First Appeals are filed by
the appellants on the rejection of I.A.No.1 in both the suits
in O.S.No.2285/2022 and O.S.No.2400/2022 by the Trial
Court by order dated 9th November, 2022, wherein exparte
order of temporary injunction granted has been vacated.
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3. The main contention of the appellant in MFA
No.1546/2023 arising out of the rejection of I.A.No.1 filed
in O.S.No.2285/2022 that the Trial Court has committed
an error in dismissing the I.A.No.1 and has failed to take
into consideration the facts that admittedly the plaintiff is
not a party to the earlier suit in O.S.No.4678/2005 filed by
defendants No.1 to 3 and hence, the findings in the said
judgment are not applicable and not binding on the
plaintiff or to the case on hand. The Trial Court held that
the plaintiff has made out a prima-facie case, but comes to
the conclusion that no balance of convenience lies in
favour of the plaintiff and no hardship. It is contended
that the plaintiff has produced proof of possession and
Identity Card issued by the Slum Board, showing the
extent of land allotted to the plaintiff and BBMP also
accepted the tax which clearly discloses that the plaintiff is
in possession and there is threat of dispossession. The
Trial Court has not independently gone into the merits of
the case and simply relying on the judgment passed in
O.S.No.4678/2005, which came to confirmed by the
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Hon'ble Division Bench of this Court in RFA No.611/2009.
It is also contended that the Trial Court has failed to see
the endorsement issued by the concerned ADLR that there
is no Sy.No.42/2 as claimed by the respondents. Hence, it
is obvious that the defendants have managed to mislead
the Court and have obtained decree without making the
appellant as party to the suit and having giving the correct
survey number of the site number. Hence, the order
impugned is liable to be set aside.
4. In MFA No.1548/2023, wherein also the
application filed in I.A.No.1 by the plaintiff/appellant was
dismissed and hence, in this appeal it is contended that
the Trial Court has failed to see that admittedly the
appellant/plaintiff is not a party to the earlier suit in
O.S.NO.4678/2005 and similar grounds have been urged
before this Court as contended in other appeal i.e., MFA
No.1546/2023. The learned Counsel vehemently
contended that the plaintiffs in both the respective suits
contended that the suits have been filed for permanent
injunction in respect of the 'A' schedule properties bearing
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site Nos.182 and 183 in Sy.No.3 of Maruthinagara Slum,
Ittamadu, BSK 3rd Stage, Ward No. 161, Bengaluru South
Division, Bengaluru. It is also claimed that the plaintiff is
the absolute owner in possession of this property.
Originally the land in Sy.No.3 measuring 4 acres 37 guntas
of Government gomal land situated in Ittamadu village
and now is coming within the limits of BBMP. It is stated
that the applicant along with 303 homeless people of
Economically Weaker Sections of the Society acquired the
land in various dimensions of sites and constructed a shed
and accordingly the Government is said to have notified
the said area and declared as 'Maruthi Nagara Slum' and
transferred the land to the Karnataka Slum Clearance
Board after conducting survey and marking the land by
preparing the sketch. The Government is also said to have
issued identity card to the plaintiff. It is further stated
that on the basis of the survey, list of houses prepared by
the Karnataka Slum Clearance Board and again BBMP
conducted survey and spot mahazar and list of houseless
of said slum area and issued Possession Certificate to
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some house holders and the issue regarding the
Possession Certificate of the plaintiff is in progress and so
claims to have paid up-to-date taxes to the BBMP.
5. It is further contended that the plaintiff has
constructed a house with ACC sheet and has been in
possession of 'A' schedule property since past 30 years.
However, defendant No.1 to 3 along with their followers
and local Corporator and rowdy elements came near 'A'
schedule property on 05.03.2022 and demolished her
house measuring 10x13 feet without any notice or
intimation. It is contended that defendants No.1 to 3 are
strangers to the schedule property and also once again
came near the schedule property again on 27.03.2022 and
tried to take forcible possession of 'A' schedule property
and immediately the same is resisted. Therefore, the
plaintiff has filed a suit for permanent injunction and inter-
alia sought for temporary injunction. In the said suit, the
defendants No.2 and 3, who are the legal heirs of
defendant No.1, have entered appearance and have filed
written statement. Defendants No.4 and 5 have also
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appeared through respective Counsel and have filed
written statement and adopted the statement as objection
to the I.A.No.1. Defendant No.4 & 5 have also appeared
through their respective counsels. Defendant No.2 & 3
filed written statement and memo adopting the written
statement as objections to I.A.No.I. The defendants have
denied the claim of the plaintiff over the schedule property
and they have illegally demolished 'B' schedule property
belonging to the plaintiff and tried to dispossess her from
'A' schedule property etc., as alleged in the plaint. Totally,
the defendants have denied the contentions raised by the
plaintiff. However, it is the contented that earlier the
brother-in-law of the plaintiff having suffered a judgment
and decree in O.S No.4678/2005 dated 22.04.2009, and
also execution proceedings in Ex.No.462/2022 and filed
Obstructor's application and the same came to be
dismissed.
6. Defendant No.1 also pursuant to the judgment
and decree filed a regular first appeal in RFA No.611/2009
and the same was also dismissed. Hence, the present suit
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is filed in order to claim right in respect of the property of
the defendants. The plaintiff denied all other allegations
made in the plaint. In O.S.No.2400/2022 also the plaintiff
contended that when the defendants made an attempt to
interfere with the suit schedule property, it is contended
that the 'A' schedule property is the absolute property of
the plaintiff and originally, the land in Sy.No.3 measuring
4 acres 37 guntas of Government gomal land the same is
now recognized as 'Maruthinagara Slum Area' and now
coming within the limits of BBMP and re-iterated the very
same averments in the other plaint and contended that
the defendants came along with the local Corporator and
also rowdy elements near the 'A' schedule property on
05.03.2022 and demolished the house measuring 24x33
feet without notice or intimation.
7. It is contended that defendants No.1 to 3 are
strangers to the suit schedule property and now they are
trying to evict her from the property. The police also did
not come to the aid of the plaintiff and defendants No.1 to
3 are said to have instructed her to approach the civil
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court. Hence, sought for the relief of declaration in respect
of 'B' schedule property which was illegally demolished by
defendants No.1 to 3.
8. The defendants also appeared and filed written
statement reiterating the similar grounds urged in the
other suit. The Trial Court while passing separate order on
I.A.No.1 comes to the conclusion with regard to the claim
of the plaintiffs that they are in possession of site No.182
and 183 and also comes to the conclusion that the
revenue records produced by the plaintiffs prima-facie
show that they have paid tax pertaining to site No.182 and
others suit in site No.183 and also taken note of the
defence taken by the defendants that they have filed
written statement in O.S.NO.4678/2005 and the same was
decreed which has been challenged in RFA No.611/2009
and also produced the documents before the Trial Court.
9. Learned Counsel appearing for the appellants
reiterated the grounds urged in the appeal memo and also
would contend that the suit schedule properties are Slum
Area and when the Court comes to the conclusion that the
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plaintiffs have made out a prima-facie case, ought not to
have answered the other points for consideration that
balance of convenience and also the hardship and comes
to the conclusion that the defendants have made out the
balance of convenience in their favour and committed an
error by making the said observation.
10. Per contra, learned Counsel for the respondents
vehemently contended that the husband of the plaintiff in
O.S.No.2400/2022 was the defendant in the earlier suit
filed by the defendant in O.S.No.4678/2005 and though
the husband of the other plaintiff in O.S.No.2285/2022 is
not a party and accordingly, vehemently contended that
when the specific defence was taken in the suit also that
site Nos.182 and 183 were renumbered based on site
No.91 and the same has not been proved. The Trial Court
was also very clear with regard to the findings as well as
the same has been confirmed by the appellate court in
RFA No.611/2009. The learned Counsel also brought to
the notice of this Court that when they were unsuccessful
in the earlier suit and also in the appeal, the present
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appeals are filed before this Court. The learned Counsel
also submits that even the obstructor's application was
also filed in the Execution Petition and the same was also
rejected and this Court also in the earlier appeal, rightly
comes to the conclusion that witnesses who have been
examined before the Trial Court have not produced any
documents and there are no documents to show that site
Nos.182 and 183 original belongs to old site No.91 and he
has not produced any documents to show that how
Sy.No.3 was before survey drawing Ex.D1 and also he
does not know Sy.No.3 was before Ex.D1 like that. He
does not know that when the document came into
existence. These are the materials which were also earlier
appreciated and only with an intention to overcome the
earlier judgment and decree and confirmation, the present
suit is filed and likely dismissed the application.
11. Having heard the learned Counsel for the
appellants and also Counsel appearing for respondents, it
is not in dispute that the husband of the plaintiff in
O.S.No.2400/2022 was party to the suit filed by
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defendants No.1 to 3 in O.S.4678/2005 and the same was
decreed and the same is challenged before this Court in
RFA No.611/2009 and the same was also confirmed. The
Trial Court has also taken note of the material on record
while declining to grant the relief of temporary injunction
as sought by both the appellants in their respective suits
and comes to the conclusion by referring to an earlier
judgment and decree and confirmation made by the
appellate court and also comes to the conclusion that
there is no balance of convenience in favour of the
plaintiffs and the same has been discussed at paragraph
No.16 and so also with regard to site Nos.182 and 183
claimed by the plaintiffs and in paragraph No.15, comes to
the conclusion that the husband of the plaintiff i.e.,
Sri.Raju had failed to prove that suit site Nos.182 and 183
were earlier assigned site No.91.
12. When the contention was taken that the site
Nos.182 and 183 were earlier assigned site No.91 to place
the material before the court and except relying upon the
tax paid receipt, nothing is placed on record before the
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Court and so also the learned Counsel for the appellants
though contend that the Possession Certificate is issued,
but not produced any Possession Certificate and also the
pleading is very clear that the issuance of the Possession
Certificate is under progress. When such Possession
Certificate is not produced and merely based on the tax
paid receipt and the identity card issued by the Slum
Board, that cannot be a ground to grant the relief of
temporary injunction. Unless the material is placed before
the Court that both the site Nos.182 and 183 (old
Sy.No.91) are carved out of Sy.No.3, which has been
declared by the Slum Board as Slum Area and in the
absence of any Possession Certificate and only on the
basis of tax paid receipt and identity card, the Court
cannot grant the relief of temporary injunction and unless
the prima-facie case and balance of convenience is made
out.
13. No doubt, the learned Counsel appearing for the
appellants brought to the notice of this Court that the Trial
Court made an observation that to show the prima-facie
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case, the tax paid receipt is produced and even
considering the tax paid receipt also, the court cannot
come to a conclusion that the same is prima-facie
document and hence, I do not find any error in the
findings of the Trial Court in rejecting the I.A.No.1 filed
under Order 39 Rules 1 and 2 of CPC, unless the
Possession Certificate is produced before the Court to
show that they are in possession of the very same suit
schedule property and also earlier there was one round of
litigation in O.S.No.4678/2005, wherein also the husband
of the plaintiff, who had suffered the dismissal of the suit
and filed an appeal in RFA No.611/2009 and unless the
prima-facie case is made out and the balance of
convenience lies in favour of the plaintiff/appellant and
hardship, the question of granting temporary injunction
does not arise. The Trial Court has considered the
material on record and also the earlier judgment and
confirmation with regard to the identification of the
property. Hence, I do not find any grounds to set aside the
orders passed by the Trial Court in both the appeals.
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14. In view of the discussion made above, I pass the
following:
ORDER
Both the Miscellaneous First Appeals are
dismissed.
The Trial Court shall not be influenced by
the orders passed by this Court in these
appeals while considering the matter on
merits.
In view of disposal of the main appeal,
pending I.As., do not survive for consideration
and are accordingly disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
DL
CT: JL
