Karnataka High Court
Sri Nanjappa vs G Srinivasan on 3 September, 2024
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NC: 2024:KHC:36364
MFA No. 5070 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RDDAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO.5070 OF 2024 (CPC)
BETWEEN:
SRI. NANJAPPA,
S/O. LATE RAMAIAH,
AGED ABOUT 60 YEARS,
RESIDING AT NO.427,
7TH MAIN, 7TH CROSS, 2ND PHASE,
KUMARASWAMY LAYOUT,
BENGALURU - 560 078.
...APPELLANT
(BY SRI. H.P. GANGESH GOWDA,ADVOCATE)
AND:
1. G. SRINIVASAN,
S/O. GANGAPPA,
AGED ABOUT 52 YEARS,
Digitally
signed by
SUVARNA T 2. SMT. TRIPULA,
W/O G. SRINIVASAN,
Location: AGED ABOUT 41 YEARS,
HIGH
COURT OF
KARNATAKA BOTH ARE RESIDING AT NO.1018,
6THCROSS, BANASHANKARI 1STSTAGE,
JEEVAN BHIMA NAGAR, 2ND BLOCK,
BENGALURU-560 070.
3. THE BANGALORE DEVELOPMENT AUTHORITY,
RET. BY THE COMMISSIONER,
KUMARAPARK WEST,
BENGALURU-560 020.
...RESPONDENTS
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MFA No. 5070 of 2024
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.18.04.2024 PASSED ON I.A.NO.2 IN
O.S.NO.4050/2023 ON THE FILE OF THE XLI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH NO.42),
REJECTING I.A.NO.1/2023 FILED U/O.39 RULE 1 AND 2 OF CPC
AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the order passed in I.A.No.2 in O.S.
No.4050/2023 dated 18.04.2024by the XLI Additional City Civil
and Sessions Judge, Bengaluru, the plaintiff is before this
Court.
2. The appellant/plaintiff had filed the suit seeking
declaration that the plaintiff is the absolute owner of the
schedule property which he has acquired way back in the year
1992 vide registered document No.2743/92-93, Book No.1,
Volume 1616, registered on 24.12.1992, to grant a permanent
injunction restraining the defendants or their representatives
from interfering with the peaceful possession and enjoyment of
the schedule property. Further, to restrain defendant Nos.1 and
2 not to change or alter the nature of the suit schedule
property and also to restrain them from putting up further
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construction in the schedule property till the disposal of the
suit. Along with the suit he has filed I.A.No.2 under Order 39
Rule 1 and 2 of CPC seeking interim injunction restraining
defendant Nos.1 and 2 from interfering with the peaceful
possession and enjoyment of the property in any manner in the
interest of justice and equity.
3. It is the specific case of the plaintiff that the Bangalore
City improvement Trust Board had allotted the land in favour of
one Muniyappa on 05.07.1973. Defendant No.3 had entered
into sale agreement along with her successors on 08.04.1992
to sell the property to the plaintiff as allotted to the City
Improvement Trust Board on 30.05.1973 for a sale consideration
of Rs.87,500/- as she was in need of funds for her daughter's
marriage. Defendant No.3's husband died on 29.01.1989. After
that, defendant No.3 along with the children had inherited the
said property. The Bangalore Development Authority had re-
allotted to her and executed the property on lease cum sale on
04.09.1992. At that time, defendant No.3 had suppressed the
previous sale deed executed in favour of the plaintiff and it is
the case of the plaintiff that she had played fraud on the
Bangalore Development Authority to make illegal and unlawful
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gains. It stated that the encumbrance certificate for the period
from 01.04.2004 to 15.01.2013 shows that there are no
transactions during the said period. The encumbrance certificate
dated 03.10.2022 showing the name of defendant No.3 showed
the retraction of lease cum sale agreement on 03.09.1992. The
encumbrance certificate dated 19.02.2013 in Form-15 showing
the name of plaintiff for the period 01.04.1992 to 31.03.2004
in respect of the schedule property shows the date of
registration as 18.12.1992 and the sale consideration is
Rs.1,10,000/- and defendant No.3's name is shown as
executants of the document. It is stated that the Bangalore
Development Authority has executed a sale deed on
29.01.2007 in favour of defendant No.3 in respect of the very
same property. It the case of the plaintiff that the defendant
while taking the said sale deed from the Bangalore
Development Authority, had suppressed the sale dated
18.12.1992. Defendant No.3 had once again executed an illegal
sale deed on 29.01.2007 which is registered in the office of the
Sub Registrar, Basavanagudi in favour of defendant Nos.1 and
2 for a sale consideration of Rs.4,99,500/-. Further, defendant
No.1 and 2 entered into a simple mortgage on 09.03.2007 with
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the bank for raising a loan of an amount of Rs.9,00,000/-.
Thereafter, defendant Nos.1 and 2 have filed O.S. No.3133/2007
before the VIII Addl. City Civil Court, Bangalore on 17.04.2007
for seeking permanent injunction. The said suit was decreed on
09.07.2012 granting permanent injunction against the plaintiff
in this suit on the ground of lack of oral and documentary
evidence coupled with misrepresentation and abusing the due
process of law by defendant Nos.1 and 2. It is the case of the
plaintiff that defendants are claiming to be in possession of the
property when they are not in possession. Basing on the sale
deed dated 29.01.2007, defendant Nos.1 and 2 have obtained
the Katha in their names. Now, the defendants are
contemplating to start construction in the suit schedule
property owned by the plaintiff as such he has come up with
the present suit. The defendants have filed their objections.
4. The Trial Court had dismissed the application filed by
the plaintiff by order impugned, wherein the Trial Court had
observed that upon careful perusal of averments of plaint,
documents produced by both parties, it is seen that plaintiff is
seeking the interim relief for protection of his possession over
the suit schedule property when the main relief sought by the
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plaintiff is for recovery of possession from the defendants. The
claim of the plaintiff is virtually in contrast to the relief sought
by him. There are contradictory pleadings in the application and
plaint. When the plaintiff himself is seeking the relief of
possession, it indicates that the plaintiff is ousted of the
protection of his possession. Further, no material is produced to
demonstrate that from the date of sale deed till the date of
filing of the suit, the plaintiff has been enjoying the possession
of the suit schedule property and even to demonstrate that the
plaintiff is in possession of the suit property as on the date of
the suit. The revenue documents produced along with the plaint
that is document Nos.15 to 17 are dated 2007 disclose the
names of defendant Nos.1 and 2. The Trial Court had also
observed that the plaintiff is unable to clarify his position with
regard to the decree obtained by defendant Nos.1 and 2 in
O.S.No.3133/2007. The Trial Court had come to the conclusion
that the plaintiff has failed to prove that he is in possession of
the property and he is entitled for the relief as claimed in the
I.A. and accordingly, dismissed the same. Aggrieved thereby,
the appellant is before this Court.
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5. Learned counsel appearing for the appellant/plaintiff
submits that the plaintiff is the owner of the property. He
purchased the property wayback in the year 1992 and
suppressing the said fact, defendant No.3 had obtained the sale
deed from the Bangalore Development Authority. It is
submitted that the whole transactions are fraudulent
transactions. Defendant Nos.1 and 2 are going to make
constructions in the land belonging to the plaintiff. Unless and
until an injunction is granted, the appellant would be put to
irreparable loss and hardship. It is submitted that the Trial
Court had failed to consider the sale deed that is executed and
the fraudulent transactions that have taken place. He submits
that the Trial Court had considered the revenue entries and it is
submitted that the revenue entries do not confer title on the
parties. When he has filed a sale deed before the Trail Court to
show that he is the owner of the property, the Trial Court ought
to have granted injunction in his favour. He submits that if the
injunction is not granted, even in the event the suit is decreed,
it will give rise to multiplicity of proceedings and the plaintiff
would not be in a position to enjoy the fruits of the decree.
Learned counsel submits that the Trial Court had failed to
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consider the material that is placed before the Court and the
case of the applicant in its proper perspective and dismissed
the application. Learned counsel submits that the appeal has to
be allowed by granting injunction.
6. Having heard the learned counsel for the appellant,
perused the entire material placed on record. The suit is filed
for declaration and recovery of possession. By seeking a relief
of recovery of possession, the plaintiff himself is admitting that
the defendants are in possession of the property. When the
defendants are in possession of the property, the relief that is
sought by the plaintiff by this I.A. cannot be granted. It is
relevant to look at the relief that is sought by the plaintiff in the
I.A. The relief that is sought is to grant an interim order of
injunction pending final disposal by restraining the defendant
Nos.1 and 2 or their agents claiming through them from
interfering with the peaceful possession and enjoyment of the
suit schedule property in any manner in the interest of justice
and equity. If the appellant is in possession of the property,
question of recovery of possession will not arise. The Trial Court
had rightly observed that the relief that is sought in I.A. and
the case of the plaintiff in the plaint is contradictory to the
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other. The stand taken by him cannot co-exist. Whether the
sale deed is executed in favour of the plaintiff by virtue of that
he has become the owner of the property? Whether the
defendant has a right to execute a sale deed in favour of
defendant Nos.1 and 2. All these issues have to be considered
by the Trial Court during the course of trial. When an injunction
is sought, the burden lies on the plaintiff to show that he is in
possession of the property. The relief of recovery of possession
that is sought by the plaintiff makes it very clear that he is not
entitled for the relief of injunction and the Trial Court had
rightly dismissed the petition. This Court finds no reasons to
interfere with the well considered order. Hence, this Court is
passing the following,
ORDER
i. Accordingly, the appeal is dismissed.
ii. All I.As., in the appeal, shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
BN
