Karnataka High Court

Smt. B.S.Asha vs Sri. T. Sathyababu on 9 September, 2024

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                                                  NC: 2024:KHC:23824
                                               MFA No. 7209 of 2017




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                 DATED THIS THE 9TH DAY OF SEPTEMBER, 2024

                                   BEFORE
               THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
          MISCELLANEOUS FIRST APPEAL NO. 7209 OF 2017 (CPC)
          BETWEEN:

                SMT. B.S. ASHA,
                W/O SRI. PURUSHOTHAM,
                AGED ABOUT 37 YEARS,
                RESIDING AT NO.77/8,
                PUTTANNA ROAD,
                GANDHI BAZAAR, BASAVANAGUDI,
                BENGALURU-560 019.
                                                        ...APPELLANT
          (BY SRI. NAIK N.R., ADVOCATE)
          AND:

          1.    SRI. T. SATHYABABU,
                S/O SRI. T. VENKATARAMANA,
                AGED ABOUT 48 YEARS,
                RESIDING AT NO.53/1,
Digitally       SUNKENAHALLI, BULL TEMPLE ROAD,
signed by       BASAVANAGUDI,
SUVARNA T       BENGALURU 560 019.
Location:
HIGH      2.    SRI. A. DAMODAR
COURT OF        S/O LATTE A. GANGULAPPA,
KARNATAKA
                AGED ABOUT 48 YEARS,
                RESIDING AT NO.120,
                PATALAMMA TEMPLE ROAD,
                JAYANAGARA 3RD BLOCK,
                BENGALURU 560 011.
                                                     ...RESPONDENTS

          (BY SRI. SWAMY SHIVA PRAKASH H., ADVOCATE FOR C/R1;
              NOTICE NOT GET ORDERED IN R/O R2)
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                                              NC: 2024:KHC:23824
                                           MFA No. 7209 of 2017




       THIS MFA IS FILED U/O 43 RULE 1(r) R/W SEC.104 OF
CPC, AGAINST THE ORDER DATED. 29.07.2017 PASSED ON
I.A.NO.1 IN O.S.NO.2898/2017 ON THE FILE OF THE LXII
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE,
(CCH63), REJECTING I.A.NO.1 FILED U/O 39 RULE 1 & 2 OF
CPC.

       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 orders passed in I.A.No.1 in

O.S.No.2898/2017 dated 29.07.201 by the Court of LXII Addl.

City Civil & Sessions Judge (CCH-63), Bangalore, the plaintiff is

before this Court.

2. The appellant/plaintiff had filed a suit for permanent

injunction and also filed an IA under Order XXXIX Rule 1 and 2

seeking temporary injunction restraining the first defendant

from interfering with the plaintiff's peaceful possession and

enjoyment of the suit 'B' schedule property. It is the case of the

plaintiff that he has acquired the suit Schedule 'A' property

under the Will and as per the registered Gift Deed dated

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20.04.2017. The father of the plaintiff has gifted the portion of

the suit schedule 'A' property described in the suit 'B' schedule

property to the plaintiff. The suit 'A' schedule property is not

the subject matter of layout formed by the Accountant

General's House Building Co-operative Society and the first

defendant has been falsely claiming 'B' schedule property as his

property in Sy.No.10 of Arehalli Village has been trying to

interfere with the plaintiffs peaceful possession. Hence she had

come up with a suit and also IA seeking temporary injunction

restraining the defendants from interfering with the plaintiff's

peaceful and enjoyment of the property. The defendants have

filed objections and they have stated that the entire land of 4

acre 16 guntas in Sy.No. 6/1 of Arehalli village has been

acquired by the Accountant General's House Building Co-

operative Society and since the said lands stand in the name of

society, question of giving up 20 guntas of land by the society

does not arise. They have not executed any re-conveyance

deed in favour of the plaintiff's father. In that case, the

plaintiff's father cannot acquire any right over the plaint 'A'

schedule property. It is stated that the plaintiff and her father

in collusion with each other have created Gift Deed by giving

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false measurement and boundaries. It is the case of the

defendant that there is no plaint 'A' or 'B' schedule property to

seek relief of injunction. In fact the plaintiff by virtue of the

alleged Gift Deed dated 20.04.2017, is trying to put forth a

false claim over the written statement schedule property

belonging to defended No.1. It is their case that by virtue of

the acquisition, defendant has become the absolute owner of

the property and they have been in lawful possession and

enjoyment of written statement property. After obtaining the

necessary sanctioned plan and license, they have put up

building over the said property by investing the hard earned

money and plaintiff is not entitled for the injunction as prayed

for. The trial Court had dismissed the application filed by the

plaintiff. While dismissing the application, the trial Court has

observed that the plaintiff in support of her contention that an

extent of 20 acres is re-conveyed to him by the Accountant

General House Building Co-operative Society, she has relied on

a letter dated 4.3.2015. The Court observed that the survey

number of the land of plaint 'A' schedule property is not

mentioned in the said letter. Even the name of the plaintiff's

father has not been mentioned there. The Court further

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observes that if any moveable property having value of more

than Rs.100/- is to be conveyed through registered document.

Admittedly, the aforesaid Society has not transferred the suit

'A' schedule property through registered document to the

plaintiff's father and Will dated 04.03.2015 will not confer any

right to the plaintiff's father over plaint 'A' schedule property.

The Court observes that the plaintiff has not established the

title of his father over plaint 'A' schedule property. Since the

donor himself has not acquired any title over the property, the

alleged Gift Deed dated 20.04.2017 cannot confer any right to

the plaintiff's over suit schedule 'B' property. The documents

that are placed before the Court establishes that the defendant

is the absolute owner and who is in possession of the property

and the photographs produced by the defendant shows that the

building construction is going on. At this stage, the plaintiff has

not established existence of the suit schedule 'A' and 'B'

properties and her possession over the same. The plaintiff is

not entitled for the injunction as played far, and the balance of

convenience is in favour of the defendant. If the injunction is

granted, the defendants would be put to irreparable loss and

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hardship and accordingly, dismissed the petition. Aggrieved

thereby, the appellant/ plaintiff is before this Court.

3. Learned counsel appearing for the appellant

submits that as the defendants have denied the title of the

plaintiff's to the suit schedule properties, they have filed an

application seeking amendment i.e., declaration and injunction.

It is submitted that the father of the plaintiff had executed a

Gift Deed and they are in possession of 20 guntas of land,

which is evident from the letter dated 04.03.2015 addressed by

the Society, whereby an extent of 20 guntas of land is re-

conveyed to the plaintiff, which is undisputed and they have

been in possession and enjoyment of the property. Now, under

the guise of the acquisition, the defendants are interfering with

her peaceful possession and enjoyment, she has filed a suit and

also an IA. The Court ought to have allowed the IA filed by the

plaintiff seeking injunction restraining the defendants from

interfering with her property. He submits that the trial Court

had failed to consider the application in its proper perspective

and dismissed the same.

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4. Though caveat is filed on behalf of respondent No.1,

there is no representation on behalf of respondent No.1. This is

an appeal of 2017 and this Court is not inclined to adjourn the

matter and disposing of this matter basing on the material

available on record.

5. Having heard the learned counsel for the appellant,

perused the entire material on record. Initially, the suit is filed

for injunction. As on the day, when this interim application is

filed, the plaintiff had not sought the relief of declaration. It is

the case of the plaintiff that the plaintiff's father has acquired

this property by way of Will and he has executed a registered

Gift Deed in favour of the plaintiff. There is no dispute about

the fact that an extent of 4 acres 16 guntas has been acquired

by the Society. It is the case of the plaintiff that after acquiring

the land by way of resolution dated 04.03.2015 an extent of 20

guntas of land is re-conveyed to the plaintiff's father and the

plaintiff's father has acquired the same by way of a Will and he

has conveyed the property in favour of the plaintiff by way of

registered Gift Deed. It is the case of the plaintiff that the

defendants are interfering under the guise of the acquisition

though resolution passed and the property is re-conveyed to

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them. The same is denied by the defendants. Defendants are

denying the title of the plaintiff to the suit scheduled properties.

According to them, the plaintiff is never in possession of the

property. When the plaintiff's father has no title himself, he

cannot confer a better title on the plaintiff and it is the

defendants, who are in occupation of the property and in fact,

after obtaining the necessary permission like license, they have

been proceeding with the construction. The entire case of the

plaintiff with regard to his title to the property is based on the

Will of the plaintiff's father and a Gift Deed i.e., executed in

favour of the plaintiff. It is an undisputed fact that the land is

acquired long back and according to him, there is a re-

conveyance. The trial Court while dismissing the application,

has rightly observed that an immovable property just like that

by way of resolution, cannot be re-conveyed and that has to be

by way of a registered document. Admittedly, there is no

document in favour of the plaintiff and apart from that, the

plaintiff had not filed any document to show that he is in

possession of the property as on the date of filing of the suit.

But, it is the defendant who had filed the documents to show

that they have been in possession of the property and they

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have made certain constructions. When a suit for bare

injunction is filed, the plaintiff has to prove that she is in

possession of the property as on the date of filing of the

application, which the plaintiff has miserably failed to show and

the trial Court had rightly held that the plaintiff has failed to

make out a prima facie case, balance of convenience and

reparable loss. Hence, this Court finds no reason to interfere

with the well Considered order passed by the trial Court.

6. Accordingly, this Court is passing the following:

ORDER

1. The Miscellaneous First Appeal is dismissed.

2. This is the suit of the year 2017 and this court

deems it appropriate to direct the Trial Court to

dispose of the suit itself as expeditiously as

possible, but not later than one year.