Karnataka High Court
Sri Arun Kumar S N vs Sri Deepak M R on 10 September, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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MFA No. 7245 of 2015
C/W MFA No. 7246 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.7245 OF 2015 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.7246 OF 2015 (CPC)
BETWEEN:
SRI ARUN KUMAR S.N.,
S/O. LATE S.S. NAGARAJAN,
AGED ABOUT 51 YEARS,
NO.507/508, CLASSIC COURT APARTMENTS,
FLAT NO.202, 8TH CROSS, 7TH BLOCK,
JAYANAGAR, BANGALORE - 560 011.
...APPELLANT (COMMON)
[BY SRI M.N.UMASHANKAR, ADVOCATE (PH)]
AND:
1. SRI DEEPAK M.R.,
S/O. LATE M.D.RAMA SETTY,
AGED ABOUT 34 YEARS,
R/AT MIRLE VILLAGE, K.R.NAGAR TALUK,
Digitally signed by
CHANDRASHEKAR MYSORE DISTRICT - 571 602.
LAXMAN
KATTIMANI
Location: High
Court of Karnataka
2. SHSHIKANTH RAO,
S/O. LATE SHAM RAO,
AGED ABOUT 49 YEARS,
NO.137, SRINIDHI NILAYA,
37TH CROSS, KENCHANAHALLI,
RAJARAJESHWARI NAGAR,
BANGALORE - 560 098.
...RESPONDENTS (COMMON)
[BY SRI VENKATARAMA REDDY V., ADVOCATE AND
SRI PRADEEP R. ADVOCATE FOR R1 (ABSENT)
SRI K.S. RAGHURAM, ADVOCATE FOR R2 (ABSENT)]
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MFA No. 7245 of 2015
C/W MFA No. 7246 of 2015
MISCELLANEOUS FIRST APPEAL NO.7245/2015 IS FILED
UNDER ORDER 43 RULE 1(R) OF THE CPC, PRAYING TO SET ASIDE
THE ORDER DATED 02.07.2015 PASSED BY THE XLIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AT BANAGALORE (CCH 44) IN
O.S.NO.2085/2013, DISMISSING THE I.A.NO.1 FILED BY THE
APPELLANT/PLAINTIFF UNDER ORDER 39 RULE 1 AND 2 CPC,
SEEKING TEMPORARY INJUNCTION RESTRAINING THE
RESPONDENTS/DEFENDANTS FROM ALIENATING THE SUIT
SCHEDULE PROPERTY, IN THE INTEREST OF JUSTICE AND ETC.,
MISCELLANEOUS FIRST APPEAL NO.7246/2015 IS FILED
UNDER ORDER 43 RULE 1(R) OF THE CPC, PRAYING TO SET ASIDE
THE ORDER DATED 02.07.2015 PASSED BY THE XLIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AT BANAGALORE (CCH 44) IN
O.S.NO.2085/2013, DISMISSING THE I.A.NO.2 FILED BY THE
APPELLANT/PLAINTIFF UNDER ORDER 39 RULE 1 AND 2 CPC,
SEEKING TEMPORARY INJUNCTION RESTRAINING THE
RESPONDENTS/DEFENDANTS FROM INTERFERING WITH THE
PEACEFUL POSSESSION AND ENJOYMENT OF THE SUIT SCHEDULE
PROPERTY, IN THE INTEREST OF JUSTICE AND ETC.,
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.06.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THROUGH VIDEO CONFERENCE, THE COURT
PRONOUNCED THE FOLLOWING:
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MFA No. 7245 of 2015
C/W MFA No. 7246 of 2015
CAV JUDGMENT
Challenging common orders dated 02.07.2015 passed by
XLIII Addl. City Civil and Sessions Judge, Bengaluru (CCH-44),
in O.S.no.2085/2013 on I.A.no.1 and 2 filed under Order XXXIX
Rules 1 and 2 of Code of Civil Procedure ('CPC' for short), these
appeals are filed.
2. Sri M.N. Umashankar, learned counsel for
appellants submitted, appeals were by plaintiff in suit filed for
declaration and permanent injunction against defendants in
respect of suit schedule property. In said suit, plaintiff had filed
two applications. I.A.no.1 seeking for order of temporary
injunction restraining defendants from alienating schedule
property during pendency of suit. And I.A.no.2 for temporary
injunction restraining defendants and their agents from
interfering with peaceful possession and enjoyment of suit
schedule property till disposal of suit. It was submitted, under
impugned order, trial Court rejected applications, leading to
these Appeals.
3. It was submitted, Vishwabharathi House Building
Cooperative Society ('Society' for short) had formed layout in
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63 acres of land bearing Sy.212 to 242/2 of Halegavadarahalli
village, Sachidanandanagar, Phase-V, Vishwabharathi Housing
Complex, Kengeri Hobli, Bengaluru South. It was submitted, in
year 1993, City Municipal Council, Pattanagere had approved
layout for formation of sites. Thereafter basic amenities were
provided. It was submitted, on plaintiff becoming member, he
was allotted site no.574/B measuring East to West 109 feet and
North to Sought 40 feet totally measuring 4360 Sq.Ft. in said
layout (hereinafter referred to as 'suit property' for short). On
23.01.2006, registered sale deed was executed in favour of
plaintiff. Thereafter, he obtained khata certificate from Bruhath
Bengaluru Mahanagara Palike, Bengaluru ('BBMP' for short)
and was paying tax.
4. It was submitted, when plaintiff began construction
on suit property, without any right, title or interest, defendants
obstructed it claiming to have purchased agricultural land
bearing Sy.no.242/1 to extent of 02 Acres 29 guntas situated
at Halagevadarahalli village. It was submitted, plaintiff along
with other site owners had approached Rajarajeswari Nagar
Police Station and filed complaint against defendants.
Thereafter, defendants were trying to alienate suit property and
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dispossess plaintiff. However, trial Court without appreciation of
documents produced by plaintiff, relying on concocted
documents produced by defendants, rejected I.As.no.1 and 2,
referring to decision in Mangalagowri v. Keshavamurthy &
Others, reported in ILR 2001 KAR 3249.
5. It was submitted, though plaintiff was in possession
and enjoyment of said property from date of purchase,
defendants were illegally interfering with his possession. It was
submitted, O.S.no.2355/2001 filed by Society against State
and others was decreed on 12.04.2005 after recording finding
that Society was in lawful possession of sites in layout.
6. It was submitted, to substantiate his case, plaintiff
had produced General Power of Attorney and agreement
executed by Fayaz Khan in favour of Society, which indicated,
executants had received entire sale consideration and Society
was authorized to get its name mutated in revenue records,
form layout and execute registered sale deeds in favour of
prospective purchasers. It had also produced documents to
establish that Society had formed sites, laid roads, obtained
electricity and UGD connection as part of its developmental
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activities. Said documents also indicated that few
allottees/purchasers had put up construction.
7. To corroborate same, information provided by Sub-
Registrar, Kengeri in respect of sale deeds executed between
01.04.2007 to 31.12.2010 in respect of about 840 sale deeds
was produced. Similarly another list of sites sold from
01.06.1989 to 31.03.2004 was produced with particulars of
khata issued. Another document issued by BESCOM about 249
connections with particulars of names sanctioned from year
1999 to 2010 was also produced. In addition, plaintiff produced
Revised Master Plan, 2015, which included Halagevaderahalli
village by showing it reserved for residential use. Thus, there
was no need for obtaining conversion of land. But, trial Court
failed to take note of same.
8. On other hand, defendants claimed that agricultural
bearing Sy.no.242/1 measuring 2 Acres 29 guntas including 18
guntas of kharab of Halagevaderahalli belonged to Fayaz
Ahmed Khan who had purchase it from its earlier owner Sri
S.Amruthalingam under registered sale deed dated 27.09.1958.
Further, Special Deputy Commissioner by order dated
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24.06.1962 had confirmed said Fayaz as tenant. They
contended Fayaz continued as owner in possession with
revenue records continuing to show his name. Under sale deed
dated 26.07.2011, defendants had purchased land bearing
Sy.no.242/1. Thereafter they had got khata transferred in their
name. Subsequently they had applied for conversion to non-
agricultural-residential use. Under Official Memorandum dated
21.06.2012, conversion was granted. In meanwhile on
03.03.2012, Society had issued a public notice, declaring that
previous Managing Committee of Society had fraudulently
executed over 200 sale deeds without acquiring any valid right,
title or interest in respect of lands bearing Sy.nos.212, 213,
216, 237/1, 238 to 241, 242/1 and 242/2 of Halagevaderahalli
village and for which office bearers were behind bars.
9. They also alleged that there was no transfer of
ownership of lands to Society nor said lands were acquired.
Therefore, sale deeds executed by erstwhile office bearers of
Society did not confer any right, title or interest. Defendants
also asserted that Society had in fact applied and obtained
refund of amount deposited by it before Government towards
cost of acquisition. They also relied on findings in
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Mangalagowri's case (supra) and contended that there were
several irregularities and illegalities committed by Society
including alleged sale in favour of plaintiff.
10. In reply, learned counsel for appellant submitted
main reason assigned by trial Court to conclude that plaintiff
had failed to establish prima facie case was with reference to
finding in Mangalagowri's case (supra). But said judgment
was questioned before Hon'ble Supreme Court in C.A.no.2171-
2172/2002, which was disposed on 03.04.2008 by directing
parties to maintain status-quo regarding possession over suit
property. It was pointed out that Hon'ble Supreme Court has
specifically referred to observations made by this Court in
course of its order in Mangalagowri's case (supra) about
Society not acquiring any title to land in Halagevadarahalli and
Society had playing fraud etc. had been set-aside.
11. It was submitted execution of Sale Deed by Society
in favour of plaintiff was after disposal of appeal by Hon'ble
Supreme Court. Therefore, reference/reliance by trial Court to
observations in Mangalagowri's case (supra) would amount to
commission of material irregularity if not perversity.
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12. Heard learned counsel and perused impugned
order. Though respondents were served and represented, none
appeared. It is however seen that objections have been filed,
which are a virtual reiteration of their written
statements/objections to IAs filed by plaintiff, which are already
noted above.
13. Thus, it is seen, appellant is challenging order
passed by trial Court on ground of perversity of conclusions,
point that would arise for consideration is:
"Whether impugned order passed by trial
Court suffers from perversity and calls for
interference?"
14. Perusal of impugned order reveals, trial Court has
taken note of pleadings and contentions of both parties, framed
proper points for consideration and passed reasoned order.
15. Insofar as prima facie case, trial Court observed,
fact that society was developing land over such a long period of
time and faced several litigation with regard to other sites also
were amongst factors that would weigh in favour of plaintiff. On
reasoning that same would not have been permitted, if Fayaz
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Khan was in possession, it observes contention about Fayaz
Khan being in possession would be doubtful. Referring to
decision of Hon'ble Supreme Court in case of Seth Loon Karan
Sethiya v. Ivan John and others, reported in AIR 1969 SC
7338, for proposition that General Power of Attorney coupled
with interest would be irrevocable and validly create interest in
property. It overruled contention of defendant about originals
of General Power of Attorney and agreement of sale not being
produced, with observation that certified copies thereof would
suffice.
16. Referring to decision in Mangalagowri's case
(supra) and defendant's contention that society had taken
refund of amount deposited by it towards acquisition, it
concludes land was not acquired in favour of society. At same
time, referring to contents of GPA and agreement of sale, it
observes recitals about society taking over lands, forming
layout etc., would indicate that Fayaz Khan was not in
possession, therefore defence taken by defendant was not
prima facie acceptable. Ultimately, referring to findings in
Mangalagowri's case (supra), it concludes plaintiff had failed
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to establish prima facie case. Findings on other points are
consequential to finding on prima facie case.
17. Therefore, it is evident that observations/findings in
Mangalagowri's case (supra) weighed heavily with trial Court
for rejection of I.As. filed by plaintiff. However, it is seen, said
decision was questioned before Hon'ble Supreme Court by
Society. And C.A.no.2171-2172/2002 [in SLP(C) nos.10901-
10902/2001] was disposed of on 03.04.2008 by directing
parties to maintain status-quo regarding possession over suit
property and setting at naught observations about Society not
acquiring any title to land in Halagevadarahalli and Society had
playing fraud etc. In fact, said order was brought to notice of
trial Court and referred to by it in para-13 of impugned order.
There is failure to refer to same while assigning reasons. In
view of fact that said observations in Mangalagowri's case
(supra) forms main basis for passing impugned order, it would
have to be held, conclusion by trial Court suffers from
perversity on ground that conclusion was contrary to material
on record.
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18. In fact, order passed by Hon'ble Supreme Court in
C.A.no.2171-2172/2002 [in SLP(C) nos.10901-10902/2001]
reads as follows:
"While granting leave on 11.03.2002, a Bench of this
Court directed maintenance of status quo as regards
possession in regard to disputed property. It was
observed that the Trial Court was free to proceed with
the suit. We are told that the trial of the suits in
question is in progress. We request the Trial Court to
conclude the trial within a period of four months from
today, if not already done. The order of status quo
passed on 11.03.2002 shall continue till the
disposal of the suits. We make it clear that by giving
this interim protection it shall not be construed as if we
have expressed any opinion on the merits of the case.
The appeals are accordingly disposed of.
SLP(C) nos.10901-10902/2001: Leave granted. The
main grievance of the appellant seems to be that the
direction as contained in paragraphs 19 and 20 of the
impugned judgment are really uncalled for and have
no legal sanction. We find substance in the plea. We
direct that the directions given in paragraphs 19
and 20 of the impugned judgment shall not be
carried out."
19. In view of above, observations/conclusion by trial
Court, about failure of plaintiff to establish prima facie case
would lose its efficacy. There is no material placed regarding
final result in said suit. However, trial Court herein has
observed that during pendency of various litigation, society had
carried out developments and on said reason, as noted above,
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trial Court had observed that even defence of defendants was
not prima facie acceptable.
20. Insofar as conclusion by trial Court about plaintiff
failing to establish identity of suit property as neither site
no.574B nor any site measuring 109ft. X 40ft. appeared to
have been formed, from layout plan produced by plaintiff, it is
seen, neither of parties have asserted that there was any
layout plan was approved by competent authority. To
substantiate right insofar as suit property, plaintiff has relied on
documents about membership in Society, site allotment letter,
registered sale deed executed by Society and Khata Certificate
issued by BBMP, corroborated by Demand Register Extract,
Encumbrance Certificate etc.
21. Plaintiff has also relied on judgment and decree
dated 12.04.2005 in O.S.no.2355/2001 wherein trial Court had
declared communication dated 06.09.2000 by Divisional
Commissioner as illegal and directing CMC, Pattanagere to
register khata and Sub-Registrar, Kengeri to register all deeds
of conveyance in respect of layout formed by Society. On going
through records of trial Court, it is seen from certified copy of
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information provided by Sub-Registrar, Kengeri to Nethrakere
Uday Shankar Narayan Bhat on 31.12.2008, there is reference
to sale deed executed by Society in favour of plaintiff in respect
of suit property with dimensions. Perusal of entire layout sketch
produced before trial Court and available in trial Court records
would indicate that there are sites of various dimensions
including four sites measuring 90ft. X 110ft. Therefore, at
stage of consideration of I.As. for injunction, trial Court does
not require to hold mini trial or record categorical findings on
facts as same would be matters for trial.
22. In fact, trial Court had prior to passing of impugned
order, granted ex-parte ad-interim order directing parties to
maintain status quo. Therefore, unless circumstances were so
established that its continuation was not justified, trial Court
would not be justified in vacating said order. Order directing
both parties to maintain status quo with regard to suit property
would also be in tune with order passed by Hon'ble Supreme
Court.
23. It is also seen that this Court by order dated
16.10.2015 had directed both parties to maintain status quo
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with regard to suit property till next date of hearing and said
interim order was extended and in existence till 13.06.2023 i.e.
for nearly eight years during pendency of this appeal and more
than ten years from date of grant of ex-parte interim order in
suit. In view of fact that suit is at stage of trial would also
requires to be taken into account.
24. In light of fact that both plaintiff and defendants
claim to have purchased property for valuable sale
consideration, ratio in Maharwal Khewaji Trust (Regd.) v.
Baldev Dass, reported in (2004) 8 SCC 488, requires to be
followed and points regarding balance of convenience and
irreparable loss and injury, answered partly in affirmative.
25. Consequently, following:
ORDER
MFA.no.7245/2015 is allowed. Order dated
02.07.2015 passed by XLIII Addl. City Civil and
Sessions Judge, Bengaluru (CCH-44), in
O.S.no.2085/2013 on I.A.no.1 filed under Order
XXXIX Rules 1 and 2 of CPC for temporary
injunction restraining defendants from alienating
suit property during pendency of suit, is set aside.
I.A.no.1 stands allowed.
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MFA.no.7246/2015 is allowed in part. Order
dated 02.07.2015 passed by XLIII Addl. City Civil
and Sessions Judge, Bengaluru (CCH-44), in
O.S.no.2085/2013 on I.A.no.2 filed under Order
XXXIX Rules 1 and 2 of CPC for temporary
injunction restraining defendants from interfering
with peaceful possession and enjoyment of suit
schedule property till disposal of suit, is set aside.
I.A.no.2 stands disposed of by directing both
parties to maintain status quo with regard to
nature and possession of suit property till disposal
of suit.
Both parties are directed to co-operate for
early disposal of suit. Likewise, trial Court is
directed to expedite disposal of suit.
Registry to forthwith transmit trial Court
records back to trial Court.
Sd/-
(RAVI V HOSMANI)
JUDGE
Psg/GRD/CLK
