Karnataka High Court

Sri B.S. Manjunath vs Smt. Leela on 14 February, 2025

Author: K.Natarajan

Bench: K.Natarajan

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 14TH DAY OF FEBRUARY, 2025

                          BEFORE

          THE HON'BLE MR. JUSTICE K. NATARAJAN

       MISCELLANEOUS FIRST APPEAL NO.8388 OF 2023

BETWEEN:

   SRI. B.S. MANJUNATH
   S/O LATE B. K. SRIKANTAIAH,
   AGED ABOUT 71 YEARS,
   R/AT NO.282/A,
   2ND A MAIN ROAD,
   1ST PHASE GIRINAGARA,
   BANGALORE - 560 085.
                                                ...APPELLANT
(BY SRI. KAMALESHWARA POOJARY, ADVOCATE)
AND:

   SMT. LEELA
   W/O SRI. SIDDAGANGAPPA R
   AGED ABOUT 41 YEARS,
   R/AT FLAT NO.102,
   SRIRAMA SANNIDHI,
   1ST MAIN ROAD, 4TH CROSS ROAD,
   REMKO BHEL LAYOUT, BEML LAYOUT,
   RAJARAJESHWARI NAGAR,
   BENGALURU - 560 098.
                                               ...RESPONDENT
(BY SRI. D.R.RAVISHANKAR, SENIOR COUNSEL FOR
    SRI. NAGARAJ S. JAIN, ADVOCATE)
      THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DATED 20.11.2023 PASSED ON
I.A.NOS.1 AND 2 IN OS.NO.7897/2022 ON THE FILE OF THE XVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, CCH-
12 ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2
R/W SECTION 151 OF CPC AND REJECTING THE I.A.NO.2 FILED
UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

    THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 16.01.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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CORAM:     HON'BLE MR JUSTICE K.NATARAJAN

  RESERVED FOR ORDERS ON: 16.01.2025
  PRONOUNCED ON          : 14.02.2025



                              CAV JUDGMENT

This appeal is filed by the appellant/defendant under order 43

Rule 1 (r) of CPC for setting aside the order passed by the Addl.

City Civil and session Judge, Bangalore in OS.No.7897/2022 for

having granted injunction in favour of the respondent/plaintiff on

I.A.No.1 under Order 39 Rule 1 of CPC restraining the

appellant/defendant from interfering with the schedule property and

rejecting the I.A.No.2 filed by the appellant for granting injunction

in respect of written statement/counter claim property.

2. Heard the arguments of learned counsel for the appellant

and the learned counsel for the respondent.

3. The appellant was the defendant and the respondent was

the plaintiff before the Trial Court. The ranks of the parties are

retained for the sake of convenience.

4. Learned counsel for the appellant has contended that the

order passed by the trial court is erroneous and perverse. There is

no prima facie case made out by the plaintiff. There is no balance

of convenience in favour of the plaintiff and if injunction is not

granted, no irreparable loss would cause to the plaintiff. Such

being the case, granting injunction in favour of the plaintiff does not

arises. On the other hand, the defendant made out prima facie

case in his favour for granting injunction and defendant is in

possession of the schedule property. Such being the case, question

of rejecting the application of the defendant does not arises.

Hence, prayed for allowing the appeal.

5. Per contra, learned Senior counsel for the respondent

supported the order passed by the trial court and contended that

the plaintiff purchased the schedule property from the vendor

Sri.H.Lankappa under sale deed dated 5.12.2022 the same was

reflected in the encumbrance certificate issued by the Sub

Registrar. The property standing in the name of her vendor there

were no transactions from 1989 to 2022. It is further contended

that the vendor of the plaintiff had originally purchased the land of

2 acres and 30 guntas in Sy.No.238 of Halagevaderahalli village

from one Hanumanthraju , gajendra and narayana i.e, sons of

H.Hanumantharaju C., through registered sale deed. The daughters

of the H.Hanumantharaju C filed suit for partition which came to be

decreed and in the FDP proceedings 1 acre 13 guntas fallen to the

share of the daughters which was re-numbered as Sy.No.238/2 and

remaining 1 acre 13 guntas continued in the name of vendor as

Sy.No.238/1. The land got converted and suit schedule property

was one of the site carved out of the said survey number and the

name of the vendor is appearing in the BBMP records and even

BBMP has issued khatha. The plaintiff purchased the schedule

property but the defendant trying to interfere in the schedule

property illegally contending that the defendant has purchased

property on 03.12.2012 is utterly false. Therefore, considering the

prima facie case, the trial court rightly granted injunction in favour

of the plaintiff and rejected the contention of the defendant and

there is no need to interfere in the said order. Hence, prayed for

dismissing the appeal.

6. Having heard the arguments perused the records, the

point that arises for my consideration are,

1. Whether the plaintiff has made out prima

facie case, in his favour?

2. Whether plaintiff was put into hardship and

loss if injunction is not granted in view of

the rival claim by the defendant in his

application for granting injunction?

3. Whether the balance of convenience lies in

whose favour?

4. Whether order of trial court calls for

interference?

7. Perused the records and impugned order which is under

challenge. The plaintiff filed the suit for bare injunction restraining

the defendant from interfering with the suit schedule property which

is narrated as under

"Vacant sites bearing No.3625/238/1/15 in ward No.160 of

BBMP Rajarajeshwari Nagar, situated at Halagevaderahalli

measuring East and West 50 ft and North to South 45 ft measuring

2250 sq.ft. bounded on the,

East by : Vacant site No.16

West by: Vacant site no.14

North by : Private property

South by : Road

8. The plaintiff filed affidavit along with the Interlocutory

Application contending that the plaintiff is absolute owner of the

schedule property purchased from Lankappa dated 5.12.2022 under

sale deed and contended the vendor was the owner of the property

measuring 2 acre 30 guntas in Sy.No. 238 and after filing the suit

by his sister in O.S.No.5691/1998 suit for partition was decreed and

the sister of the Lankappa got half share and the vendor of the

plaintiff got half share in 238/1 and the sister got 238/2 by re-

numbered after the partition. The vendor obtained the conversion

order and formed the site out of the said layout. The plaintiff had

purchase the schedule property, but the defendant is trying to

interfere. Whereas, the defendant filed objection as well as he also

filed an application under 39 and rule 1 and 2 of CPC. Also, filed

counter claim in the suit contending that the very suit for bare

injunction is not maintainable. The plaintiff required to file suit for

declaration and possession. Since defendant purchased the

schedule property of the counter claim on 3.12.2012 from his

vendor Rathna murthy. The site has been handed over to the

defendant he has put up the compound wall it was put up by the

vendor in 2010 itself. Khatha also changed in his name, but the

plaintiff got created the documents in the year 2022 and the

defendant came to know the plaintiff white washed the front portion

of the counter claim property and removed site number. and the

name of the defendant. The plaintiff also with high handed manner

demolished the front portion of the wall of the counter claim

property. The defendant resisted the same, therefore the

defendant is having prima facie case in his favour for granting

injunction. therefore, prayed for rejecting the application of the

plaintiff for injunction and granting injunction in his favour. The trial

court after considering the records allowed the injunction

application filed by the plaintiff and dismissed the injunction

application filed by the defendant. Hence the defendant is before

this court.

9. The defendants property shown in the affidavit

accompanying the application and the counter claim is a residential

site property bearing no.373 formed by VBHCS situated in

Sacchidananda Nagar, Halagevaderahalli, measuring east west 50 ft

and north to south 70 ft , in all measuring 3500 sq.ft bounded on

East by site no.372,

West by site no.374,

North by site no.358,

South by road.

10. On perusal of the boundaries, mentioned therein and

the especially southern boundary are one and the same, but the site

numbers differs apart from measurement of the property. The

plaintiff claim measurement of the property is 2250sq.ft whereas

measurement of the property claimed by the defendant is 3500sq.ft

and different boundaries in respect of adjacent sites. The counsels

also produced the documents having purchased the properties and

also the photographs.

11. On careful perusal of the records reveals that the land in

Sy.No.238 was belonging to one Lankappa. The vendor of the

plaintiff who purchased the property under the sale deed dated

21.07.1988 from the children of one Hanumanthappa measuring 2

acres 30 guntas. Subsequently, Lankappa vendor of the plaintiff

executed a GPA and agreement of sale in favour of the

Vishwabharhi Housing Co-operative Society Limited. Meanwhile

other siblings i.e., sister of Hanumanthappa filed a suit against the

vendor of the plaintiff in OS.No.7961/2022 for partition. The said

suit was decreed, the half of the land i.e., 1 acre 15 guntas fallen to

the share of the sister of Hanumanthappa's and by way of purchase

the vendor of the plaintiff got only 1 acre 15 guntas. The said land

already handed over to the Vishwabharhi Housing Co-operative

Society Limited, they formed the layout with other lands and

formed the sites, one of the site purchased by the respondent /

defendant herein. Whereas the vendor of the defendant put up the

compound wall in 2010 itself and katha also changed in his name,

but the plaintiff said to be purchased the property from Lankappa in

the year 2022 by mentioning some site number with lesser

measurement. Therefore, the vendor of the plaintiff Lankappa had

already lost the right title over the property and in view of the

execution of the agreement of sale and GPA the Vishwabharthi

Housing Co-operative Society Limited has become ostensible owner

under Section 41 of the Transfer of Property Act, 1882 and they

already sold the property to the defendant's vendor. It has been the

case, the plaintiff do not have any prima facie case in his favour to

show that he has derived any right title from his vendor Lankappa.

12. The Trial Court had not properly appreciated the

documents on record whereas the defendant claims the property

under the allotee of the Vishwabharhi Housing Co-operative Society

Limited and purchased the site, where they put up the compound

wall. Now under the guise of creating a sale deed the plaintiff trying

to interfere with the property of the defendant which cannot be

allowed.

13. This Court also held in a connected MFA.No.2997/2024

that Lankappa has no right title over the property as he had already

executed GPA in favour of the society and society has become

ostensible owner, they formed the layout and sold the site. It has

been a case until cancelling the agreement of sale, the GPA in

favour of the society and sale deed of the defendant, the plaintiff

cannot seek any relief for injunction. When there is a cloud over the

title of the plaintiff bare injunction suit is maintainable. The plaintiff

is required to convert the suit into declaration suit. On the other

hand the defendant claims counter claim in written statement that

the property which was purchased through the society has became

the case, the balance of conveyance in favour of the defendant but

not in favour of the plaintiff. It is also brought by the notice to the

counsel for appellant that the plaintiff's vendor Lankappa purchased

the site from the same society which was formed in Sy.No.238, if

the said document is considered then the vendor of the plaintiff

Lankappa had lost the land in Sy.No.238 long back and he himself

purchased a site from the society. Such being the case, the plaintiff

cannot claim any right, title, interest over the Sy.No.238. Therefore,

the plaintiff will not get any right over the suit schedule property.

Therefore, the plaintiff required to convert the suit into declaration

suit and ascertain the title till then the question of granting

injunction in favour plaintiff does not arises. On the other hand if

the defendant is not able to show if the injunction is not granted,

the defendant will be put to hardship and loss. Therefore, the suit

schedule property is required to be protected until disposal of the

suit. Thereby, the order of the Trial Court is require interference and

modified by this Court.

14. Accordingly, I pass the following:

ORDER

i. The appeal is allowed; ii. The order of the Trial Court granting injunction in favour of the respondent / plaintiff is set aside; iii. The parties are directed to maintain status quo at the suit schedule property until disposal of the suit.