Chinnakkaiah vs Sri.Rajendra Babu N
2025 Latest Caselaw 4546 Kant

Karnataka High Court

Chinnakkaiah vs Sri.Rajendra Babu N on 28 February, 2025

Author: K.Natarajan

Bench: K.Natarajan

                             1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY, 2025

                         BEFORE

         THE HON'BLE MR. JUSTICE K. NATARAJAN

      MISCELLANEOUS FIRST APPEAL NO.321 OF 2025
BETWEEN:
1.    CHINNAKKAIAH
      W/O LATE KRISHNAPPA
      AGED ABOUT 74 YEARS

2.    SRI. H. K. CHANDRASHEKAR
      S/O LATE KRISHNAPPA
      AGED ABOUT 47 YEARS

3.    SMT. RASHMI
      W/O H. K. CHANDRASHEKARA
      AGED AOUT 40 YEARS
      ALL ARE R/AT NO.51/47,
      1ST FLOOR, NEXT TO LORDS SCHOOL,
      HULIMAVY VILLAGE, BEGUR HOBLI,
      BENGALURU SOUTH TALUK,
      BENGALURU - 560 076.
                                              ...APPELLANTS
(BY SRI. S.K.VENKATACHALAPATHI, ADVOCATE)
AND:
   SRI. RAJENDRA BABU N
   S/O NARAYAN,
   AGED ABOUT 59 YEARS,
   R/AT VISUR AGRAJARAM VILLAGE,
   DEVARULIMNGALAM, KAKKADASAM,
   DENKANIKOTTAI TALUK,
   KRISHNAGIRI DISTRICT - 635 107.
                                             ...RESPONDENT
(BY SRI. H.N.VENKATESH, ADVOCATE)
      THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DATED:12.12.2024 PASSED ON
I.A.NO.1 IN OS.NO.2172/2024 ON THE FILE OF THE IX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-
5, ALLOWING THE APPLICATION FILED UNDER ORDER 39 RULE 1
AND 2 R/W SECTION 151 OF CPC.
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    THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 06.02.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:

CORAM:     HON'BLE MR JUSTICE K.NATARAJAN

  RESERVED FOR ORDERS ON: 06.02.2025
  PRONOUNCED ON          : 28.02.2025




                              CAV JUDGMENT

This appeal is filed by the defendants under Order XLIII Rule

1(r) of CPC for setting aside the order dated 12.12.2024 passed by

the IX Additional City Civil And Sessions Judge, Bengaluru (CCH-5)

in O.S. No.2172/2024 for having granted injunction against

respondent-plaintiff.

2. Heard learned counsel for the appellants and learned

counsel for respondent.

3. The appellants were defendants and respondent was

plaintiff before the trial Court. For the sake of convenience, the

rank of the parties is retained to as before the trial Court.

4. The case of the plaintiff before the trial Court is that

plaintiff filed a suit for injunction restraining the defendants from

interfering with peaceful possession and enjoyment of the suit

schedule property and also for mandatory injunction directing the

defendants to remove the illegally made trenches and foundation on

the western side of the schedule property on the ground that the

plaintiff is the absolute owner and in possession of the schedule

property bearing BBMP Khatha No.538A/550/51/871/87, measuring

East to West 46 feet, North to South 142 feet, measuring 6532 Sq.

Ft., presently falls within the limits of BBMP Ward No.193-Arakere

Sub Division, which is a portion of survey No.87/1 of Hulimavu

Village, Begur Hobli, Bengaluru South Taluk.

5. It is contended that the plaintiff acquired property through

a gift deed dated 02.09.2023 executed by N. Savithramma in favour

of plaintiff and the same was registered before the Sub-Registrar

and he was put in possession and enjoyment of schedule property.

After acquisition, the plaintiff put up a compound wall covering

schedule property and got transferred the khatha in his name and

paid taxes. It is further contended that originally, K.M.

Muniramaiah was the owner of the property in survey No.87/1 to an

extent of 2 acres 29 guntas acquired the same under sale deed

dated 05.05.1946 and he was in possession of the same. It is

further contended that earlier, the said land belonged to Patel

Hanumappa and family members, who mortgaged the said property

to Sri Kodandaramaswamy Co-operative Society. Since Patel

Hanumappa had not repaid loan amount, the property was

purchased by the said society on 16.10.1939 and it was sold to one

B.M. Muniswamapaa and Appareddappa, who in turn sold the same

to K.M. Muniramaiah on 05.05.1946 and he was put in exclusive

possession exercising all the rights. In the circumstances, the said

Patel Hanumappa and family members divested their so called

rights and ownerships and also possession over the said properties.

The defendants claimed right through Patel Hanumappa. It is

contended that after demise of K.M Muniramaiah, the property

devolved upon his grandson Jayanth as per bequeath made by

Muniramaiah. After the demise of Jayanth, it was devolved upon

Savithramma, who is the only legal heir of Jayanth. Later, the

property was gifted by the said Savithramma to the plaintiff. But

the defendants were claiming and interfering with the peaceful

possession and enjoyment of the suit schedule property by the

plaintiff. Hence, the plaintiff filed the present suit. Along with the

suit, the plaintiff also filed an application for injunction and the

same was granted by the trial Court, which is under challenge.

6. Learned counsel for the appellants has contended that the

order of the trial Court is perverse and capricious. The suit filed by

the plaintiff is a created document for the purpose of injunction in

the name of Savithramma who created gift deed dated 02.09.2023.

On the alleged gift deed executed by Savithramma, the plaintiff

created 'B' Khatha on 14.09.2023 to the extent of 6532 sq. ft. to

deprive the right of the appellant in survey No.87/1A1, which was

acquired by the husband of appellant No.1 measuring 9 guntas of

land and he was in its exclusive possession. The plaintiff

intentionally created a document and paid taxes to deprive the right

of the defendants. The trial Court has not properly appreciated the

documents and therefore, prayed for setting aside the impugned

order.

7. It is also contended by the learned counsel that the

husband of the defendant No.1 and father of defendant Nos.2 and 3

acquired right and title over 2 acres 9 guntas in survey No.87/1

under sale deed dated 05.05.1946. Thereafter, the members of

Krishnappa divided the property among them. The land to the

extent of 14 guntas was allotted to Krishnappa in new survey

No.87/1A1 and remaining land was allotted to other family

members. The khatha stood in the name of Krishnappa and

thereafter, he sold 5 guntas in favour of third parties and retained

9 guntas of land. The revenue document stood in their names for

30 years. The Deputy Commissioner has given conversion order

dated 17.05.2010 itself. Khatha for 9 guntas of land stands in the

name of Krishnappa. Thereafter, the defendants were in possession

and enjoyment of the schedule property. They have constructed

residential house in some portion of the land long back and also

commercial shops facing towards road. Taxes were paid for the

said land. Therefore, the defendants are in possession of the

schedule property. The plaintiff has created documents without any

title and filed the suit for injunction. Hence, prayed for dismissing

the appeal by setting aside the order of the trial court.

8. Having heard the learned counsel appearing for the

parties, perused the records.

9. The points that arise for consideration are:

(i) Whether the plaintiff has made out prima facie case for granting injunction in their / his favour ?

(ii) Whether the balance of convenience lies in favour of the plaintiff ?

(iii) Whether there would be irreparable loss, if injunction is granted ?

(iv) Whether the order of the trial court calls for interference ?

10. On perusal of the records, the plaintiff claims schedule

property as a gifted property by his sister i.e. Savithramma on

02.09.2023. The plaintiff has not produced any documents as to

how his sister got title over the suit schedule property. But it is

contended that the land was originally belonged to Patel

Hanumappa, who has mortgaged Property to Kodandaramaswamy

Co-operative Society. Since the loan was not paid, the property was

sold by auction to one K.M. Muniramaiah. Subsequently, after the

death of K.M. Muniramaiah, his grand son Jayanth succeeded the

property and after his demise, the wife of Jayanth, i.e.

Savithramma became the owner of the property. Hence, she has

gifted the property to the plaintiff. Whereas, defendants' contention

is that the property belongs to Krishnappa (husband of appellant

No.1), who was allotted the property of 14 guntas in Sy. No.87/1A.

After selling 5 guntas of land of Krishnappa to Sri Laxman,

Bhagyalaxmi, Bhaskar Shastri and Nankaram. They kept remaining

9 guntas of land and thereafter, they got converted the land into

non-agricultural land as per the order of the Deputy Commissioner

dated 17.05.2010. It is renumbered as Sy. No.87/1A1 for 9 guntas

of land in Hulimavu village. The sale deed relied upon by the

plaintiff dated 05.05.1946 in favour of one Muniramaiah, which

reveals that the land was mortgaged to one Kodandaramaswamy

Co-operative Society and the same was purchased by

Muniswamappa and the land was given to back to Patel

Hanumappa. Subsequently, miscellaneous case was filed and

mortgage was released and there was compromise in the

miscellaneous case. It is further held that there is no right, title

over the schedule property for Muniswamappa. It is further revealed

that 4 acres of land was retained by the vendors and remaining

land was given back to 6 others persons. B.M. Muniswamapaa and

Appareddappa said to be retained the land and the said remaining

portion of land were given back to Muniramaiah. The defendants

claim that the said property was succeeded by their ancestors.

11. On perusal of the said documents, though title vested

with B.M. Muniswamappa, the possession was retained by them,

which reveals that the defendants are continued to be in possession

and that after death of Patel Hanumappa, the property devolved in

the name of their children and family to the extent of 14 guntas of

land purchased by Krishnappa and out of 14 guntas of land, 5

guntas was sold by retaining 9 guntas were retained by them.

Subsequently, Krishnappa requested the Deputy Commissioner

and obtained conversion order for 9 guntas of land on 17.05.2010,

and accordingly, khatha certificate was obtained. Tax paid receipts

also reveal that the schedule property stood in the name of

Krishnappa. After the death of Krishnappa, the schedule property is

in possession of defendant No.1 i.e. the wife of Krishnappa and

defendant Nos.2 and 3 i.e. the children of Krishnappa. These

documents clearly reveal that the defendants are in possession of

the schedule property.