Karnataka High Court
Sri Dayalan vs Sri Basavaraj M on 28 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 7897 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.7897 OF 2024 (CPC)
BETWEEN:
1. SRI. DAYALAN,
S/O VEERASWAMY REDDIAR,
AGED ABOUT 71 YEARS,
R/O NO.10/3, 8TH CROSS,
DAYANANDANAGAR,
SRIRAMPURAM,
BENGALURU -560 021.
...APPELLANT
(BY SRI. K.N.NITISH, ADVOCATE)
AND:
1. SRI. BASAVARAJ M.,
S/O LATE MADAIAH,
Digitally signed AGED ABOUT 42 YEARS.
by DEVIKA M
Location: HIGH 2. SMT. MAHADEVAMMA,
COURT OF W/O LATE MADAIAH,
KARNATAKA
AGED ABOUT 42 YEARS.
BOTH RESIDING AT NO.71/1,
7TH MAIN ROAD, PRAKASHNAGAR,
BENGALURU -560 021.
...RESPONDENTS
(BY SRI. VIVEKANANDA T.P., ADVOCATE FOR RESPONDENTS;
SRI. B.G.RAJASHEKHAR &
SRI. SHIVANANDA T.S., ADVOCATES FOR C/R1 AND R2)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 24.10.2024 PASSED ON I.A.NO.1
IN O.S.NO.6667/2021 ON THE FILE OF THE LVI ADDITIONAL
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MFA No. 7897 of 2024
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH 57),
DISMISSING THE I.A.NO.1 FILED UNDER ORDER XXXIX RULE 1
AND 2 READ WITH SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. This appeal is filed against the rejection of I.A.No.1
filed by the plaintiff under Order XXXIX Rule 1 and 2 read with
Section 151 of CPC in O.S.No.6667/2021 vide order dated
24.10.2024.
3. The factual matrix of the case of the plaintiff before
the Trial Court while seeking the relief of permanent injunction
is that the plaintiff is the absolute owner in constructive
possession of the suit schedule property. The defendants in
collusion with third party are making hectic efforts to grab the
suit schedule property and create third party rights with a
malafide intention to make an unlawful gain and to cause loss
and injury to the plaintiff. It is contended that balance of
convenience is in his favour and he has got prima facie case. If
the defendants succeed in their illegal and arbitrary acts, he will
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suffer irreparable loss and injury. It is also contended that he
has got a good case on merits. In the plaint it is stated that the
suit property originally belonged to one Sri Natesh Mudaliar,
who conveyed the said property to Smt. Anwar Bi and her son
Sri Sayyed Khalil on 09.08.1947 vide a registered sale deed.
Subsequently, the said Smt.Anwar Bi and Sri Sayyed Khalil sold
the suit property to one Sri Shanmugam on 24.10.1977 for a
valuable sale consideration vide a registered sale deed. It is
contended that the said Shanmugam who was working in KEB,
took loan from KEB and deposited the title deeds with the latter
on 18.07.1978 and subsequently after the demise of Sri
Shanmugan, his wife Smt.Mangalamma cleared the aforesaid
loan. It is contended that Sri Sayyed Khalil executed a
rectification deed in favour of Smt.Mangalamma, clarifying the
survey number of the suit property as 66 instead of 64. It is
contended that after the demise of Smt.Mangalamma, her only
son Sri Rajarathnam executed an absolute deed of sale on
22.09.1999 in favour of the plaintiff. It is contended that ever
since the plaintiff has been enjoying the peaceful possession of
the suit property which is morefully described in the schedule.
It is contended that the khatha and all the revenue records are
standing in the name of the plaintiff.
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4. It is contended that on 23.01.2008, one late
N.Madaiah filed a suit for declaration, possession and mesne
profits against Smt. Padma and others in O.S.No.6620/2008. It
was his case that he was the absolute owner of the property
bearing old No.159, New No.38/1, situated at III Cross,
Robertson Block, Ramachandrapuram, Bengaluru, which he had
purportedly purchased from Maimunnisa under a registered sale
deed dated 13.04.1973. Furthermore, the said Madaiah
purportedly applied for transfer of khata in his name before the
BMP authorities which was objected by Mangalamma, who was
the mother of the defendants in O.S.No.6620/2008. According
to the BMP authorities, khata of the property claimed by
Madaiah stood in the name of Maimunissa. It is contended that
the said Madaiah had let out his property to Maimunissa for a
monthly rent of Rs.45/- and in order to evict her, he had filed an
eviction petition in HRC No.1549/87 which came to be allowed
on 30.08.1987. It is contended that the said Madaiah filed an
execution petition against Maimunissa in Ex.No.414/1994, which
was objected by Mangalamma by filing objector application and
the said application was disallowed and the Court comes to the
conclusion that there was no dispute with regard to the identity
of the property belonging to Madaiah. The said decree could not
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be executed and the Bailiff returned the delivery warrant without
executing the same. Having no other alternative, the said
Madaiah filed O.S.No.6620/2008 against the legal heirs of
Mangalamma for declaration, possession and mesne profits. It
is further contended that during the course of the trial, the said
Madaiah along with his henchmen tried to interfere with the
peaceful possession of the suit property by affixing suit
notice/summons on the wall. Immediately, the plaintiff herein
filed an application under Order I Rule 10 of CPC, seeking to
intervene and come on record as defendant No.5 in
O.S.No.6620/2008. The said application came to be allowed
and the plaintiff herein filed a written statement contending that
Madaiah's property in O.S.No.6620/2008 was different from the
suit property. In order to prove his case, Madaiah examined
himself as P.W.1 and another witness as P.W.2 and got marked
the documents at Exs.P.1 to 44. Per contra, the plaintiff
examined himself as D.W.1 and got marked the documents at
Exs.D.1 to 18. The description of the suit property in
O.S.No.6620/2008 claimed by Madaiah is in respect of house
bearing Old No.149, New No.38/1, present No.41/7.
5. The Court having considered the material on record
pronounced the judgment declaring Madaiah as the owner of the
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suit schedule property to the extent and boundaries as
described. However, it is pertinent here to note that the Court
in paragraph No.8 of the judgment observed that the suit
property measuring 20 x 60 ft. in Municipal No.41 originally
belonged to Syed Khalil and Anwar Bi and as such, their names
had been entered in khata on 30.07.1965 and thereafter, an
endorsement was issued on 09.08.1974. According to the
available materials on record, the suit property bearing site
No.68 has now been assigned site No.41. It is contended that in
O.S.No.6620/2008, the Court held that the property claimed by
Madaiah and the suit property herein cannot be one and the
same and the relief sought by Madaiah for declaration that the
sale deed dated 26.10.1977 in so far as the suit property is
concerned cannot be granted. The Court also observed that
"invariably there is no reference of suit boundaries in Ex.D.7. In
fact, there is no connection between the suit property and
Ex.D.7, therefore, the relief pertaining to sale deed dated
26.10.1977 cannot be granted to the plaintiff. However, the
plaintiff is entitled for possession of the suit property in
reference to the boundaries and the extent described."
Subsequently, the said Madaiah passed away and his son and
his wife who are none other than the defendants in the instant
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case filed Ex.No.1853/2018. The Court issued notice to the
judgment debtors in the aforesaid execution petition.
Shockingly, the plaintiff herein was also made as JDR No.5 and
on 13.09.2019, the plaintiff filed a detailed statement of
objections narrating all the facts and prayed for rejection of the
petition against him, there was no decree against him. Such
being the case on 06.12.2021, the defendants along with some
men claiming to be Court officials came near the suit property in
order to execute the delivery warrant. Immediately, the plaintiff
successfully resisted the interference made by the defendants
and tried to reason out that the suit property was different from
the property of the defendants. However, without heeding to
the requests made by the plaintiffs, the defendants and their
henchmen threatened the plaintiff that if he did not vacate and
handover the suit property, they would once again come along
with police and other anti social elements and would forcefully
remove the plaintiff from his peaceful enjoyment and possession
of the suit property. Hence, without any other alternative, the
plaintiff filed the suit and sought for the relief of temporary
injunction before the Trial Court.
6. The defendants appeared and filed the written
statement contending that the plaintiff is guilty of suppression of
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facts and he has not come to the Court with clean hands. It is
contended that the suit property originally belonged to one Sri
Natesh Mudaliar is true and correct. It is contended that Smt.
Anwar Bi and her son Sri Sayyed Khalil purchased the same
from Sri Natesh Mudaliar is false. It is contended that the said
schedule property was solely purchased by Smt.Anwar Bi.
Smt.Anwar Bi and Sri Sayyed Khalil sold the suit schedule
property to one Shanmugam on 24.10.1997 was denied in the
written statement. The contention that the said Shanmugam
who was working in KEB took a loan from KEB and deposited the
title deeds with the latter on 18.07.1978 and subsequently after
the demise of Sri Shanmugan, his wife Smt.Mangalamma
cleared the aforesaid loan, are denied. However, admits the
filing of the suit for declaration, possession and for mesne
profits against the defendants in O.S.No.6620/2008. The claim
that the defendant is the absolute owner of the suit property
bearing old No.159/38/1 situated at III Cross, Robertson Block,
Ramachandrapuram, Bengaluru is false and incorrect. It is
contended that the schedule property was purchased from
Maimunissa under a registered sale deed dated 13.04.1973. It
is admitted that Madaiah purportedly applied for transfer of
khata and the khata was standing in the name of Maimunissa is
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not disputed and the fact that Maimunissa was a tenant in
respect of the property and thereafter HRC was filed and allowed
is true. It is contended that Maimunissa has violated the terms
of the lease agreement and has sub-let the schedule property in
favour of Mangalamma, who is the vendor of the plaintiff herein.
The defendants also not disputed the fact that an application
was filed in Ex.No.414/1994 invoking Section 47 of CPC and the
same was objected and the application was not allowed. It is
contended that Madaiah filed O.S.No.6620/2008 against the
legal heirs of Mangalamma for declaration is not in dispute. It is
contended that the plaintiff filed an application under order I
Rule 10 of CPC and the same was allowed and he contested the
matter also not in dispute. It is contended that the very
contention of the plaintiff is not accepted and the decree was
granted in respect of the property bearing Old No.149, New
No.38/1 is correct, but present No.441/7 is false and incorrect.
It is contended that the property is situated at III Cross,
Robertson Block, Ramachandrapuram, Bangalore measuring
east to west 20 ft. and north to south 30 ft. admeasuring 600
sq.ft. is true and correct. It is contended that when the decree
was granted, the schedule is also mentioned as 38/1 and
present number is 441/7. It is contended that the very claim
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made by the plaintiff that they have derived the title from Syed
Khalil, who is the son of Anwar Bi is not correct and he was not
having any right to execute the sale deed in favour of the
plaintiff since already the mother had executed the gift deed in
favour of two daughters i.e., Maimunissa and Zaibunissa and
from Maimunissa only the defendant had purchased the property
and hence the question of granting the temporary injunction
does not arise.
7. Having taken note of the pleadings of both the
parties, the Trial Court formulated the points for consideration
as to whether the plaintiff has made a prima facie case for
granting the relief of temporary injunction, whether the balance
of convenience lies in favour of the plaintiff, whether the plaintiff
would be put to irreparable loss or injury if an order of
temporary injunction is not granted, whether the defendants
have made out sufficient grounds to vacate the order of
temporary injunction granted in favour of the plaintiff on
10.12.2021? Having considered the pleadings of the parties and
the material on record, the Trial Court answered point Nos.1 to
4 in the negative in coming to the conclusion that no prima facie
case is made in favour of the plaintiff and no balance of
convenience and no hardship is caused to the plaintiff and on
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the other hand comes to the conclusion that the defendants
have made out sufficient grounds to vacate the order of
temporary injunction by answering point No.5 in the affirmative.
8. Being aggrieved by the said order, the present
appeal is filed before this Court.
9. The main contention of the learned counsel for the
appellant before this Court is that it is not in dispute that
originally the property belonged to one Sri Natesh Mudaliar and
he sold the property in favour of Smt.Anwar Bi and her son Sri
Sayyed Khalil on 09.08.1947. It is the contention that Sayyed
Khalil sold the property to an extent of 20 x 60 ft. in favour of
Chikka Nanjundappa and the retained property was sold again
by Sayyed Khalil in favour of Shanmugam to an extent of 20 x
60 feet. The learned counsel contend that the plaintiff had
purchased the property from the legal heirs of Shanmugam in
the year 1977 and the property is described as No.41/7, old
No.41. The learned counsel brought to the notice of this Court
that the khata was transferred in favour of the plaintiff and all
the revenue documents stands in the name of the plaintiff as on
the date of filing of the suit. The learned counsel contend that
the defendants' father Madaiah had purchased the property on
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13.04.1973 and the property number is 38/1 and not property
No.41. The property is measuring 20 x 30 feet and the same
was purchased from Maimunissa. The learned counsel contend
that when the said Madaiah filed HRC case against Maimunissa,
the same was decreed and hence execution petition was filed for
taking possession in Ex.No.414/1994. The learned counsel
contend that the vendor of the plaintiff filed obstruction
application and the same was dismissed with an observation
that claim is made in respect of property No.41/7 and not in
respect of property No.38/1 and when the HRC decree was not
executed, suit was filed in O.S.No.6620/2008 against the vendor
of the plaintiff, wherein relief was sought for declaration and
possession. The learned counsel contend that while filing the
suit, in an ingenious method property is described as 38/1 and
also property 41/7. When the plaintiff came to know about the
same, he filed an impleading application and the same was
allowed and on contest, suit was decreed in respect of property
No.38/1, which is morefully described in Ex.P.1 and not in
respect of property bearing No.41/7. The learned counsel
contend that the declaration relief granted in favour of the
plaintiff in O.S.No.6620/2008 does not bind the plaintiff herein.
The learned counsel contend that Ex.No.1853/2018 was filed
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wherein the decree holder filed an application in respect of 38/1
and based on that application, when the delivery warrant was
issued, the same was resisted and immediately filed a suit when
they came near the property on 06.12.2021 and the suit was
filed on 08.12.2021.
10. The learned counsel brought to the notice of this
Court the averments made in paragraph No.17(g) of the written
statement, wherein the defendants have contended that they
are not going to interfere with the possession of the plaintiff, but
delivery warrant was taken in respect of property No.41/7 and
not in respect of 38 and 38/1. The learned counsel contend that
during the pendency of this appeal, an attempt was made to
demolish the property and a portion of the property was
demolished and hence immediately the appellant approached
this Court and this Court granted the relief not to further
demolish the building. The learned counsel contend that the
decree was granted in favour of property No.38/1 and not in
respect of property No.41/7 and property No.41/7 belongs to
the plaintiff. The Trial Court committed an error in passing an
order of temporary injunction in coming to the conclusion that
the plaintiff has not made out a case. Though the Trial Court
discussed the case of the plaintiff and defendants, in paragraph
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No.12, the Trial Court comes to the conclusion that the
defendants have taken the possession to an extent of 600 ft. in
the suit schedule property as per the delivery warrant issued in
Ex.P.No.1853/2018. It is also observed that it is not in dispute
that the father of defendant No.1 Sri Madaiah had filed a suit in
O.S.No.6620/2008 and it was decreed on 06.06.2017. It is not
in dispute that the plaintiff is defendant No.5 in the said case.
Though, it is observed in paragraph No.8 page 30 of the said
judgment that there is no connection between the suit property
and boundary in Ex.D.7 and though it is observed at page No.29
that the property in Ex.D.7 and the suit property cannot be one
and the same, the said suit has been decreed holding that the
plaintiff is the owner of the suit schedule property of the said
case to the extent and boundaries and the details of the
property as described in Ex.P.1. Further, an order is also passed
that the plaintiff is entitled for the possession of the property
within six months from the date of the decree. When the decree
has already been passed and possession has been taken in
terms of Ex.P.No.1853/2018, the question of granting
temporary injunction in favour of the plaintiff does not arise and
hence rejected the same.
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11. Per contra, the learned counsel for the respondents
contend that it is not in dispute that originally the property
belonged to one Natesh Mudaliar. The learned counsel contend
that sale deed was made in favour of Smt.Anwar Bi and her son
Sri Sayyed Khalil and Sayyed Khalil sold the property in favour
of Chikka Nanjundappa in the year 1968 with regard to half
portion of the property i.e., 20 x 60 feet. The learned counsel
contend that the mother Smt.Anwar Bi had executed gift deed in
favour of her two daughters i.e., Maimunissa and Zaibunissa in
the year 1969. The learned counsel contend that this sale deed
was executed by the son Sayyed Khalil in favour of Shanmugam
on 24.10.1977. The learned counsel contend that on the date of
executing the sale deed, Sayyed Khalil was not having any right
in respect of the said property since he had disposed of a
portion of the property on 30.12.1968 and mother also disposed
of remaining portion of property in favour of two daughters
Maimunissa and Zaibunissa. When such being the case, the
very contention of the appellant that Sayyed Khalil was having
right in respect of the property cannot be accepted and though
HRC petition was filed and decree was obtained, in the execution
petition an application was filed as objector and the same was
dismissed. Thereafter also when the suit was filed, an
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impleading application was filed and resisted the same and the
Trial Court granted the relief of declaration declaring that the
respondents/defendants are the owner of the property and
possession has been taken in terms of delivery warrant and the
question of granting the relief of temporary injunction does not
arise. The Trial Court rightly comes to the conclusion that when
the possession was taken in terms of execution, the question of
granting temporary injunction does not arise.
12. Having heard the learned counsel for the appellant
and the learned counsel for the respondents and considering the
material available on record, the points that arise for the
consideration of this Court are:
(i) Whether the Trial Court committed an error in
not granting the relief of temporary injunction
in rejecting the application filed by the
plaintiff/appellant filed under Order XXXIX Rule
1 and 2 of CPC and whether it requires
interference of this Court?
(ii) What order?
13. Having heard the learned counsel for the appellant
and the learned counsel for the respondents in length, both the
parties not disputes the fact that the property originally
belonged to one Sri Natesh Mudaliar and the same was sold in
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favour of Smt.Anwar Bi and Sri Sayyed Khalil in the year 1947.
It is not in dispute that the son of Smt.Anwar Bi i..e, Sri Sayyed
Khalil, who is also a joint purchaser along with the mother, sold
half portion of the property to an extent of 20 x 60 feet in the
year 1968 and in the said sale deed the mother was not a party.
It is important to note that the respondents also claim that the
mother had executed a gift deed in favour of two daughters
Maimunissa and Zaibunissa in respect of the remaining property
to an extent of 20 x 30 feet and 20 x 30 feet i.e., retained
portion is concerned. It is not in dispute that the vendor of the
plaintiff also purchased the property from Sayyed Khalil in the
year 1977, but in the meanwhile already portion of the property
which was gifted in favour of Maimunissa was sold in favour of
the father of the defendants Madaiah in the year 1973. It is
important to note that when the suit was filed by the defendants
in O.S.No.6620/2008, a decree was passed in favour of Madaiah
in respect of the property which was morefully described in
Ex.D.1 sale deed executed by Maimunissa in favour of Madaiah.
It has to be noted that the very dispute is with regard to the
flow of title is concerned and the respondents dispute the very
existence of the property to sell the property in favour of the
plaintiff in the year 1977. The learned counsel contend that
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while executing the gift deed, no description was given that the
property was purchased by Anwar Bi and there is no narration in
the gift deed. But having taken note of the schedule mentioned
in both the gift deeds, it is mentioned that the property on the
west belongs to Sayyed Khalil, but the fact that Sayyed Khalil
sold a portion of the property is also not in dispute and both of
them not disputes the same.
14. The learned counsel for the appellant brought to the
notice of this Court that when the very sale deed was
questioned by the defendants in O.S.No.6620/2008, the Trial
Court while disposing of the suit answered the very same issue
in the negative and not declared the same as null and vide as
claimed by the defendants. The Court has to take note of the
material on record regarding flow of title between the parties are
concerned. Apart from that, there is a gift deed in favour of two
daughters of Smt.Anwar Bi in the year 1969 itself. It is
important to note that whether these gift deeds are arising out
of the property purchased jointly by Anwar Bi and Sayyed Khalil
and when the learned counsel for the appellant disputes that no
reference was made in the gift deed, the matter has to be
decided by the Trial Court. It is important to note that when the
temporary injunction was not granted and when the appeal is
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pending, the respondents highhandedly made an attempt to
demolish the property and portion of the property was
demolished. There is a serious dispute with regard to the
identity of the property since decree was granted in favour of
the defendants in respect of property bearing No.38/1 and the
appellant/plaintiff claims the property bearing No.41/7. The
Trial Court granted the relief in O.S.No.6620/2008 in respect of
Ex.P.1 under which the defendants had purchased the property
from Maimunissa and whether property No.38/1 and property
No.41/7 which both of them are claiming are the same property
or different property has to be considered. No doubt, in HRC
case when the objector application was filed, finding was given
that both the properties are different, but no material is placed
on record to show how the property number was assigned Old
No.41, New No.41/7 and the defendants claim property No.38/1
in terms of Ex.P.1. When such being the dispute with regard to
the identity of the property and both of them are claiming right
in respect of the very same property based on the title of the
appellant as well as the defendants are claiming title based on
the title of the sale deed executed in favour of their father, it is
appropriate to direct both the parties to maintain status quo till
the disposal of the suit.
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15. With these observations, the appeal is disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
MD
