Karnataka High Court
Sri N Gopinath vs Smt Vanitha Nagaraj on 23 August, 2019
Equivalent citations: AIRONLINE 2019 KAR 1659, 2020 (1) AKR 10
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.33222/2019 (GM-CPC)
&
WRIT PETITION NO.34016/2019
BETWEEN:
SRI N.GOPINATH,
AGED ABOUT 64 YEARS,
S/O DR.RAMACHANDRA RAO,
RESIDING AT FLAT NO.1,
ANJALI APARTMENTS,
NO.24,
SANNIDHI ROAD,
BASAVANAGUDI,
BENGALURU-560 004. ...PETITIONER
(BY SRI. BHARATH KUMAR.S, ADVOCATE)
AND:
1. SMT. VANITHA NAGARAJ,
AGED ABOUT 63 YEARS,
W/O LATE B.A.NAGARAJ,
2. SRI B.N.VIKRAM,
AGED ABOUT 39 YEARS,
S/O LATE B.A.NAGARAJ,
3. SRI B.N.VISHAL,
AGED ABOUT 36 YEARS,
S/O LATE B.A.NAGARAJ,
ALL ARE RESIDING AT
NO.110,
12TH "B" CROSS,
J.P.NAGAR II PHASE,
BENGALURU-560 078.
2
4. SMT K.SARITHA,
AGED ABOUT 39 YEARS,
W/O SRI K.PRATHAP REDDY,
RESIDING AT
NO.278, 2ND FLOOR,
5TH MAIN, RAMAIAH CITY,
BENGALURU-560 078.
5. UNION OF INDIA REPRESENTED BY ITS
SECRETARY TO GOVERNMENT,
MINISTRY OF LAW AND JUSTICE,
GOVERNMENT OF INDIA,
NEW DELHI-110 001.
(DELETED AS PER ORDER OF THIS HON'BLE
COURT DT:13/08/2019) ... RESPONDENTS
(BY SRI. K RAVISHANKAR, ADVOCATE FOR R4;
V/O. 23/8/2019, NOTICE TO R1 TO 3 DISPENSED WITH)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLE 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH ORDER XXXVIII RULE 3A OF CPC,
SET ASIDE THE ORDER OF TRIAL COURT PASSED BY
CITY CIVIL JUDGE, BANGALORE (CCH-25) IN
O.S.5598/2019 DATED 31.07.2019 ANNEXURE-A
ORDERING ISSUE OF NOTICE AND DIRECT THAT
THOSE APPLICATIONS BE HEARD AFRESH FOR EX-
PARTE ORDERS OR IN THE ALTERNATIVE, DIRECT
THAT THE I.As UNDER ORDER XXXVIII RULE 1 & 2 OF
CPC, ANNEXURES-K & L FILED BY THE PETITIONER TO
BE DISPOSED-OFF WITHIN THIRTY DAYS FROM THE
DATE OF THE APPLICATION.
THESE WRIT PETITIONS COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner being the plaintiff in a declaration & injunction suit in O.S.No.5598/2019 is knocking at the doors of writ court grieving against deferring of consideration of his 3 application filed under Order XXXVIII Rules 1 & 2 of CPC seeking an order of temporary injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the suit property. The respondents having entered appearance through their counsel and having filed the Statement of Objections, resist the suit.
2. Learned counsel for the petitioner submits that the suit property was bought by the petitioner vide registered sale deed dated 30.12.1995, a copy whereof is at Annexure- B; khata has been transferred and khata extract is at Annexure-D; petitioner has been paying the taxes from the beginning till date and the tax paid receipts are in Annexure- C series; he had also put up a small shed with power supply by the BESCOM; the entire property has a compound wall; this being the position, on interference by the respondents, petitioner has filed the subject suit; instead of granting immediate protective relief, the learned trial Judge has only ordered emergent notice; the respondents being rich and mighty, are highhandedly trying to put up construction and therefore, the indulgence of this Court is warranted. 4
3. The learned counsel for the respondents vehemently contends that the respondents have bought the property registered sale deed dated 29.10.2018 vide document No.1 to the plaint; khata extract for the year 2019- 20 and the khata transfer are at document Nos.2 & 3; tax paid receipt dated 31.05.2019 is at document No.4; encumbrance certificate is at document No.5; fast track new power connection by BESCOM are at document Nos.6 & 7; copies of photographs about the digging of foundation are at document No.10; the respondents having made all reasonable enquiries and after giving a public notice, have bought the property specially after verifying the encumbrance records which do not reflect petitioner's name at all; since the petitioner interfered with construction activity, the 4th respondent has filed an injunctive suit in O.S.No.5610/2019 and the order of temporary injunction limited in duration has been granted by the trial court on 31.07.2019 at Annexure-R6 to the Statement of Objections after looking into merits of the case and balance of convenience; the petitioner has suppressed this fact and therefore, this court should decline to interfere in the matter. 5
4. It needs to be stated at the outset that this matter was taken up with the consent of the parties for final disposal since the pleadings are complete and the lis lies in a narrow compass; ordinarily, this court would have asked one of the courts below to consider the rival cases of the parties afresh and pass orders; however, since both the sides have argued their respective cases extensively, this court having considered their applications filed in their rival suits, on merits, has disposed off these writ petitions.
5. Having heard the learned counsel for both the sides and having perused the Petition Papers and also after perusing the decision cited at the Bar, this court grants indulgence in the matter for the reasons infra.
a) petitioner has bought the suit property from one Mr.B.A.Nagaraj and his two minor sons (as they were then) vide registered sale deed dated 30.12.1995; there were three more vendors and that all the vendors were represented by their GPA holder; this is about a quarter century ago; the khata had been transferred and taxes have been paid up-
to-date; there was a small structure put up by the 6 petitioner in the suit site, which has a compound wall; he has also obtained BESCOM power supply in the recent past; all the original documents are in the custody of the trial court as reflected in the order sheet itself; the assertion of the respondents and the photographs of alleged construction by the respondents warrant issuance of an order of temporary injunction restraining respondents from interference;
b) admittedly, the contesting respondents have bought the subject property from the widow of petitioner's vendor Mr.B.A.Nagaraj and the same two sons who too were parties to petitioner's sale deed; respondents sale deed is dated 29.10.2018 and thus not even a year has lapsed since she bought the property; prima facie she would not get the title to the property because of the principle of nemo dat quad non habet inasmuch as no property was available to widow and the children, the same having been sold to the petitioner by Mr.B.A.Nagaraj and the very same children about a quarter century ago; the khata has been transferred and up-to-date taxes have been paid; there was a 7 small structure and the property has a compound wall;
c) as already said above, contesting respondents sale deed is not even one year old and pursuant to this sale deed, it is true khata has been transferred and taxes are paid for the current year; now the BESCOM also has given sanction for power supply; the contention of the respondents that as between two registered sale deeds, their sale deed although is subsequent, has to have over riding effect on that of the petitioner since petitioner has not produced the GPA, appears to be farfetched an argument and therefore, it cannot be countenanced at this stage;
d) the other contention that petitioner being aware of the order of temporary injunction secured by the respondents in their suit having suppressed the same, is liable to be non-suited, is difficult to accept because:
(i) petitioner had filed the declaration suit in O.S.No.5598/2019 [CCH XXV] on 29.07.2019 whereas the respondents have filed their bare injunction suit in O.S.No.5610/2019 [CCH XVIII], a day after i.e., 30.07.2019; true it is an order of 8 temporary injunction limited by duration till appearance of the petitioner herein is issued by CCH XVIII on 31.07.2019;
(ii) although the respondents have placed prima facie material as to they having sent the intimation to the petitioner, but admittedly, the postal shara states "unclaimed"; therefore, it cannot be readily presumed that the petitioner was served with the court process or the postal cover especially when the service is emphatically denied by the petitioner; and
(iii) the decision of this court in the case of SMT. VITHABAI G.GHODAKE AND ANOTHER V. THE UNITED WESTERN BANK LIMITED, BY BRANCH MANAGER, DHARWAD AND OTHERS, ILR 2003 KAR 1306, cited by the respondents to treat postal shara "unclaimed" as refusal to accept service, is bit difficult to accept; the said decision was rendered holding service as sufficient inasmuch as apart from postal shara 'not claimed', the notice sent by RPAD had been duly served unlike in the present case; these facts are stated at para 7 of the decision;
therefore, the invocation of suppresio veri by banking upon the decision of this court in the case of MIRZA MOHAMMED YOUSUF BAIG V. M/S. DECCAN ENTERPRISES, ILR 1996 KAR 1618 is not well founded for the purpose of non-suiting the petitioner; for the same reason, the Apex Court decision in the case of KISHORE SAMRITE VS STATE OF U.P. & ORS, (2013) 2 SCC 398, cannot be pressed into service;
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e) the contention of the respondents that the other court having granted a temporary injunctive relief in their suit, although comes in the way of granting the relief in the writ petition, is bit difficult to accept because admittedly the said order is limited in operation by the appearance of petitioner in the said suit; secondly, the other court which granted this interim order, admittedly did not have petitioner's documents of title and collateral papers in its records; had these documents been adverted to, no reasonably trained mind in law would have granted the temporary relief to the respondents;
f) the contention of the respondents that petitioner has bought the property through the GPA holder of the vendors whereas respondents have bought it from the widow and children of petitioner's vendor Mr.B.A.Nagaraj, does not add extra merits to their case; ordinarily, as between two registered documents, the prior one overrides the later, the property being the same, subject to all just exceptions into which arguably the case of the respondents does not fit in; and 10
g) lastly, the contention that the petitioner has not taken up pleadings about prima facie case and balance of convenience and therefore, he is not entitled to grant of temporary order of injunction, is liable to be rejected because plaintiff has sufficient pleadings in the plaint and in the affidavit supporting the application; secondly, while construing the pleadings of the parties, court cannot keep its common sense in cold storage; petitioner's suit is both for declaration & injunction whereas the suit of the respondents is only for a decree of bare injunction; thirdly, petitioner has made out a prima facie case and shown that the balance of convenience lies in his favour especially when, even before this court, the respondents contend about the alleged ongoing construction in the suit property and thus, there is interference by the respondents.
5. Suit of the petitioner in O.S.No.5598/2019 for a decree of declaration & injunction is in CCH XXV and the suit of the respondents in O.S.No.5610/2019 for a decree of bare injunction is in CCH XVIII; in both the suits, parties are same and the property is also same; therefore, it is just and 11 reasonable that both these suits should be clubbed together and tried by one court; a decision in this regard needs to be taken by the learned Principal District and Sessions Judge, Bengaluru City.
In the above circumstances, this Writ Petition succeeds; petitioner's application in I.A.No.1 filed under Order XXXVIII Rules 1 and 2 of CPC, 1908 in O.S.No.5598/2019 having been favoured; an order of temporary injunction issues restraining the respondents herein from interfering with petitioner's peaceful possession and enjoyment of the suit schedule property; consequently, the ad interim order dated 31.07.2019, of temporary injunction limited by duration, granted by CCH XVIII in respondents suit in O.S.No.5610/2019 shall not be continued.
All the observations made by this court herein above being confined to disposal of these writ petitions, shall not in any way influence the trial and decision making in the subject suits.
The learned Principal District & Sessions Judge, Bengaluru City is requested to club both the subject suits and allot them to one single court, preferably other than the 12 subject two courts; the allottee court is requested early trial and disposal of the said suits.
No costs.
Sd/-
JUDGE DS