Karnataka High Court
Sri. Byrahanumaiah vs Sri. Govinde Gowda S/O Late ... on 28 March, 2013
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
MISCELLANEOUS FIRST APPEAL NO.1796 OF 2013 (CPC)
BETWEEN:
1. Sri.Byrahanumaiah,
S/o late Chikkahanumaiah,
Aged about 56 Years.
2. Smt.Jayamma,
W/o late Byrahanumaiah,
Aged about 51 Years.
3. Smt.Suma @ Sumithra,
D/o late Byrahanumaiah,
Aged about 26 Years.
4. Smt.Mala,
D/o late Byrahanumaiah,
Aged about 24 Years.
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Appellant Nos.1 to 4 are
Residing at 1st Main Road,
Deepanjalinagar,
BANGALORE - 560 026. .. APPELLANTS.
(By Sri.H.M.Somashekaraiah, Adv.)
AND:
Sri.Govinde Gowda,
S/o late Channarayappa,
Aged about 51 Years,
Residing at No.31/10,
F.C.I. Layout,
Deepanjalinagar,
BANGALORE - 560 026. .. RESPONDENT.
(By Sri.R.P.Somashekaraiah, Adv.)
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This Appeal is filed under Order 43, Rule 1(r) of the
Code of Civil Procedure, against the Order dated 02.01.2013
passed on I.A.No.1 in O.S.No.3735/2012 on the file of the V
Additional City Civil and Sessions Judge, Bangalore, allowing
I.A.No.1 filed under Order 39, Rule 1 and 2 of CPC for T.I.
This Appeal coming on for Admission this day, the
Court delivered the following:
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JUDGMENT
Defendant Nos.1 to 4 in O.S.No.3735/2012 on the file of V Additional City Civil Judge, Bangalore, have come up in this appeal impugning the order dated 02.01.2013 sofaras it pertains to orders on I.A.No.1 filed by plaintiff under Order, 39, Rule 1 and 2 of CPC.
2. Brief facts leading to this appeal are as under:
Original suit in O.S.No.3735/2012 is filed by the sole respondent herein seeking relief of permanent injunction against defendants 1 to 4. The case of the plaintiff before the Court below is that the suit schedule property was purchased by him under registered Sale Deed dated 26.07.1997 executed by defendant No.1, who is none other than the husband of defendant No.2 and father of defendants 3 and 4. Pursuant to Sale Deed dated 26.07.1997 he put up construction on the suit schedule property and was residing there. According to him, he decided to demolish a portion of the building constructed on the suit schedule property. In 4 that behalf, he approached Bangalore City Corporation to secure sanctioned plan and thereafter demolished a portion of the building which was earlier constructed by him on the suit schedule property and took up reconstruction thereon.
3. When the matter stood thus, it is stated that defendant Nos.1 to 4 obstructed the construction activities taken up by him on the suit schedule property under the premise that the suit property belongs to them and plaintiff has no manner of right, title and interest thereon, therefore he should not put up any construction on suit property. It is the case of plaintiff that he approached the jurisdictional police, they were of no assistance, they did not even look into his complaint and threw him out of the station with free advice to approach Civil Court for necessary relief. It is only at that juncture, plaintiff filed the suit seeking necessary relief.
4. In the said suit, after service of summons defendants entered appearance, filed written statement and statement of objections on I.A., contending that the suit schedule property 5 is the absolute property of defendants' family, which has fallen to their share in a Panchayath Parikath, taken place on 25.02.1991, since then defendants are in possession and enjoyment of the same, at no point of time, suit schedule property was sold in favour of plaintiff and plaintiff has no manner of right, title and interest to be in possession of the suit property or to take up any construction thereon.
5. In the original suit, the Trial Court on appreciation of materials available on record in the form of registered Sale Deed dated 26.07.1997, a xerox copy of which would disclose that the Sale Deed being executed by defendant No.1, Byrahanumaiah in favour of plaintiff, Govindegowda with reference to schedule referred to therein and also the recitals regarding the manner in which he acquired the property and for which purpose, he is selling the suit property to plaintiff in the year 1997 and other related documents, namely katha standing in the name of plaintiff and also documents like gas connection, electricity power connection to the building 6 constructed therein, with upto date tax paid receipts in respect of the suit property paid in the name of plaintiff, the Court below has come to the conclusion that prima facie plaintiff has established that he is the owner of suit schedule property having purchased the same through registered Sale Deed dated 26.07.1997 executed by defendant No.1. In that view of the matter, the application in I.A.I filed under Order 39, Rule 1 and 2 of CPC for the relief of temporary injunction restraining defendant Nos.1 to 4 from interfering with possession and construction activities taken up on the suit schedule property was allowed. Being aggrieved by the same, the present appeal is filed by defendants 1 to 4.
6. In this appeal, an application is also filed by appellants in I.A.I/2013 under Order 41, Rule 27 read with Section 151 of CPC, wherein several documents are sought to be produced, they are copy of memorandum of Palupatti dated 25.02.1991, copy of registered General Power of Attorney dated 11.05.1992, copy of absolute Sale Deed dated 7 26.07.1997 and also memo with five specimen left thumb impression of Byrahanumaiah, appellant No.1 with an attempt to demonstrate before the Court that the thumb impression seen on the backside of first page of Sale Deed dated 26.07.1997 is not that of Byrahanumaiah, though the signatures in the Sale Deed appears to be that of him.
7. Heard the counsel appearing for appellant and as well as respondents. Perused the Judgment impugned and also the documents sought to be produced and relied upon by filing the same under Order 41, Rule 27 of CPC. On going through the entire materials available on record, it is seen that defendant Nos.1 to 4 have caused substantial damage to their case by relying upon the documents referred to in their application filed under Order 41, Rule 27 of CPC. On going through the entire documents available on record, it is clearly seen that Govindegowda, plaintiff in the suit and defendant Nos.1 to 4, namely Byrahanumaiah, his wife Smt.Jayamma and children, namely Smt.Suma and Smt.Mala are residents 8 of Deepanjalinagar even prior to 1991. Admittedly Palupatti is dated 25.02.1991, wherein suit property and other portion of property was given to the share of defendant No.1 in a partition which has taken place between himself and his brother, wherein the address of Byrahanumaiah is shown to be situated in 1st Cross of Deepanjalinagar, otherwise Devatigeramanahalli, which is the old name of the said extension. It is further seen that there is a registered General Power of Attorney executed by the very same Byrahanumaiah in favour of plaintiff, Govindegowda, which is the document produced by himself which clearly disclose that the said Power of Attorney is executed by Byrahanumaiah authorizing Govindegowda to approach the Bangalore City Corporation to get the katha of a property measuring 30 feet and 75 feet in Ward No.36 of Bruhath Bangalore Mahanagara Palike, situated within the limits of Deepanjalinagar in land bearing Sy.No.31/1. It is also seen that subsequent to execution of Power of Attorney in favour of plaintiff, the said property is registered in Bangalore City Corporation. Thereafter Sale 9 Deed is also executed on 26.07.1997 in respect of suit property, which is said to be measuring 30 feet and 72 feet. In the said Sale Deed, there is also reference to not only the property, i.e., conveyed in favour of plaintiff in the said Sale Deed, there is also reference to purchaser in the said property, owning some other property adjacent to property conveyed in the Sale Deed dated 26.07.1997 as could be seen from the schedule in Sale Deed and thereafter, it is seen that katha of the said property is registered in his name in the Corporation records, upto date tax is paid in respect of the suit property in the name of plaintiff, Govindegowda. It is also seen that the tax paid receipt is in respect of not a vacant site, but it is in respect of building constructed therein. This fact is further confirmed by sanctioned plan which is produced by plaintiff, which shows that in the year 2011, a sanction plan is issued for further construction of building, which pre-supposes that there was already a building in existence on the said property.
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8. With all these material on record, it is clearly seen that the averments made in the plaint appears to be more genuine and acceptable with reference to documents produced not only by the plaintiff, but also by defendants. In that view of the matter, the Court below has rightly come to the conclusion that the plaintiff has made out prima facie case to demonstrate that he has been in possession of the suit property even prior to 26.07.1997, the date when the Sale Deed was executed in his favour.
9. In fact, when this matter was heard on the previous date of hearing, i.e., on 27.03.2013, this Court did ask certain questions to learned counsel, Sri.H.S.Somashekaraiah regarding the documents which were produced by him and also other documents which are on record regarding earlier transaction for which learned counsel, Sri.H.S.Somashekaraiah submitted that he does not have personal knowledge and his arguments is based on the instruction of his clients. When this Court pointed out that if 11 this Court comes to conclusion that there is fraud and falsehood in the case of appellants, the appeal would be dismissed imposing heavy cost. That prompted the defendant Nos.1 to 4 in filing a memo this day seeking permission to withdraw the appeal.
10. This Court after hearing the counsel for both parties convinced beyond all reasonable doubt that the litigation in O.S.No.3735/2012 on the file of the City Civil Court, Bangalore, is at the instance of defendant Nos.1 to 4 who have unscrupulously stake a claim in respect of property, which was disposed of by first of them way back in the year 1997 for family necessity. Being aware of the same and knowing that the plaintiff is in continuous possession of suit property from 1997 till the date of filing of the suit, they have unnecessarily created obstruction to the construction work taken up by him. At this juncture, this Court feel that assuming for a moment if all the documents are bogus, forged and concocted by plaintiff nothing prevented first defendant or any of the defendants in filing a complaint against the 12 plaintiff in occupying the suit property without having any manner of right, title or interest over the suit property since 1997. Assuming for a moment, Sale Deed dated 26.07.1997 is forged and concocted, nothing prevented them from initiating proceedings seeking declaration that the said documents are forged and concocted. In the absence of any such attempt from appellants herein from 1997 to this day clearly indicate that the disturbance caused by defendant Nos.1 to 4 in the construction taken up by plaintiff in the suit property is with ulterior motive and clear intention of harassing the plaintiff when they have no manner of right, title and interest over the suit property, which they had already conveyed to plaintiff way back in the year 1997.
11. In that view of the matter, this kind of arm twisting litigation which are mainly in the nature of extortion should not be encouraged by merely dismissing the appeal. While doing so, defendants should be put on stringent terms for unnecessarily wasting the time of Court below and as well as this Court by coercing the plaintiff to start this litigation, 13 which has come into place mainly at the instance of defendant Nos.1 to 4. In that view of the matter, while dismissing the appeal cost of Rs.1,00,000/- is imposed on defendant Nos.1 to 4 for their act in causing illegal obstruction for the construction taken up by plaintiff, in the process wasting valuable time of this Court. The defendants 1 to 4 shall deposit the same in this Court within 4 weeks from this day. Failing which the 1st respondent herein, plaintiff in the Court below shall levy execution petition as if this is money decree and recover the same either seeking attachment of sale of the property of appellants 1 to 4 herein and/or by securing arrest and detention of 1st respondent in civil prison for recovery of said cost. From out of the cost of Rs.1,00,000/-, Rs.75,000/- to be deposited with the Registry of this Court and Rs.25,000/- shall be paid to plaintiff as cost of this proceedings.
Sd/-
JUDGE AGV.