Karnataka High Court
B. Prabhanjana vs G. Santhiram on 24 May, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24 T H DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MFA NO.6158 OF 2019(CPC)
C/W
MFA NO.6157 OF 2019 (CPC),
MFA NO.6159 OF 2019(CPC) AND
MFA NO.6160 OF 2019(CPC)
IN MFA N O.6158 OF 2019
BETWEEN:
1. Basi Reddy Jayarami Reddy
S/o B. Subba Reddy
R/at Ling a Reddy Palli Villag e
Kalsap ad u Mand alam
Cuddap ah District
And hra Pradesh-516 217.
2. Koppolu Narasimha Reddy
S/o Late Koppolu Jang am Reddy
R/at No.7-4-76
Chemudur
Chennamp alli Panchanyithi
Badavel Mand amala
Cuddap ah District
And hra Pradesh-516 227.
3. BSR Build ers & Develop ers
A p rop rietorship concern
By its Prop rietor
Mr. B. Subb a Red dy
S/o B. Venkata Subba Reddy
Aged about 46 years
Having office at No.100/37/5
NGR Layout
Roopena Agrahara
:: 2 ::
Near Silk Board
Behind Mahend ra Showroom
Hosur Road
Beng aluru-560068.
...Appellants
(By Sri Sharath S. Gowd a , Advocate)
AND:
1. G. Vasundara Lakshmi
W/o S. Venkataramudu
Aged about 62 years
R/at No.385, 'A' Cross
26 t h Main, Jayanag ar
Beng aluru-560069.
(Represented Attorney Holder)
S. Sunil Kumar
W/o S. Venkataramudu
R/at No.385, 38 t h 'A' Cross
26 t h Main, Jayanag ar
Beng aluru-560069.
2. T.S. Anilkumar
S/o T. Srinivasa Murthy
Aged about 53 years
No.2, 9 t h Main
BSK 2 n d Stag e
Beng aluru-560070.
3. R. Manjunatha
S/o H.K. Ramegowda
Aged about 50 years
R/at No.1174
Paduvana Road
1 s t Cross, 4 t h Stage
T.K. Layout
Mysore-570022.
4. Dr D. Srinidhi
S/o V.R. Dwarakanath
:: 3 ::
Aged about 47 years
Present R/at No.1309
Rajeeva Ranjitha
15 t h Cross, 2 n d Phase
Girinag ar
Bang alore-560085.
...Respondents
(By Sri K.B.S Manian, Advocate for C/R1;
Notice to R2 to R4 is d isp ensed with
vid e ord er d ated 04.12.2019)
This MFA is filed under Order 43 Rule 1(r) read
with Section 151 of the CPC, ag ainst the order dated
15.07.2019 passed on I.A No.2 in O.S NO.1455/2018
on the file of the XIX Additional City Civil & Sessions
Judge, Beng aluru City (CCH-18), allowing I.A.No.2
filed und er Ord er 39 Rules 1 & 2 read with Section
151 of CPC.
IN MFA N O.6157 OF 2019
BETWEEN:
1. B. Prabhanjana
W/o B. Venkata Reddy
Aged about 35 years
R/at House No.6
Sy. No.89/5
Lokesh Nilaya
1 s t Floor, 1 s t Cross
Behind Karnataka Bank
Belland ur
Bang alore-560103.
2. BSR Build ers & Develop ers
A p rop rietorship concern
By its Prop rietor
Mr. B. Subb a Red dy
:: 4 ::
S/o B. Venkata Subba Reddy
Aged about 46 years
Having office at No.100/37/5
NGR Layout
Roopena Agrahara
Near Silk Board
Behind Mahend ra Showroom
Hosur Road
Beng aluru-560068.
...Appellants
(By Sri Sharath S. Gowd a , Advocate)
AND:
1. G. Santhiram
S/o P K Gop alan
Aged about 53 years
R/at No.383/B
Railway Officer's Quarters
MG Railway Colony
Magadi Road Post
Beng aluru-560023.
2. T.S. Anilkumar
S/o T. Srinivasa Murthy
Aged about 53 years
No.2, 9 t h Main
BSK 2 n d Stag e
Beng aluru-560070.
3. R. Manjunatha
S/o H.K. Ramegowda
Aged about 50 years
R/at No.1174
Paduvana Road
1 s t Cross, 4 t h Stage
T.K. Layout
Mysore-570022.
4. Dr. D. Srinidhi
S/o V.R. Dwarakanath
:: 5 ::
Aged about 47 years
Present R/at No.1390
Rajeeva Ranjitha
15 t h Cross, 2 n d Phase
Girinag ar
Beng aluru-560085.
...Respondents
(By Sri K.B.S Manian, Advocate for C/R1;
Notice to R2 to R4 is d isp ensed with
vid e ord er d ated 04.12.2019)
This MFA is filed under Ord er 43 Rule 1 (r) of
CPC, against the order d ated 15.07.2019 p assed on
I.A No.2 in O.S No.1452/2018 on the file of the XIX
Additional City Civil & Sessions Judge, Beng aluru City
(CCH-18), allowing I.A No.2 filed under Order 39 Rule
1 & 2 read with Section 151 of CPC.
IN MFA N O.6159 OF 2019
BETWEEN:
1. Smt. Rajlaxmi N Palagulla
W/o Narayan Red dy
Aged about 39 years
R/at Hajira Enclave
Sapthagiri P.G. For Ladies
No.1 and 2, 81/2, 1 s t Cross
Chanukya Layout
Arabic College Post
Nag avara
Beng aluru-560045.
2. BSR Build ers & Develop ers
A p rop rietorship Concern
By its Prop rietor
Mr. B. Subb a Red dy
S/o B. Venkata Subba Reddy
Aged about 46 years
:: 6 ::
Having office at No.100/37/5
NGR Layout
Roopena Agrahara
Near Silk Board
Behind Mahend ra Showroom
Hosur Road
Beng aluru-560068.
...Appellants
(By Sri Sharath S. Gowd a , Advocate)
AND:
1. M. Haroonal Rasheed
S/o Late Mazharul Hakh
Aged about 67 years
R/at No.26/2
1 s t Cross, Marappa Gard en
Benson Town Post
Beng aluru-560046.
2. T.S. Anilkumar
S/o T. Srinivasa Murthy
Aged about 53 years
No.2, 9 t h Main
BSK 2 n d Stag e
Beng aluru-560070.
3. R. Manjunatha
S/o H.K. Ramegowda
Aged about 50 years
R/at No.1174
Paduvana Road
1 s t Cross, 4 t h Stage
T.K. Layout
Mysore-570022.
4. Dr D. Srinidhi
S/o V.R. Dwarakanath
Aged about 47 years
R/at No.1309
Rajeeva Ranjitha
:: 7 ::
15 t h Cross, 2 n d Phase
Girinag ar
Bang alore-560085.
...Respondents
(By Sri K.B.S Manian, Advocate for C/R1;
Notice to R2 to R4 is d isp ensed with
vid e ord er d ated 04.12.2019)
This MFA is filed under Order 43 Rule 1(r) of
CPC, against the order d ated 15.07.2019 p assed on
I.A No.2 in O.S.NO.1457/2018 on the file of the XIX
Additional City Civil & Sessions Judge, Beng aluru
(CCH-18), allowing the I.A No.2 filed under Order 39
Rule 1 & 2 read with Section 151 of CPC.
IN MFA N O.6160 OF 2019
BETWEEN:
1. Byreddy Nag arjuna Reddy
S/o B. Sheshi Reddy
Aged about 32 years
R/at House No.30/1
Konapp ana Agrahara
Beng aluru South Taluk
Bang alore-560100.
2. G. Raveend ra Babu
S/o Gajulap alle Venkatasubba Reddy
R/at No.11/40, Mudireddypalli
Mamillap alle Post
Kalasap adu Mand al
Mamilap alle (Rural)
Cuddap ah District
And hra Pradesh-516217.
3. BSR Build ers & Develop ers
A p rop rietorship Concern
By its Prop rietor
:: 8 ::
Mr. B. Subb a Red dy
S/o B. Venkata Subba Reddy
Aged about 46 years
Having office at No.100/37/5
NGR Layout
Roopena Agrahara
Near Silk Board
Behind Mahend ra Showroom
Hosur Road
Beng aluru-560068.
...Appellants
(By Sri Sharath S. Gowd a , Advocate)
AND:
1. Smt. R. Pushp a
W/o K. Lakshman
Aged about 61 years
R/at No.190/17
18 t h Cross, 2 n d Block
Jayanag ar
Beng aluru-560011.
2. T.S. Anilkumar
S/o T. Srinivasa Murthy
Aged about 53 years
No.2, 9 t h Main
BSK 2 n d Stag e
Beng aluru-560070.
3. R. Manjunatha
S/o H.K. Ramegowda
Aged about 50 years
R/at No.1174
Paduvana Road
1 s t Cross, 4 t h Stage
T.K. Layout
Mysore-570022.
4. Dr. D. Srinidhi
S/o V.R. Dwarakanath
:: 9 ::
Aged about 47 years
Present R/at No.1307
Rajeeva Ranjitha
15 t h Cross, 2 n d Phase
Girinag ar
Bang alore-560085.
...Respondents
(By Sri K.B.S Manian, Advocate for C/R1;
Notice to R2 to R4 is d isp ensed with
vid e ord er d ated 04.12.2019)
This MFA is filed under Order 43 Rule 1(r) of
CPC, against the order d ated 15.07.2019 p assed on
I.A No.2 in O.S No.1459/2018 on the file of the XIX
Additional City Civil & Sessions Judge, Beng aluru
(CCH-18), allowing the I.A No.2 filed under Order 39
Rule 1 & 2 read with Section 151 of CPC.
These MFAs pertaining to Beng aluru Bench having
been heard & reserved on 01.04.2022, coming on for
pronouncement this d ay, the Court sitting at
Kalaburagi Bench through vid eo conferencing
pronounced the following:
JUDGMENT
All these four appeals are disposed of by a common judgment.
2. The XIX Additional City Civil and Sessions Judge, Bengaluru, by his order dated :: 10 ::
15.7.2019 on the applications filed under Order XXXIX Rules 1 and 2 CPC in O.S.1452/2018, O.S.No.1455/2018, O.S.No.1457/2018 and O.S.No.1459/2018 granted temporary injunction in favour of the plaintiffs restraining the defendants from interfering with suit properties. Aggrieved by this order, defendants No. 1 and 5
in O.S.1452/2018, defendants No.1, 2 and 6 in O.S.1455/2018, defendants 1 and 5 in O.S.1457/2018 and defendants No.1, 2 and 6 in O.S.1459/2018 have preferred these appeals.
3. For the sake of convenience and better narration of facts, the parties are referred with respect to rank of each of them in the suits.
4. The plaintiffs claim to be the absolute owners of certain sites formed in the layout formed by REMCO (BHEL) Cooperative House Building Society Limited ('BHEL Society' for :: 11 ::
short') at Pattanagere Village, Kengeri Hobli, Bengaluru South Taluk. The description of the site purchased by each plaintiff in every suit is given in the schedule to the plaints. If the plaintiffs in O.S.No.1455/2018, O.S.No.1457/2018 and O.S.No.1459/2018 are the original allottees from the society, the plaintiff in O.S.No.1452/2018 is a purchaser from the allottee of a site from the society. The plaintiffs have alleged that though they were in possession of the sites purchased by them, they learnt that the defendants 1 to 5 attempted to encroach upon their sites on the strength of certain deeds executed by the original owners of the land in Sy. No. 24/4 of Pattanagere Village, Kengeri Hobli. The land in Sy.No.24 as also the lands in other survey numbers were acquired for the sake of society which formed a layout and allotted the sites to its members. This being the :: 12 ::
position, the defendants cannot claim any right over the property on the strength of certain dubious deeds said to have been executed by the original owners. The defendants tried to trespass over the suit properties in order to disturb the settled possession of the plaintiffs and therefore they brought a suit against the defendants for permanent injunction. The plaintiffs filed applications for temporary injunction in their respective suits stating that in case temporary injunction was not granted pending disposal of the suits, the defendants would succeed in trespassing over the property and the very purpose of filing of the suit would be defeated.
5. In the statement of objections filed by defendants, it is stated that none of the plaintiffs is in possession of the sites involved in the suits and therefore none of them is entitled to claim :: 13 ::
an order of temporary injunction pending disposal of the suits. They have specifically contended that the Government acquired 58 acres 37 guntas of land comprised in Sy.Nos.17/1, 17/2, 20/1, 21, 23/1, 24/1, 24/3, 42/4, 48/2, 53/2 and 52/6 of Pattanagere village for the purpose of providing land to REMCO (BHEL) House Building Co-operative Society Limited. The acquisition in favour of BHEL Society and some other Housing Societies was challenged by the land owners by filing a writ petition which was allowed by this court. Then the Housing Societies approached the Supreme Court challenging the order in the writ petitions.
The Supreme Court, while dismissing the appeals directed that the land should be restored to the respective land owners whether or not they had challenged the acquisitions, and the land owners should refund the amounts received by them :: 14 ::
towards compensation. Accordingly in respect of the land involved in these suits, one Niranjana Murthy, the authorized representative of the land owner viz., Gowramma repaid the compensation to the Special Land Acquisition Officer in respect of acquisition of land measuring 1 Acre 28 guntas in Sy.No.24/4 and took back the possession of the land. To this effect, the Land Acquisition Officer issued an endorsement on 9.10.2006. It is stated further that the President of the REMCO Society executed an indemnity bond in favour of Government and received an amount of Rs.36,21,794/- deposited by the Society in connection with acquisition process. Thus the original owners were put in possession of the land.
5.1. In so far as the ratification deed and some other transactions that the plaintiffs refer to, it is stated that they are all fabricated :: 15 ::
documents for the purpose of making unlawful gain and denying title of the original owners.
They are unregistered and insufficiently stamped. These documents did not convey title to the Housing Society. In fact the original owners filed private complaint in the Court of Magistrate alleging fabrication and forgery of the documents and the Magistrate referred the matter to the police for investigation under section 156(3) of Cr.P.C. The police have filed charge sheet. This being the position the plaintiffs cannot make use of these documents for asserting the possession.
5.2. Another contention taken by the defendants is that original owner Gowramma sold an extent of 1 acre 4 guntas in favour of 3 r d defendant under registered sale deed dated 11.5.2006. He obtained the Katha in his name, got the land converted from agricultural to non :: 16 ::
agricultural purpose vide conversion order dated 1.2.2010 and then sold an extent of 23,906 sq.ft. in favour of Dr. Srinidhi under registered sale deed dated 10.12.2010. Thereafter Dr. Srinidhi paid the betterment charges and sold the lands measuring 9892 sq.ft. and 2932 sq.ft.
on 17.12.2012 in favour of T.S Anilkumar who formed the layout there and sold away the sites.
5.3. The defendants also referred to O.S.No.386/18 which was filed against the plaintiffs by the 5 t h defendant. It is stated that in the said suit, an exparte order of injunction was granted on 17.1.2018 against the plaintiffs and that the said order was communicated to them. Only after receiving the communication, the plaintiffs filed the present suits suppressing the order of injunction operating against them. Therefore the plaintiffs are not at all entitled to any kind of order of temporary injunction. With :: 17 ::
these contentions, the defendants pleaded for dismissing the application.
6. In order to grant temporary injunction in favour of the plaintiffs, the trial court has accepted the ratification deed executed by the land owners in favour of the Society. According to the trial court, the ratification transaction is an undisputed transaction. It has also referred to the orders passed by this Court in the Writ Petition No.13169/2006, W.P.2045/2007, W.P.21920/2010 and extracted the observations made by this Court in those writ petitions, especially the order in W.P.21920/2010. Then referring to the documents produced by either side, but without discussing the effect of those documents, the trial court has simply arrived at a conclusion that based on the documents, it can be stated that the plaintiffs were put in possession on the basis of the sale deeds and :: 18 ::
once they were put in possession, they cannot be evicted without due process of law. Therefore it is held that prima facie case has been made out. It is also held that balance of convenience lies in favour of the plaintiffs and that they would suffer hardship if temporary injunction is denied.
7. I have heard the arguments of Sri Sharath S. Gowda, learned counsel for the appellants and Sri K.B.S.Manian, learned counsel for the first respondent.
8. All the appeals have been filed under Order XLIII Rule 1 CPC, the scope of appeal of this nature is limited in the sense that the appellate court is required to examine whether the trial court has properly exercised the discretionary jurisdiction or not. If discretion is properly exercised, the appellate court cannot interfere with the order under challenge; the :: 19 ::
appellate court shall not interfere with the order if according to it another view is also possible to be taken. According to Sri K.B.S.Manian, the trial court has properly exercised the discretion, and to lay stress on this point of argument, he has placed reliance on the judgment of the Supreme Court in the case of WANDER LTD. AND ANOTHER VS. ANTOX INDIA P. LTD. [1990 (SUPP) SCC 727] where it is held;
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory :: 20 ::
injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph (196 0) 3 S CR 713: A IR 1 960 S C 115 6 :: 21 ::
... These principles are well
established, but as has been
observed by Viscount Simon in
Charles Osention & Co. v.
Jhanaton ( 1942 A C 130 ) the law as to
the reversal by a court of appeal
of an order made by a judge below
in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate judgment does not seem to defer to this principle".
9. Here is a case where I find that the trial court has not reached proper conclusion as to possession over the properties in question as on the date of suits. It may have stated that the documents produced by the plaintiffs disclose that the plaintiffs were put in possession on the basis of sale deeds, but such a conclusion, only :: 22 ::
shows perfunctory approach; there is no assessment of materials produced by either side parties; and for this reason, remand jurisdiction can be invoked, but I forbear from doing so as it only gives rise to second round of appeals. So it is better to assess the grounds urged in these appeals.
10. When the plaintiffs filed the suit, they sought the relief of permanent injunction only. Later they amended the plaint claiming the relief of mandatory injunction directing the defendants to demolish the construction raised by them in the suit properties. The plaintiffs have produced sale deeds, Khata endorsements issued in their names and the possession certificates issued by the society. Indeed the sale deed recite that the plaintiffs were put in possession of the properties. But their actual possession is disputed by the defendants. They refer to :: 23 ::
certain past events relating to acquisition of lands in favour of society and the annulment of acquisition by this court in the writ petitions and confirmation of the said order by the Supreme Court. These proceedings are not disputed by the plaintiffs, but what they assert is, after the Supreme Court confirmed the order of this court in the writ petitions, the original land owners entered into private transaction with the society and executed ratification cum confirmation deeds and thus all the pieces of lands whose acquisition was set-aside, continued to remain in the possession of the society. Consequent to execution of sale deeds in favour of the members of the society, they took over possession.
11. Sri Sharath S. Gowda, learned counsel for the appellants argued that all the transactions in the nature of ratification cum confirmation deeds were void, and that no land :: 24 ::
owner executed such a document. The documents were created by the management of the society and no sanctity can be attached to those transactions. He submitted that the documents clearly disclose that the original land owners returned the compensation amount to the Land Acquisition Officer who in turn delivered back the possession of the lands to the land owners. These being undisputed facts, the plaintiffs cannot claim to be in possession of the lands based on sale deeds and Khata Certificate.
12. The argument of Sri K.B.S.Manian was, in spite of acquisition being quashed, the possession of the land remained with the society. He submitted that the agreements that the land owners had executed prior to acquisition of land remained in force as they had not been cancelled. The society was put in possession of the land based on the prior agreements. Then :: 25 ::
after quashing of acquisition, the land owners received further consideration and executed ratification cum confirmation deeds, which though not registered, can be acted upon for the collateral purpose of establishing possession. The ratification cum confirmation deed was a valid document executed by the land owners. In this regard he argued that the concerned City Municipal Council would not have granted khata in the name of purchasers from the society unless the transaction of ratification deed was valid and genuine. He also submitted that in O.S.17094/2004, the ratification deed was acted upon and therefore he argued that the possession of the suit properties was very much with the plaintiffs on the date of suit. He referred to some decisions of this court in some other MFAs, involving similar issues and urged for applying them.
:: 26 ::
13. But Sri Sharath S Gowda submitted that this court has already taken a view in MFA 8988/2017 not to grant injunction in the facts and circumstances akin to the case on hand and hence the judgment in MFA 8988/2017 is to be followed.
14. I have already observed that the plaintiffs have produced sale deeds standing in their names. All the suits are founded on a common premise, therefore suffice it to examine documents produced in one of the suits. In O.S.1452/2018, the plaintiff is G. Santhiram. Copy of the sale deed dated 14.10.1992 shows that REMCO (BHEL) House Building Cooperative Society Limited sold site No.108 in the layout said to have been formed by it to J.S. Basavaraj. Then on 14.09.1995 J.S. Basavaraj sold the said site to J. Rajendra Prasad. On 26.08.2002, J.Rajendra Prasad sold the very same site to :: 27 ::
G.Santhiram, the plaintiff. There are other documents like, khata endorsement, possession certificate, encumbrance certificate etc. The main documents are the sale deeds. It is very important to note here that the plaintiffs admit quashing of acquisition in the writ petitions. All the writ petitions were allowed on 18.06.1991 and the Supreme Court dismissed the appeals preferred challenging the order in the writ petitions. While dismissing the appeals, the Hon'ble Supreme Court directed that the possession of the lands must be restored to the land owners and that the land owners must refund the amounts received by them towards compensation.
15. Perusal of the documents produced by the defendants shows that one Niranjana Murthy, representing the owner of land in Sy.No.24/4 of Pattanagere returned the compensation amount :: 28 ::
to the Special Land Acquisition Officer. This becomes evident from a letter dated 09.10.2006 signed by the Special Land Acquisition Officer. The indemnity bond dated 23.08.2004 shows that the society received back a sum of Rs.36,21,794/- which was deposited by it with the Land Acquisition Officer. There are two more letters that have significance in the context of taking a decision as to possession. The letter dated 19.01.2004 written in the letter head of the society and addressed to the Special Land Acquisition Officer shows that after the Supreme Court gave its judgment, the Society made every effort for a period of 8 years to retain the ownership of the land, and since the Land Acquisition Officer did not respond to the request of the society positively, it requested for refunding the amount deposited with the Land Acquisition Officer in connection with acquisition.
:: 29 ::
One more letter dated 09.10.20.. (year not clearly printed) addressed to the Principal Secretary of the Department of Revenue, Govt.
of Karnataka very clearly indicates possession and ownership of the lands being restored to the land owners.
16. Now if the sale deeds on which the plaintiffs have founded their case are examined in the light of the documents produced by the defendants, it can be said that the society executed the sale deeds without having any kind of right, title or interest on the lands in question. So far as possession is concerned, it is doubtful that the possession was delivered by the society to its purchasers. When the possession of the lands was delivered back to the land owners, unless, it is shown that the land owners again put the society in possession, it is not possible to infer that the plaintiffs got the possession of :: 30 ::
their respective sites based on the sale deeds. But the plaintiffs refer to confirmation cum ratification deed to assert possession. An occasion to examine the validity of this kind of a transaction arose in MFA No.8988/2017, it was observed by me that:
12. When the Supreme Court upheld the judgment of this court quashing the acquisition proceedings and directed the government to deliver back the possession of the acquired land to the land owners, obviously a question arises even at the stage of deciding an application for temporary injunction, as to what sanctity can be attached to the transactions that took place subsequently which appear to be in utter disobedience of the spirit of the judgment of the Supreme Court. Till the government redelivered the possession of the acquired land to the land owners, they should not have entered into :: 31 ::
transactions like execution of confirmation and ratification deed in the year 2000. If they have really entered into such transactions, they only show their treacherous and deceptive acts. The defendant's counsel has produced a document to show that Niranjana Murthy returned the compensation amount as per the judgment of the Supreme Court on 31.08.2006 and thereafter the special land acquisition officer delivered the possession of the acquired land to him 10.10.2006. Therefore any transaction that might have taken place till 10.10.2006 cannot be given so much importance to hold that by virtue of the confirmation and ratification deed dated 23.02.2000 and the compromise in O.S.No.4601/2000, the plaintiff's got back possession of the entire acquired land including the suit property.
:: 32 ::
17. Therefore, the plaintiffs cannot rely upon the confirmation and ratification deed. Sri K.B.S.Manian has relied upon a hoard of decisions in support of his arguments that even unregistered documents can be received in evidence for the collateral purpose of protecting possession. Section 49 of the Registration Act permits unregistered documents being considered for collateral purpose, and therefore there is no need to refer to all the decisions that are cited by Sri K.B.S.Manian in this regard. Moreover, according to the defendants, the very execution of confirmation cum ratification deed is disputed, and it appears charge sheet has been filed by the police for offences of forgery and fabrication of documents. It may be apt to refer here the observation made by the coordinate bench in MFA No.722/2021 in regard to ratification deed. It is observed that:
:: 33 ::
14. In so far as reliance being placed on the alleged ratification deed dated 10.11.2000 by the plaintiff is concerned, in view of the fact that the said document is seriously disputed by the defendants, coupled with the fact that the same is an unregistered document, which does not contain the signature of the executants on all the pages, the execution, genuineness and validity of the said document would necessarily have to be decided only after a full fledged trial and at this stage, no reliance can be placed upon the said document by the plaintiff in support of his claim for temporary injunction.........".
18. In view of the above observation, reliability of the confirmation and ratification deed is doubtful, I am afraid, it helps plaintiffs to assert possession.
:: 34 ::
19. Then Sri K.B.S.Manian tries to garner support for his argument from the decision rendered by me in MFA No.3775/2019 and connected appeals, (Smt. Shruti S. Kumar Vs. Srinivasa Murthy and another), MFA No.8499/2018 (A. Rangaswamy Vs. Shivaraj and Others) and Review Petition No.331/2019 (Shivaraj and Another Vs A. Rangaswamy and Others).
20. It is true that in those MFAs, the parties were directed to maintain status quo, but those orders were based on factual position therein. The case of Shruthi S. Kumar pertains to acquisition of lands of another village for the benefit of Gavipuram Extension House Building Co-operative Society, and it was found that even after quashing of acquisition proceedings, the possession remained with the society and the land owners failed to produce any document :: 35 ::
indicating redelivery of possession to them. Review Petition arose out of judgment in MFA No.8499/2018. Acquisition here was in favour of REMCO Society, but as the facts therein disclosed, a suit for possession was filed to recover a small piece of land measuring 7 x 5 feet, and that status quo was ordered to be maintained having regard to the act of interference was still at the threshold. Therefore the decision was in the light of factual position found therein.
21. Sri K.B.S.Manian argued that the plaintiffs' settled possession, though not title, over their sites is forthcoming and therefore the impugned order for preservation of suit properties is to be sustained. He has referred to some decided cases on this aspect. All those decisions need not be adverted to here as it is a settled principle of law that possession needs to :: 36 ::
be protected from any attempt of illegal dispossession. As discussed above, the documents produced by the plaintiffs do not disclose their possession on the date of suit. That apart, from the averments made in the plaint, an inference may be drawn that the plaintiffs were very much aware that they were not in possession.
22. In para 19 of the plaint (O.S.No.1452/2018) it is stated that the defendants are attempting to trespass into suit property to disturb the settled possession of the plaintiffs, that on 3 r d January, 2018 they made preparations for sinking a bore well for the purpose of commencing construction and that the trespass was recent, isolated, incomplete and transient. Then the plaintiffs made an application for amending the plaint to plead further that the first defendant, in order to cover :: 37 ::
up his act of trespass and encroachment into the suit property, filed a suit, O.S.No.386/2018 on 12 t h January, 2018. The plaintiff in O.S.No.1452/2018 also sought additional relief of mandatory injunction to direct the defendants to remove all constructions put up on the suit property.
23. Referring to amendment if Sharath S. Gowda argued that this very amendment was enough to draw an inference that the plaintiffs were not in possession; and because of order of temporary injunction granted in O.S.No.386/2018 against the plaintiffs (defendants in O.S.No.386/2018), the finding of the trial court in the case on hand that the plaintiffs were in possession on the date of suit was wrong. But Sri K.B.S.Manian submitted that the amendment became necessary in view of subsequent development, it would not mean that :: 38 ::
the plaintiffs were not in possession, and that the plaintiffs just complained of acts of interference. He submitted that though exparte temporary injunction was granted in O.S.No.386/2018, the applications for temporary injunction filed in the present suits were decided after hearing both side parties and therefore the order in O.S.No.386/2018 recedes to background. It was also his argument that the order of temporary injunction granted in favour of plaintiffs herein would operate as res-judicata if at all a contrary opinion is to be expressed in view of exparte order granted in O.S.No.386/2018.
24. As regards this argument, it may be opined that since O.S.No.386/2018 and the present suits are in respect of same properties, certainly as argued by Sri K.B.S.Manian, the exparte order of temporary injunction granted in :: 39 ::
O.S.No.386/2018 loses its significance in view of impugned orders which were passed after hearing both side parties. But the impugned orders do not operate as res-judicata, for they have been questioned in these appeals.
25. So far as the impact of amendment is concerned, it is difficult to accept the argument of Sri K.B.S.Manian that amendment is just supplementary to what is pleaded in para 19 of the plaint. Going by the plaint averments, if it is assumed that the first act of interference was on 03.01.2018 and thereby it was in the initial stage, the present suits having been filed on 22.02.2018, it is highly impossible to believe that anybody would keep quite for more than a month seeing invasion on the property rights. Therefore the possible inference that can be drawn for the limited purpose at the interlocutory stage is that probably the plaintiffs :: 40 ::
could have thought of filing separate suits to overcome the order in O.S.No.386/2018. Instead, they could have applied for vacating the ex-parte order of temporary injunction. In the plaint in O.S.No.386/2018, it is stated that there was interference by the plaintiffs herein on 07.01.2018 and by that time bore well had already been sunk and that the construction work was in progress. Therefore it may be stated that the plaintiffs were not in possession on the date of filing of the suits.
26. Reference is also made to orders passed in W.P.21920/2010 and connected writ petitions as also to the orders in the writ appeals filed against the order in the writ petitions. Sri Sharath S. Gowda and Sri K.B.S.Manian laid much emphasis on certain observations made therein. I do not think the observations have any relevance here, for the writ petitions have :: 41 ::
emanated from revenue proceedings in the matter of acceptance of khata in the name of allottees from the society. The confirmation cum ratification deeds and the compromise decree in a suit emerged for discussion. It was held that the parties should avail such remedies as were available to them to establish their right, title or interest. Therefore I do not think that the plaintiffs can make any attempt to establish their possession based on khatas or the order in Writ Petitions and Writ Appeals.
27. The plaintiffs also refer to a judgment in O.S.No.3321/2011 which was filed by the plaintiff in O.S.No.1452/2018 against R.Manjunath, the third defendant. But it is contended by the defendants 1 and 5 that by the time suit was filed in the year 2011, the third defendant had already sold the land to an extent of 23906 sq. ft. in favour of Dr. Srinidhi, the :: 42 ::
fourth defendant on 10.12.2010. If this is true, hardly the judgment in O.S.No.3321/2011 has any effect on other defendants who were not parties in O.S.No.3321/2011.
28. Therefore with this discussion, it may be concluded that possession of the plaintiffs over the suit properties as on the date of filing of suits was not made out. The plaintiffs have thus failed to show existence of prima facie case in their favour. As prima facie case is not made out, there is no need to discuss the two other requirements, i.e., balance of convenience and comparative hardship.
29. Sri Sharath S. Gowda kept on submitting that the defendants will not claim equity in case the plaintiffs succeed in their suits. The defendants have undertaken construction work being in possession. Merely because the :: 43 ::
plaintiffs have sought mandatory injunction, they do not get right to stop construction. In light of the premise of the suits, even to obtain a decree for mandatory injunction, they must establish their right over the property. In this view, I am of the opinion that all the appeals deserve to be allowed and hence the following order.
ORDER All the appeals are allowed.
The order dated 15.07.2019 in
O.S.No.1452/2018, O.S.No.1455/2018,
O.S.No.1457/2018 and O.S.
No.1459/2018 on I.A.No.2 (in all the suits) filed under Order 39 Rules 1 and 2 CPC is set aside. The applications are dismissed and the temporary injunction :: 44 ::
granted in favour of the plaintiffs in all the suits is vacated.
Parties to bear the costs.
Sd/-
JUDGE Kmv/-