Karnataka High Court
Sri Nagaraj R Nagarabhavi vs Sri Sarvotham Prabhu on 28 October, 2022
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
-1-
MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 1811 OF 2022 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 1810 OF 2022 (CPC)
BETWEEN:
1. SRI NAGARAJ R NAGARABHAVI
S/O LATE S RAMAIAH
AGED ABOUT 34 YEARS
RESIDING AT NO.15/4 ISEC MAIN ROAD
NAGARBHAVI VILLAGE
BENGALURU-560072.
...APPELLANT
(COMMON IN BOTH APPEALS)
(BY SRI. SHANKAR G.,ADVOCATE)
AND:
1. SRI SARVOTHAM PRABHU
S/O LATE RADHAKRISHNA PRABHU
AGED ABOUT 51 YEARS
RESIDING AT NO.208 2ND MAIN
TEACHERS LAYOUT
NAGARBHAVI
BENGALURU-560072.
Digitally signed by
GURURAJ D
Location: High 2. SRI K S BABU
Court Of Karnataka
S/O M KRISHNAMURTHY
AGED ABOUT 64 YEARS
RESIDING AT NO.929
NAGALAYA 4TH CROSS
16TH MAIN 2ND STAGE
B T M LAYOUT
BENGALURU-560076.
-2-
MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022
3. SMT B A VEDAMMA
W/O SRI M A SAMPATH
AGED ABOUT 83 YEARS
RESIDING AT NO.722 3RD STAGE
4TH BLOCK WEST OF CHORD ROAD
BENGALURU-560079.
4. KENDRA UPADHYAYARA SANGHA
NO.24 2ND FLOOR
SUBBARAMA CETTY ROAD
BASAVANAGUDI
BENGALURU-560004
REP BY ITS SECRETARY
5. SRI KARIYAPPA
S/O LATE KARIYANNA
AGED ABOUT 72 YEARS
RESIDING AT NO.34
ISEC MAIN ROAD
NAGARBHAVI
BENGALURU-560072.
...RESPONDENTS
(COMMON IN BOTH APPEALS)
(BY SRI. MALLINATH S MAKA, ADVOCATE FOR C/R1)
THESE MFAs ARE FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT.01.02.2022 PASSED ON IA NO.1/2021 IN
O.S.NO.6238/2021 ON THE FILE OF THE XXXIV ADDITIONAL CITY
CIVIL JUDGE, BENGALURU CITY, (CCH-35), DISMISSING IA
NO.1/2021 AND I.N.2 FILED U/O.39 RULE 1 AND 2 R/W SECTION
151 OF CPC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022
JUDGMENT
Though, matters are listed for admission, with consent of learned counsel for parties, they are taken up for final disposal.
2. Challenging orders dated 01.02.2022 passed by XXXIV Additional City Civil and Sessions Judge, Bengaluru City (CCH-
35) in O.S.no.6238/2021 on I.A.no.1/2021 and I.A.no.2/2021 filed under Order XXXIX Rule 1 and 2 of CPC, these two appeals are filed. MFA.no.1810/2022 is filed against order on I.A.no.2/2021, while MFA.no.1811/2022 is filed aggrieved by order passed on I.A.no.1/2021.
3. Appellant herein was plaintiff, while respondents herein were defendants respectively. For sake of convenience, they shall hereinafter be referred to as such in this order.
4. O.S.no.6238/2021 was filed seeking for judgment and decree declaring plaintiff as absolute owner of suit property; to direct defendant no.1 to deliver vacant possession of suit property by demolishing structures if any on it; to declare registered lease-cum-sale agreement dated 29.06.1989, registered sale deeds dated 27.03.2007 and sale deed dated 08.07.2020 as null and void and not binding on -4- MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 plaintiff etc. Property bearing site no.144, Nagarabhavi 1st Stage, Bengaluru, BBMP Ward no.128, measuring east to west 9.14mts. and north to south 12.2mts. in all 111.5sq.mts. formed in Sy.no.1/5 of Nagarabhavi Village, Yeshwanthpura Hobli, Bengaluru North Taluk, measuring 02 acres 36 guntas was described as suit property.
5. In said suit, plaintiff filed I.As.no.1/2021 was for temporary injunction restraining defendant no.1 etc., from alienating suit property during pendency of suit, while I.A. no 2/2021 was for temporary injunction against defendant no.1 from putting up any construction on suit property. Said applications were opposed by defendants by filing objections and written statement.
6. On consideration, trial Court passed impugned order dismissing both applications. Assailing said orders, these appeals are filed.
7. Sri G.Shankar, learned counsel for appellant submitted that plaintiff was owner of suit property, which was originally part of Sy.no.1/2 of Nagarabhavi village, totally measuring 02 acres 36 guntas belonging to Sri Ramaiah @ -5- MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 Kunta Ramaiah. Said land was sold to his daughter - Smt.Gangamma under registered sale deed dated 13.01.1931. Thereafter, it was split into Sy.no.1/5, measuring 02 Acres 27 guntas and Sy.no.1/7, measuring 21 guntas and suit property was part of Sy.no.1/5. It was stated that after its purchase, Smt.Gangamma executed conditional registered mortgage deed dated 09.10.1947 in favour of Sri. Siddaramaiah with provision for redemption within one year and providing for recovery of redemption money by disposing property. It was stated that as Smt.Gangamma failed to redeem mortgage, Sri.Siddaramaiah virtually became its owner.
8. It was further stated that despite same, Smt.Gangamma executed registered sale deed dated 19.05.1966 by selling same to Smt. Thimmakka W/o Siddaramaiah. During her life time, Thimmakka executed registered Will dated 15.09.1967, bequeathing entire land in favour of Ramaiah, Siddappa and Nanjappa sons of Siddaramaiah. It was stated that Siddaramaiah had three wives namely, Smt.Kengamma who died issueless, Smt.Thimmakka who had one daughter and Smt.Lakkamma who had three sons. Since Smt.Thimmakka had no male issues, she executed -6- MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 Will dated 15.09.1967 bequeathing land in favour of sons of Sri. Siddaramaiah. Thereafter, she died on 27.06.1973. Hence, Sriyuths Ramaiah, Siddappa and Nanjappa became absolute owners of suit property and their names were entered in revenue records. On 21.12.1981, they entered into agreement with defendant no.4 for development of said property.
9. It was further submitted that meanwhile, Smt.Gangamma filed O.S.no.2443/1984 for declaration and permanent injunction against three sons of Sri. Siddaramaiah and defendant no.4. In said suit, sale deed dated 19.05.1966 executed by Smt.Gangamma to Smt.Thimmakka was denied. At this point, defendant no.4 appears to have executed General Power of Attorney on 20.01.1985 to conduct case on behalf of Sriyuths Ramaiah, Siddappa and Nanjappa, as they were illiterates. It was alleged that misusing their ignorance, defendant no.4 began creating documents contrary to their interest and claimed itself to be owner.
10. It was further stated that though O.S.no.2443/1984 was dismissed on merits and challenged in RFA.no.451/2002 -7- MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 filed by defendant no.4, it was remanded back to trial Court virtually on consent of counsel for defendants no.4 and 5.
11. After remand, O.S.no.2443/1984 was decreed in favour of defendant no.5 declaring him as owner. Once again, defendant no.4 filed RFA no.671/2005 along with Sryiyuths Ramaiah, Siddappa and Nanjappa taking advantage of their innocence by engaging common advocate. During pendency of such appeal, defendants no.4 and 5 filed compromise petition for recording partial compromise, without notice to Sriyuths Ramaiah, Siddappa and Nanjappa. Said compromise petition was referred to trial Court. Defendants no.4 and 5 filed one more application before trial Court for partial compromise, which was also allowed without opportunity to Sriyuths Ramaiah, Siddappa and Nanjappa and sent back to this Court.
12. At this point, said Ramaiah, Siddappa and Nanjappa came to know about fraud played by defendants no.4 and 5. Hence they filed applications to recall/review orders dated 07.03.2007 passed on I.A.no.3/2007 and 29.01.2007 passed on I.A.no.4/2007. After considering said applications, this Court by order dated 23.08.2007 held that compromise would not -8- MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 bind them and further ordered that any construction put up on subject matter of compromise would be subject to result of appeal. Subsequently, they filed application against defendants no.4 and 5 for allowing appeal to extent of 34 sites. On 17.02.2010, this Court allowed application and held that O.S.no.2443/1984 filed by defendant no.5 insofar as relating to sites described in I.A.no.2/2008 as dismissed. Consequently, appeal was confined only to remaining portion of schedule property. It was further submitted that said order dated 17.02.2010 was not challenged. It was submitted that present suit property i.e. site no.144 was item no.11 out of 34 sites declared to be belonging to sons of Siddaramaiah in RFA.no.671/2005.
13. It was submitted that in view of above mentioned facts, assumption of trial Court that it was possible for this Court in RFA.no.671/2005, to uphold compromise decree in O.S.no.2443/1984 and its conclusion that until disposal of said appeal, it could not be held that sons of Siddaramaiah were owners of site no.144, would be perverse understanding of orders, especially as suit was held to be dismissed insofar as 34 -9- MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 sites mentioned in I.A.no.2. Therefore, rejection of I.As.no.1 and 2 were unsustainable and called for interference.
14. On other hand, Sri Mallinath S. Maka, learned counsel appearing for defendant no.1 supported order and opposed appeal. At outset, it was submitted that defendant no.1 had already completed construction and performed Gruha Pravesha, therefore, application for temporary injunction was rendered infructuous. It was further submitted that plaintiffs were in any case strangers to suit property and without establishing ownership of his father Ramaiah or his siblings, they could not claim any interest in suit property. It was submitted that land bearing Sy.no.1/5 measuring 02 acres 36 guntas stood in name of defendant no.4, so also land bearing Sy.no.1/7 measuring 21 guntas. Record of rights clearly depicted that it was one Sri. Kariyappa, who transferred said lands in name of defendant no.4. It was submitted that lease- cum-sale agreement dated 29.06.1989 executed by defendant no.4 in favour of defendant no.3 and possession certificate dated 01.03.1993 indicated that plaintiffs were not having any right or possession in respect of site no.144 - suit property. It was further submitted that layout was approved by Bangalore
- 10 -
MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 Development Authority and khata patra dated 19.04.1994 was issued to defendant no.3. Thereafter BBMP issued khata certificate on 03.09.2003. Subsequently on 27.03.2007, defendant no.4 executed absolute sale deed in favour of defendant no.3 and in-turn she sold it to defendant no.2 on same day. Thereafter on 08.07.2020, defendant no.2 sold suit property in favour of defendant no.1. Immediately after purchase, defendant no.1 got his name entered in revenue records. BBMP issued khata certificate on 02.11.2020. Subsequently, defendant no.1 obtained permission for construction of residential house by granting building licence dated 16.04.2021 by borrowing loan of Rs.70,00,000/-, from State Bank of India, defendant no.1 had constructed building and occupied same. It was submitted that in view of above facts, application for temporary injunction filed by plaintiffs was rendered infructuous and in any case was untenable.
15. It was submitted that in view of above mentioned facts, neither prima facie case, nor balance of convenience lie in favour of plaintiffs. On other hand, since defendant no.1 had purchased suit property for valuable consideration, obtained building permission and thereafter put up construction by
- 11 -
MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 borrowing loan from Bank, grave irreparable loss and injury would be caused to defendant no.1. Hence, trial Court had rightly rejected application.
16. In response to narration of facts regarding flow of title it was submitted that O.S.no.2443/1984 was filed by Smt.Gangamma and others including Kariyappa against Ramaiah and others including defendant no.4, on 16.07.1984. After remand, on 24.02.2005, said suit was decreed and plaintiffs were declared as absolute owners. Even though, RFA.no.671/2005 was filed, defendant no.4 and defendant no.5 together had entered into compromise in respect of portion of land, which included suit property. Since 34 sites were deleted, these sites stood deleted from purview of appeal. Consequently, title of defendant no.1 was rendered safe from attack by plaintiffs. On above grounds learned counsel sought for dismissal of appeal.
17. Heard learned counsel, perused impugned order and record.
18. From above submissions, point that arises for consideration is:
- 12 -
MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 "Whether order passed by trial Court on I.A.nos.1/2021 and 2/2021 filed under Order XXXIX Rule 1 and 2 of CPC, is sustainable?"
19. In a suit for declaration of title and possession, applications were filed for temporary injunction to restrain defendant no.1 from alienating suit property and putting up any construction.
20. While, plaintiffs contend that by virtue of order dated 17.02.2010 passed in RFA no.671/2005, O.S.no.2443/1984 was dismissed insofar as 34 sites named in schedule to I.A.no.2 therein. Plaintiffs also assert that suit property was item no.11 in said schedule and therefore, declaration/compromise in said proceedings, based on which defendants were substantiating their claims stood discharged; and therefore, assumption of trial Court that it was possible for this Court to uphold compromise, whereupon rights of defendants in respect of suit property would revive, would be perverse appreciation, calling for interference.
21. On other hand, defendants contend that compromise recorded in pending regular first appeal, coupled with order
- 13 -
MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 dated 17.02.2010, whereunder 34 sites were held to be outside scope of appeal would substantiate their claim under compromise. Hence, impugned order would be justified.
22. On perusal of impugned order, it is seen that basis for passing impugned order was pendency of RFA no.671/2005 and possibility of compromise between defendants no.4 and 5 being upheld.
23. In regular first appeal, on 23.08.2007, this Court while allowing IAs no.III & IV/2007 filed for review of orders dated 07.03.2007 and 29.01.2007 respectively recording compromise, held that said compromise would not bind applicants/appellants no.1 to 3, but shall be subject to result of appeal. Thereafter on 17.02.2010, while considering I.A.no.2/2008, it was held that suit filed by plaintiff insofar as it relates to sites described in I.A.no.2/2008 was dismissed and appeal to that extent was allowed. Scope of appeal was expressly confined to remaining portion of suit schedule properties. It is specifically asserted by plaintiffs that suit property herein namely, site no.144 was item no.11 of schedule to I.A.no.2/2008 in RFA no.671/2005. Copy of application filed
- 14 -
MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 herein would substantiate same. Therefore, very basis for rejection of applications by trial Court would be perverse. Point for consideration is answered in negative.
24. However, during interregnum, defendant no.1 has completed construction of house in suit property and has occupied same. He has also averred in counter affidavit filed to I.A.no.1/2022 in this appeal stated that said house was constructed by borrowing medium term loan of Rs.70,00,000/- from State Bank of India. He has further stated that deed of mortgage by deposit of title deeds is executed in favour of Bank. Therefore, he has no intention to alienate suit property.
In view of above circumstances, I pass following :
ORDER MFA No.1811/2020 is allowed directing defendant not to alienate suit schedule property in any manner till disposal of suit.
MFA No.1810/2020 is disposed of with observation that construction put up by defendant would be subject to result of suit and defendant shall not claim equities.
- 15 -
MFA No. 1811 of 2022 C/W MFA No. 1810 of 2022 Both parties are directed to co-operate for early disposal of suit.
Trial is directed to expedite disposal of suit without granting unnecessary adjournments.
Sd/-
JUDGE GRD/Psg*