Karnataka High Court
Sri.T.Narayana vs Kanyakumari Builders Pvt Ltd. on 24 June, 2014
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 24th day of June, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Miscellaneous First Appeal 10054 / 2013 (CPC)
Between
Sri T Narayana, 52 yrs
S/o Thammaiah
R/a Kariyamana Agrahara
Bellanduru Post, Bangalore Appellant
(By Sri Jayakumar S patil, Sr.Adv.
For Sri Bhat Ramachandra Ganapathi, Adv.)
And
1 Kanyakumari Builders Pvt Ltd
By its Director - Vijay B Raheja
R O at: Raheja Chambers
Linking Road & Main Avenue
Santacruz (W), Mumbai
2 M S Ramaiah Developers &
Builders Pvt Ltd
# D4, Unity Building, J C Road
Bangalore - by its Managing Director
M R Seetharam S/o late M S Ramaiah
3 M S Seetharam S/o late M S Ramaiah
R/a # 8, Gokula House
2
Gokula Extension, M S R Road
Bangalore 54 Respondents
(By Sri Viswanatha Setty V, Adv. For R3)
First Appeal is filed under S.173(1) of the Motor Vehicles Act
praying to set aside the order dated 19.11.2013 on IA dated 21.11.2008
in OS 7765/2008 by the XXXIX Addl. City Civil & Sessions Judge,
Bangalore.
First Appeal coming on for Admission this day, Court delivered
the following:
JUDGMENT
Aggrieved by the order dated 19.11.2013 passed on the IAs filed in OS 7765/2008 by the XXXIX Addl. City Civil & Sessions Judge, Bangalore plaintiff is before this Court in appeal.
It appears plaintiff filed a suit OS 7765/2008 for permanent injunction. However, apprehending encroachment and also further development, IA came to be filed seeking temporary injunction to restrain defendants from in any way interfering with the peaceful possession of the plaintiff over the suit schedule property. According to the plaintiff, suit schedule property is a vacant land in Sy.No.14/P7 of 3 Kadubeesanahalli to the extent of 17.8 acres. Initially according to the plaintiff, Sy.No.14 situate in the said village of Bangalore East Taluk measured 2.30 acres and belonged to one Shanbogh Narayanappa and Narayanappa sold 1.20 acres to one Muniswamappa s/o Voddara Ramaiah during uring January 1945 and Muniswamappa also purchased the remaining extent on 18.5.1949 and thus, became the absolute owner of the entire extent of 2.30 acres and claimed to be in possession of the same. After the death of Muniswamappa, his two sons Venkataswamy and Ramaiah got 2.30 acres partitioned during March 1985 i.e., each of them got 1.15 acres each. This Ramaiah sold 1.15 acres in favour of T Krishnappa S/o Thammana during September 1994 which came to be partitioned between plaintiff and his brother T Krishnappa as per the partition deed 24.8. 2000.
It is the specific case of the plaintiff that he has been allotted 25 guntas in Sy.No.14 as per the partition deed, out of which 10 guntas came to be acquired by the BDA for formation of Ring Road leaving 1.00 acre for him and his brother out of which his brother Krishnappa 4 was allotted 5 guntas and another brother - T Venkatesh is allotted 17.8 guntas and plaintiff is allotted 17.8 guntas in Sy.No.14. Land in Sy.No.14 was subjected to resurvey and phoding was done. According to him, this became Sy.No.14/P6 and 14/P7 respectively. The extent of 17.8 guntas is the subject matter of the suit i.e., Sy.No. 14/P7.
The case of the plaintiff is, he is in peaceful possession of the suit schedule property since 2000 August, as per the partition deed and revenue records and also obtained necessary conversion, etc. He was the absolute owner in actual possession of agricultural land - Sy.No.14/P6 situate at Kadubeesanahalli Village, Bangalore East Taluk measuring about 15 guntas. He acquired the same from Muniyamma under registered sale deed during 1996. It is his case that, his family members have executed an agreement of sale in respect of Sy.No.14/P6 measuring 15 guntas in favour of one M R Seetharam residing at Gokul Extension, Bangalore and also executed a general power of attorney on 31.5.2003 in favour of Radhakrishna who is the nominee of M R Seetharam and the said Radhakrishna executed a development agreement dated 10.10.2005 5 regarding Sy.No.14/P6 in favour of the defendant. It is averred that defendant who is in no way concerned with the suit schedule property viz., 14/P7, on 16.11.2008 in the morning around 8.00 a.m, .came on the suit schedule property with rowdy elements and committed trespass and damaged the structures. On approaching the police, they advised to approach the civil court. Accordingly they sought for temporary injunction while the suit is filed for permanent injunction.
Matter was contested by defendants 2 and 3 by filing written statement. Defendants also contended that the stand of the plaintiff that he is the absolute owner of 15 guntas of agricultural land in Sy.No.14 i.e., 14/P7 which is adjoining the land acquired by the 2nd defendant as Developer and he is interested to acquire the said property also. Plaintiff and his family members approached the 2nd defendant and others to sell the suit schedule property measuring 15 guntas for a consideration of Rs.49,00,500/- for which the 2nd defendant also agreed. It is also admitted that there is a power of attorney as well as an agreement to sell. It is also the case of the defendants that conversion was obtained in 6 respect of 15 guntas of the suit schedule property from the Special Deputy Commissioner during October 2004. After that, the general power of attorney holder of the plaintiff and his family members have executed a registered sale deed during 2007 in favour of 2nd defendant as such , 2nd defendant became the absolute owner and is in possession of the property since the date of the sale deed and is also paying taxes to the BBMP regularly. It is also contended that the suit schedule property is also amalgamated with another 20 acres of land belonging to the 2nd defendant and a compound wall is put up and also a entry gate is there to the suit property from the southern side abutting the ring road. It is further contended that the conversion order is not in connection with the property in Sy.No.14 alleged to have been purchased by the plaintiff from one Muniyamma. It is stated, defendant with an intention to develop the property has initially entered into a joint development agreement with the 1st defendant during 2005 but since the 1st defendant did not comply with the terms and conditions as such, 2nd defendant once again entered into a fresh agreement during 2008. It is stated, plaintiff is unnecessarily interfering with the possession of the defendants and 7 harassing them in one or the other way and even trying to demolish the existing compound wall which is prevented by the 2nd defendant. It is stated, plaintiff is doing illegal activities and causing heavy loss to the 2nd defendant. In this background, on the different interlocutory applications filed, the trial court while considering all those applications, has passed an order vacating the status quo granted earlier. Hence, this appeal.
Heard the counsel for the respective parties.
According to the Sr. Counsel representing the plaintiff/appellant, the power of attorney executed in favour of one Radhakrishna depicts the property which is said to have been purchased by the plaintiff from one Muniyamma as Sy.No.14/P6 and it is only the document to be relied upon for the subsequent transactions. The intention of the plaintiff was only to have Sy.No.14/P6 and not any other property or Sy.No.14/P7 and also having taken me through the agreement and also the sale deed, tried to argue that even the intention of the plaintiff is only to sell 8 Sy.No.14/P6 and not Sy.No.14/P7 and accordingly, taking me through the document - sale deed he contended that there is a striking off of Sy.No.14/P7 and shown as 14/P6. Accordingly, it is contended that the property intended to be sold even as per the power of attorney, is only 14/P6 and not 14/P7. Having taken me through various documents, he contended that the order of statusquo earlier granted ought to have been maintained but without reasoning, trial court has rejected the IA and accordingly sought to allow the appeal.
Per contra, counsel for the respondent submitted, all the documents viz., agreement to sell, power of attorney and even the sale deed depict, as per the schedule and boundary it is only Sy.No.14/P7 and not Sy.No.14/P6. A mistake crept in by over sight in the power of attorney while drafting. However, on looking to all the three documents, it is clear that it is only Sy.No.14/P7. He also tried to demonstrate that in the original deed there is clear mention of Sy.No.14/P7 and not 14/P6 and accordingly contended that as per the law laid down by the Apex Court in the case of Subhaga & Ors Vs Shobha & Ors - 2006 (5) SCC 9 466, boundaries prevail over any other contention with regard to identification of the property is concerned. In the said case, the Apex Court held that the property can be identified either by boundaries or any other specific description. Once the property has been identified by boundaries, if there is any discrepancy normally boundary should prevail, it is not necessary to survey all adjacent lands to find out whether encroachment was made in the property concerned.
On looking into the documents viz., power of attorney, sale deed and the agreement to sell, it is seen except at one place where the vendor tried to striker off of 14/P7 for reasons best known to him and mention as 14/P6, in most of the places it is indicated as 14/P7 and not 14/P6. Further, even as regards boundaries, the boundaries which are referred to in the documents is that of Sy.No.14/P7 and not 14/P6. It is that the error could have occurred due to oversight. Further, looking to the boundaries mentioned in all the three documents viz., agreement to sell, general power of attorney and the sale deed, the sale refers to conveyance of Sy.No14/.P7 and not Sy.No.14/P6 by any stretch of imagination.. In the 10 circumstances, as per the ratio laid down in the above cited case, boundary has to prevail. In that view of the matter, I do not find any illegality in the order passed by the trial court.
Appeal is dismissed.
Sd/-
Judge An