Karnataka High Court
Sri. Gavindasanayaka vs Sri. Mahadevaswamy on 30 November, 2018
Equivalent citations: AIRONLINE 2018 KAR 2198
Author: S.G.Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER 2018
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.50418/2018 (GM-CPC)
BETWEEN:
SRI. GAVINDASANAYAKA,
S/O LATE VENKATANAYAKA,
AGED ABOUT 80 YEARS,
RESIDING AT HOUSE NO.7/479B,
OPP. G.V.GOWDA HOSTEL
RAMASWAMY LAYOUT,
KOLLEGALA TOWN,
CHAMARAJANAGARA DISTRICT.
... PETITIONER
(BY SRI SANTOSH S GOGI, ADV.)
AND:
1. SRI. MAHADEVASWAMY,
SON OF LATE GAVIDASIDDAIAH,
AGED ABOUT 42 YEARS,
2. SRI RAVI,
SON OF LATE GAVIDASIDDAIAH,
AGED ABOUT 39 YEARS,
3. SRI SRINIVASA MURTHY @ GUNDU
SON OF LATE GAVIDASIDDAIAH
AGED ABOUT 37 YEARS,
2
RESPONDENT NOS.1, 2 AND 3 ARE
RESIDING AT PALYA VILLAGE,
KOLLEGALA TALUK,
CHAMARAJANAGARA DISTRICT.
... RESPONDENTS
(BY SRI P C SUNITHA, ADV. FOR C/R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS IN O.S.NO.245/2017 ON THE FILE OF
ADDITIONAL CIVIL JUDGE AND JMFC, KOLLEGALA AND
QUASH THE ORDER DATED 27.10.2018 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC, KOLLEGALA
IN MISCELLANEOUS APPEAL NO.1/2018 (ANNEXURE-F).
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court under Article 227 of the Constitution of India, assailing the order dated 27.10.2018 passed in Misc.A.No.1/2018 on the file of Senior Civil Judge and JMFC, Kollegala.
2. The petitioner is plaintiff and respondents are defendants in O.S.No.245/2017 filed for declaration of title, possession and permanent injunction. The petitioner-plaintiff also filed application under Order 3 XXXIX Rules 1 and 2 of CPC seeking temporary injunction against the defendants not to put up any construction in the schedule property till the disposal of the suit. It is the case of the plaintiff, that the plaintiff purchased suit schedule property under registered sale deed dated 07.12.1981 from one Siddanayaka. Ever since his purchase he is in possession and enjoyment of the same. It is the case of the plaintiff that the mother of the defendants Smt. Puttabasamma sought permission to reside in the suit schedule property and she failed to vacate from the suit schedule property, which made the plaintiff to file the suit. The defendants on appearance filed objections as well as written statement contending that their mother purchased the suit schedule property from the plaintiff and his children under unregistered sale deed dated 27.03.1999 and they are in possession of the suit schedule property by constructing a house therein. Further it is contended that defendant No.2 is constructing another 4 house in the vacant space by obtaining loan. The trial Court based on the material on record granted an order of injunction restraining the defendant No.2 from putting up any construction in a portion of the suit schedule property. Aggrieved by the same, the respondents/defendants filed Misc.Appeal No.1/2018 before Senior Civil Judge and JMFC, Kollegal. The Appellate Court by its order dated 27.10.2018 allowed the appeal subject to the result of the suit and observed that in the event of plaintiff succeeding in the suit, the defendants are liable to deliver the vacant possession of the suit property along with the construction made by them to the plaintiff without seeking any equity.
3. Heard the learned counsel for the petitioner as well as the caveators/respondents and perused the writ papers.
4. Learned counsel for the petitioner submits that the trial Court had rightly granted injunction 5 restraining the defendants from putting up any construction over the suit schedule property. The appellate Court after finding that the plaintiff has purchased the suit schedule property under registered sale deed dated 7.12.1981 only on the ground of equity permitted them to complete the construction, which is wholly erroneous. It is further submitted that if the defendants are permitted to go on with the construction, it would lead to multiplicity of proceedings. Hence he seeks for setting aside the order of the Appellate Court.
5. Per contra, learned counsel for the caveator/ respondents justifies the order passed by the appellate Court and submits that it is an equitable order in the facts and circumstances of the case.
6. The suit is one for declaration to declare that the plaintiff is the absolute owner of the schedule property and for delivery of the vacant possession of the suit 6 schedule property. The Appellate Court has noted that the petitioner/plaintiff has purchased the suit schedule property under registered sale deed dated 07.12.1981 and original sale deed is produced before the Court. The defendants claim that their mother purchased the suit schedule property under unregistered sale deed dated 27.03.1999, which is insufficiently stamped and unregistered document, but finds that the defendants are in possession of the suit schedule property. The prayer of the plaintiff in the suit is also for delivery of vacant possession. The Appellate Court also finds that construction is made on the suit schedule property. The trial Court at paragraph No.24 has held as follows :-
"24. The plaintiff has filed this suit on the basis of his title over the suit schedule property for the relief of declaration of title and recovery of possession. If the plaintiff were to succeed in the suit he is entitled to recover the entire suit schedule property with all appurtenances affixtures, additions. The defendants will be 7 liable to deliver the vacant possession of suit schedule property without seeking any equities as they have put up construction without obtaining sanctioned plan, license and without having a registered instrument in their favour. If an order of temporary injunction is granted in favour of plaintiff as prayed in the application it will render the construction made by the defendants useless. It will not enure to the benefit of either parties to the suit. In such circumstances, it is necessary to allow the defendants to complete the construction work with a rider that they shall deliver the vacant possession of suit schedule property without seeking any equities in the event of plaintiff succeeding in the suit. The balance of convenience lies in favour of defendants in rejecting I.A.No.1. The defendants will be put to irreparable loss and injury if I.A.No.1 is allowed. Per contra, the plaintiff will not be put to any irreparable loss and injury as the defendants are allowed to complete the construction work subject to the rider stipulated above."
7. The Appellate Court has assigned reasons for its conclusion and observed that if injunction is granted, 8 construction would be of no benefit to either of the parties. The Appellate Court has passed an equitable order in the facts and circumstances of the case. The Appellate Court has protected the interest of the plaintiff by making it clear that in the event of the plaintiff succeeding in the suit, the defendants shall deliver vacant possession along with construction made by them without seeking any equity.
8. Therefore, I am of the view, that no prejudice is caused to the petitioner/plaintiff and no ground is made out to interfere with the impugned order of the Appellate Court.
Accordingly, the writ petition is rejected.
SD/-
JUDGE NG* CT:bms