Karnataka High Court
Smt. Malar Veni vs Ramamurthy on 8 September, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.4144/2023 (CPC)
BETWEEN:
1. SMT. MALAR VENI,
W/O J. SHANMUGAM,
AGED ABOUT 66 YEARS,
RESIDING AT NO.432 AND 433,
MANISH NEST APARTMENT,
7TH CROSS, ITI LAYOUT,
NAYANDAHALLI,
BENGALURU-560039. ... APPELLANT
(BY SRI SATISH M. DODDAMANI, SENIOR ADVOCATE FOR
SRI SAGAR B.B., ADVOCATE)
AND:
1. RAMAMURTHY,
AGED ABOUT 58 YEARS,
R/AT NO.20, 14TH CROSS,
7TH MAIN, NAYANDAHALLI,
BENGALURU-560039. ... RESPONDENT
(BY SRI H.KANTH RAJA, SENIOR ADVOCATE FOR
SRI H.A.MANJUNATHA, ADVOCATE)
THIS M.F.A. IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 17.04.2023 PASSED ON
I.A.NO.1 AND 2 IN O.S.NO.7098/2022 ON THE FILE OF THE XLII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
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CCH-43, DISMISSING THE I.A.NO.1 AND 2 FILED UNDER ORTHE
FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.08.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed praying this Court to set aside the order passed on I.A.Nos.1 & 2 of 2022 in O.S.No.7098/2022, wherein rejected the application filed under Order 39 Rule 1 and 2 r/w Section 151 of CPC seeking an order of injunction restraining the defendant from interfering or meddling or dispossessing the plaintiff from the schedule property.
2. The factual matrix of the case of the plaintiff/appellant before the Trial Court while seeking the relief of declaration and permanent injunction that the plaintiff has acquired the schedule property from its previous owner through the registered sale deed dated 3.5.2003 and she is the absolute owner in possession and enjoyment of the property bearing No.13, Khatha No.125 situated at Nayandahalli Village, Kengeri Hobli, Bangalore South Taluk, presently comes under the 3 purview of BBMP measuring East to West 30 feet and North to South 50 feet with two floors RCC building constructed thereon which is morefully described in the schedule.
3. The revenue documents are also transferred in the name of the plaintiff in respect of the schedule property and she had paid property tax to the BBMP authorities till this day. The plaintiff has obtained trade licence in the schedule property and also taken connection from the BESCOM and also BWSSB in the name of the plaintiff in respect of the schedule property. The plaintiff is uninterrupted possession over the schedule property.
4. The defendant is an utter stranger to the schedule property and having local political support and goonda elements and taking advantage of the same, the defendant and his henchmen came near the suit schedule property and disturbed the possession of the plaintiff and tried to dispossess the plaintiff in the suit schedule property illegally and to change the nature of the schedule property and one such attempt was made by the defendant and his men on 2.10.2022 and the same was resisted by the plaintiff along with her family members and timely 4 intervention of the neighbours and they may come again to interfere. It is also contended that the plaintiff is a poor lady and a senior citizen and taking advantage of the same, the defendant is making all his efforts to put up CCTV Camera and tried to remove the structure in the suit schedule property and immediately the plaintiff approached the jurisdictional police and they also not helped the plaintiff and hence the suit is filed before the Court.
5. The plaintiff also sought an ad-interim injunction by filing an applications under Order 39 Rule 1 and 2. I.A.No.1 is filed for restraining the defendant from interference and I.A.No.2 is filed for not to change nature of the property.
6. The applications are resisted by the defendant by filing written statement and also filed the memo adopting the written statement as objections to I.A.Nos.1 and 2. The defendant in his written statement contended that he is the absolute owner in possession and enjoyment of the property measuring 36 guntas. Out of 1 acre 32 guntas in Sy.No.No.21/1B of Nayandahalli Village, he acquired the same as 5 per the decree passed in O.S.No.6975/2013 by the XVIII Additional City Civil Judge, Bangalore. Originally, one Shivanala @ Shivalinga who is the ancestor of the defendant, purchased 3 acres 34 guntas in Sy.No.21/2 of Nayandahalli Village as per the Sale Deed dated 28.6.1926 from Thoti Dodddamuniya and Chikkamuniya. Thereafter, the land measuring 1 acre 11 guntas was renumberd as Sy.No.21/1A and the extent of land measuring 2 acres 17 guntas was renumbered as Sy.No.21/1B. He had two sons by name Dodda Venkatappa and Chikka Venkatappa who succeeded to his estate after his death. The said Dodda Venkatappa had three children namely Pillappa, Thammaiah and Munivenkatappa and Chikka Venkatappa had no issues and he died on 12.4.1982 leaving behind his two wives by name Lakshmamma and Sakamma. As such, the said Sakamma during her life time, adopted the defendant as per adoption deed dated 26.9.1990. The said Sakamma died on 24.5.2012 leaving behind the defendant as her only surviving legal heir. Subsequent to the death of Shivanala @ Shivanaliga, the Khatha was registered in the name of Dodda Venkatappa and Chikka Venkatappa and after their death, the land in question was 6 devolved on their respective legal heirs namely Pillappa, Thammaiah and Munivenkatappa and Sakamma. In the meantime, the BDA had issued a Notification on 17.11.1988 and declaration on 30.11.1990 and another Notification on 8.4.1994 and acquired the land for formation of layout called 'Venkateshwara Layout' and the land in Sy.No.21/1B was included in the said acquisition proceedings. Subsequent to the Notification, the land in question was in symbolic possession of the BDA. Inspite of the same, the defendant's mother Sakamma continued in possession and enjoyment of the land in Sy.No.21/1B measuring 36 guntas out of 2 acres 17 guntas. No award has been passed by the BDA with regard to issuance of compensation. The defendant and his mother Sakamma have challenged the said Notification before this Court in W.P.No.20395/2010 and the legal representatives of Doddavenkatappa have also challenged the said Notification by filing W.P.No.39172/2013 and this Court quashed the acquisition proceedings by holding that, acquisition proceedings initiated is deemed to have lapsed by virtue of Section 27 of the BDA Act and the lands would consequently revert to the land owners. The 7 BDA has not challenged the said orders and the same has reached its finality. As the defendant is the only surviving legal heir of Sakamma, the Khatha was transferred into his name as per MR No.H3/2012-13.
7. It is also contended that, subsequently the legal heirs of deceased Pillappa, Thammaiah and Munivenkatappa namely Saraswathi and others have filed a suit against defendant for the relief of partition in respect of land in Sy.No.21/1A and Sy.No.21/1B in O.S.No.6975/2013 before the XVIII Additional City Civil Judge, Bangalore and the matter has been settled in the course of mediation and entered into a compromise and the Court has drawn a final decree in the said suit and the defendant was allotted the land measuring 36 guntas out of 1 acre 32 guntas in Sy.No.21/1B of Nayandahalli Village. The said property is an agricultural land and at no point of time it has been converted and no layout has been formed either by Shivanala @ Shivanaliga or by his legal heirs.
8. The plaintiff filed a suit in O.S.No.2633/2016 falsely contending that she is the absolute owner of house property 8 bearing Site No.13, Khatha No.125 of Nayandahalli village, measuring East to West 30 feet and North to South 50 feet. But, in this suit as well as in the earlier suit, she has not disclosed the flow of title acquired by her. She is concealing the same as her alleged vendors not at all having any valid right, title over the schedule property to transfer the title. But in her evidence in the earlier suit, she contended that she purchased the schedule property under a registered sale deed dated 3.5.2003 from Bhagyamma represented by her GPA Holder J.Shanmugam and the said Bhagyamma has sold the schedule property by executing registered GPA dated 16.01.1997 in favour of J.Shanmugm for a consideration of Rs.2,50,000/- and she executed an affidavit in his favour. Further, the plaintiff falsely contended in her evidence in O.S.No.2633/2016 that originally suit property belonged to one Shaik Hyder and the said Shaik Hyder sold the suit property in favour of said Bhagyamma under a registered sale deed dated 13.02.1992 and after perusal of the said sale deed, it is found that the said Shaik Hyder has allegedly executed sale deed in favour of Bhagyamma by contending that the property No.13, Khatha No.125 situated within the limits of 9 Gramatana is the ancestral property of one Munivenkatappa, Pillappa and Muniyellappa who are the sons of Dodda Venkatappa, who have allegedly executed GPA in his favour. The said Munivenkatappa or others have no authority to execute either GPA or sale deeds in favour of any third parties like Shaik Hyder or anybody. As on the date of alleged transaction, the said Munivenkatappa and others were not at all having exclusive right, title or interest over the land in question. The said transaction made by Munivenkatappa and others without the consent of any other co-parceners including the defendant's mother Sakamma, which is not binding on the other joint family members. The plaintiff has not derived any valid right, title or interest over the suit schedule property. The children of Doddavenkatappa have no individual rights to create any encumbrance over the land in question exclusively either in favour of Shaik Hyder or anybody as the land in question was the joint family property or the defendant's family at the time of alleged transactions.
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9. It is also contended that the plaintiff has not claimed her property is the part and parcel of Sy.No.21/1B of Nayandahalli Village and even in the suit also the plaintiff has not claimed that her property is part of Sy.No.21/1B. The plaintiff has not produced any documents to show that the property which has been claimed by the plaintiff is a portion of Sy.No.21/1B. The plaintiff has claimed that she purchased site No.13 from Bhagyamma through her GPA holder Shanmugam. As per the recitals of the said sale deed, the Vendor Bhagyamma purchased the schedule property through a registered sale deed dated 13.02.1992 from Munivenkatappa and others through GPA Holder Shaik Hyder. As per recitals of the said document, the said Shaik Hyder being the attorney holder of Munivenkatappa and others sold site No.13 in favour of said Bhagyamma. But in the said sale deed no reference is forthcoming with regard to Sy.No.21/1B and she has not produced the alleged GPA claiming to be executed by said Munivenkatappa and others in favour of Shaik Hyder. By the time of execution of alleged documents, the property was acquired by BDA for formation of 'Venkateshwara Layout' and even if it is assumed that the said Munivenkatappa 11 and others have executed alleged GPA, they have no right to execute the same, and as possession of the same vested with the BDA, the said Shaik Hyder not at all obtained delivery of possession from their executants of alleged GPA. Though the plaintiff has produced the Khatha and other revenue records in respect of site No.13, but those documents also not having any reference with respect to Sy.No.21/1B and hence, prayed the Court to reject the applications and plaintiff has not been in possession of the suit schedule property.
10. The Trial Court having considered the averments of the plaint and applications and the statement of objections formulated the points, whether the plaintiff has made out a prima facie case, balance of convenience and irreparable loss and answered the said points as negative in coming to the conclusion that the plaintiff is claiming that originally schedule property belong to Shaik Hyder and he sold the same in favour of Bhagyamma under an unregistered sale agreement dated 13.2.1992 and among the said unregistered agreement has not pass any title to Bhagyamma. Whatever the alleged sale deed 12 said to be executed by Bhagyamma in favour of J.Shanmugam also not passed any title to him. The alleged sale deed executed by J.Shanmugam in favour of the plaintiff in respect of the schedule property has not passed title to the plaintiff. Whatever the documents relied by the plaintiff i.e. sale deed dated 3.5.2003 said to be executed by Shanmugam, the husband of the plaintiff as GPA holder of Bhagyamma and other documents, sale agreement and power of attorney said to be executed by Bhagyamma in favour of Shanmugam, they are all disputed documents. When the title itself is not passed to the plaintiff based on the documents, question of possession of the plaintiff does not arise at all.
11. The suit filed by the plaintiff against defendant for injunction with respect to the schedule property has been dismissed and held that there is a cloud of title with respect to the property of the plaintiff, the plaintiff has to prove the title. When such being the fact, the plaintiff has not established the prima facie case at this stage and having taken note of this aspect into consideration, since the same is contended by the 13 defendant disputing the documents, the Trial Court also comes to the conclusion that when the original property was acquired by BDA and the defendant has challenged the same and the writ petition was also allowed and plaintiff is claiming ownership based on the sale deed said to be executed by her husband and when there is cloud with respect to the title of the property, it is the plaintiff to establish the same by producing cogent evidence. Since the suit filed by the defendant for injunction has been dismissed, at this stage the plaintiff has not at all made out a prima facie case for grant of temporary injunction and whatever the documents relied upon by the plaintiff does not establish the title at this stage and rejected the application. Hence, the present appeal is filed before this Court.
12. The main contention of the counsel appearing for the appellant in his argument that the Trial Court committed an error in dismissing the application and fails to take note of the fact that the plaintiff has produced the voluminous document and also in O.S.No.6975/2013 the respondent in the above mentioned appeal was arrayed as defendant. During the course 14 of his cross examination, he has admitted that the appellant is in possession and occupation of residential building, further he states that, property of the plaintiff in the said suit is entirely different from his property, when this is the tenor of the admission by the respondent in the first round of litigation, now in the written statement it is contended that, claim of the appellant in the present suit is that, plaintiff is claiming property belonging to him, the defendant cannot make such stand, now he has estopped from taking such a stand. Counsel also have vehemently contend that, it is well settled law that at the stage of deciding of an application for temporary injunction, the Trial Court need not hold a mini trial to ascertain title as contended by the rival parties and to restrict the protection from dispossession, as such, all that was to be considered by the Trial Court, whether the plaintiff is likely to be dispossessed from the suit schedule property and the same is not taken note of by the Trial Court while passing such an impugned order and hence the very impugned order requires interference.
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13. The counsel also while arguing the matter, relied upon list of documents i.e. sale deed dated 3.5.2003 and also relied upon the sale deed dated 13.2.1992 executed in favour of Bhagyamma and also relied upon the sale deed dated 16.1.1997 which was executed in favour of J.Shanmugam by Smt. Bhagyamma and also produced the affidavit executed by Smt.Bhagyamma and also the documents issued by Bengaluru Mahanagara Palike and also the documents of BBMP and tax paid receipts and also produced trade licence certificate and copy of the FIR, BWSSB letter and layout plan and photographs and also the earlier judgment passed in O.S.No.2633/2016 and counsel brought to notice of this Court that, in the earlier suit, the Trial Court comes to the conclusion that the plaintiff is in possession and enjoyment of suit schedule property as on the date of the suit and only contend that the suit was dismissed on the ground that there is a cloud in respect of the title of the properties and brought to notice of this Court paragraph No.31 of the judgment.
14. Per contra, the counsel appearing for the respondent in his argument vehemently contend that there is a dispute with 16 regard to the identity of the property. The counsel would vehemently contend that the BDA has acquired the property in the year 1988 itself i.e. Sy.No.21/1B and subsequently, the family members have filed the suit and in terms of the said suit and compromise, 36 guntas of land was allotted to the defendant and the defendant had challenged the very acquisition before this Court and the same was allowed and property vests with the defendant. The counsel would vehemently contend that, according to the plaintiff he has purchased the property in 2003 and the same is also a vacant site in terms of the sale deed which is produced before the Court i.e. site No.13 and nothing is stated with regard to the construction of the building and no plan, no permission and completion certification for having constructed the building is produced before the Court to show the material that subsequent to purchase also they have constructed the building. The counsel would vehemently contend that, the defendant in order to prove the fact that he had constructed the building and building is in existence, produced the photographs and also produced the electricity bill for payment of electricity charges and also produced the FIR copy as 17 document No.13 and also the letter issued by the Police. The counsel also would vehemently contend that the rental agreement is also produced before the Court that defendant has constructed the building and let out the premises and rent agreement discloses in respect of the site No.1, Sy.No.21/1B and also the shop No.1 and also other rental agreement in respect of shop Nos.1 and 2 and it clearly discloses that defendant is in possession of the property and also produced the copy of the judgment, pleadings and earlier suit between the parties as well as the suit for partition and other documents and counsel also vehemently contend that in the plaint, plaintiff has suppressed the fact that earlier suit has been dismissed or not and no such pleading is made in the plaint and hence it is clear that by suppressing the earlier proceedings has filed the suit for the relief of declaration and injunction and tried to obtain an order of injunction and plaintiff has not approached the Court with clean hand. The counsel would also vehemently contend that, defendant has produced the electricity bill and contend that the document clearly discloses that defendant is in possession of the property.
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15. The counsel relied upon the judgment reported in 1968(1) page 552 in the case of Rangamma Vs. Krishnappa and brought to notice of this Court page No.556, wherein an observation is made that, if the argument of the appellant in this behalf is acceptable, it would follow that any owner of property can take the law into his own hands and secure possession by resorting to force, stratagem or trick. Such a situation would also imply that a landlord or an owner of an immoveable property would be immune to action for trespass, which indeed would be anomalous.
16. The counsel also relied upon the judgment reported in AIR 1960 SC 1156 in the case of The Printers (Mysore) Private Ltd. Vs. Pothan Joseph and brought to notice of this Court paragraph No.9, wherein an observation is made that, where the discretion vested in the Court under Section 34 has been exercised by the Trial Court, the Appellate Court should be slow to interfere with the exercise of the said discretion. 19
17. The counsel also relied upon the judgment reported in I.L.R. 1989 KAR 1701 in the case of Sri.Gowrishankara Swamigalu Vs. Sri.Siddhaganga Mutt and contend that, this Court in elaborately discussed while exercising the discretion while granting an order of injunction under Order 39 Rule 1 and 2 and these judgments are aptly applicable to the case on hand and it does not requires any interference.
18. In reply to the arguments of the respondent's counsel, the appellant counsel would vehemently contend that the suit is filed for the relief of comprehensive suit, since earlier suit was dismissed.
19. Having heard the appellant's counsel and also the counsel for the respondent, the points that would arise for consideration of this Court are:
i) Whether the Trial Court has committed an error in dismissing the applications filed under Order 39 Rule 1 and 2 i.e. I.A.Nos.1 and 2 and whether it requires interference?
ii) What order?20
20. Having heard the respective counsel and considering the pleadings of both the parties and also considering the prayer in the suit, schedule property bearing No.13, Khatha No.125 situated at Nayandahalli, Kengeri Hobli, Bangalore South Taluk, presently comes under the purview of BBMP, measuring East to West 30 feet, North to South 50 feet with two storied RCC building constructed thereon and the sale deed which is produced before this Court, under which the plaintiff is claiming the title wherein schedule is mentioned only site No.13. Nowhere it is mentioned that there is an RCC building, but only it is mentioned as together with 1 square of AC sheet roofed building. But now claiming that it consists of RCC building and in order to substantiate that defendant had constructed the building as rightly contended by the counsel appearing for the respondent that, no document of plan, permission obtained from the concerned authority for construction of the building are produced before the Court. No doubt the plaintiff has produced the documents before the Court with regard to the title of the year 1992 and 1997 sale deeds and also the Khatha certificate and all in respect of property No.13 and on the other hand it is 21 the contention of the defendant that property originally belongs to the ancestors and the property was acquired by the BDA and the same was challenged by the defendant by filing writ petitions before this Court and the same are allowed and the copy of the order passed by this Court also produced along with the list of documents produced by the defendant. In order to identify the property is concerned, there is a dispute and no doubt earlier suit was filed for the relief of bare injunction wherein an observation is made with regard to that the plaintiff is in possession while answering the point No.1, wherein also property is described as site No.13 and the said suit was filed in the year 2016 and the same was dismissed and no dispute to that effect and also the Court while dismissing made an observation that there is a cloud on the title. Here also there is a cloud on the title and no doubt a comprehensive suit is filed before this Court. But in the present suit, the plaintiff has not stated anything about the earlier suit, but only sought for the relief of declaration by stating facts of the case, description of the property and the same is a residential building and when the residential building was constructed has not been pleaded in the 22 plaint. But only claims that plaintiff is the absolute owner in possession and enjoyment of the property and I have already pointed out that the respondent counsel brought to notice of this Court that when the property was purchased in 2003 it is a site and no document of having constructed the building is placed before the Court. On the other hand, the counsel for the respondent also produced two documents contending that an attempt is made to interfere with the property and photographs also produced as document No.1 i.e. nine photographs and also the FIR dated 24.8.2023, a complaint is given by the tenant who is in occupation of the premises. The FIR is also registered on 24.8.2023 and also produced the electricity bill and photograph also produced before the Court that the defendant is in occupation of the property. Having taken note of these documents and also there is a dispute with regard to the very identity of the property and defendant claims that it was an agricultural land when the property was acquired by the BDA and the same was challenged and this Court also allowed the writ petitions and quashed the very proceedings initiated by the BDA.
The BDA initiated the proceedings in the year 1988 and no steps 23 was taken to complete the acquisition proceedings and writ petition was also filed in 2010 and the same was allowed and now the defendant claims that the property vests with the defendant and defendant particularly claims that he is in possession in respect of Sy.No.21/1B to the extent of 36 guntas which had been allotted in the partition suit filed by the family members. When such identity of the property is disputed and plaintiff has to prove in which survey number site No.13 has been carved out and no such material is placed before this Court with regard to the title is concerned and they claimed the title through one Bhagyamma and in turn Bhagyamma sold the same and thereafter the vendor of the plaintiff had sold the property in the year 2003. There is a clear dispute with regard to the identity of the property and the plaintiff also produced some of the documents with regard to the title is concerned and defendant also placed the document that originally property belongs to their ancestors and there was a partition in the family and they are in possession of the property by constructing the building and also produced the rental agreement as well as the electricity bill. When such being the case, even the very 24 contention of the appellant's counsel that the Court can direct both the parties to maintain status quo. When the very possession and identity of the property is in dispute, question of passing an order of status quo does not arise and hence, I do not find any error committed by the Trial Court in rejecting the applications and hence no merit to reverse the finding of the Trial Court to allow the applications filed under Order 39 rule 1 and 2. The matter requires full fledged trial for identification of the very property claimed by the plaintiff as well as the defendant and no prima facie case is made out and hence, I do not find any ground to interfere with the findings of the Trial Court and Trial Court rightly comes to the conclusion that the plaintiff has not made out a prima facie case and no balance of convenience and irreparable loss in favour of the plaintiff. When such being the case, as rightly held by the Apex Court that the Appellate Court must be slow in reversing the finding unless any perversity is found in the order impugned and hence, I do not find such perversity in appreciating the material on record and hence, no ground to set aside the order and hence I answer the point in negative.
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21. In view of the discussions made above, I pass the following:
ORDER Appeal is dismissed.
Sd/-
JUDGE AP