Karnataka High Court
Mr Kulbandhu Ram Adarsh Sharma vs Nam Estates Pvt Ltd on 25 April, 2024
-1-
NC: 2024:KHC:16791
MFA No. 4743 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 4743 OF 2019 (CPC)
BETWEEN:
MR. KULBANDHU RAM ADARSH SHARMA
S/O LATE RAM ADARSH
AMINCHAND SHARMA
RESIDING AT NO.10,
SHRUNGAR SOCIETY, PARLE POINT
ATHVA LINES, SURAT-395007.
...APPELLANT
(BY SRI. ARUNA SHYAM, SENIOR ADVOCATE FOR SRI. MAHESH
A.S., ADVOCATE)
AND:
1. NAM ESTATES PVT. LTD.,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT
FIRST FLOOR, EMBASSY POINT,
Digitally signed
by 150, INFANTRY RAD ,
MARKONAHALLI
RAMU PRIYA BENGALURU, KARANATAKA-560001
Location: HIGH REPRESENTED BY ITS DIRECTOR
COURT OF
KARNATAKA
2. EMBASSY PROJECTS PVT. LTD.,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT
FIRST FLOOR, EMBASSY POINT,
150, INFANTRY ROAD,
BENGALURU, KARNATAKA-560001
REPRESENTED BY ITS DIRECTOR
...RESPONDENTS
(BY SRI. K.G.RAGHAVAN, SENIOR ADVOCATE FOR SRI.
CHANDRASHEKHAR PATIL, ADVOCATE FOR
-2-
NC: 2024:KHC:16791
MFA No. 4743 of 2019
CAVEATOR/RESPONDENT NO.1 AND RESPONDENT NO.2 (VK
NOT FILED IN R/O RESPONDENT NO.2)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 02.04.2019 PASSED ON
O.S.NO.101/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, DEVANAHALLI, REJECTING THE APPLICATION FILED
UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF
CPC.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S.No.101/2019 on the file of the Senior Civil Judge, Devanahalli, (henceforth referred to as 'the Trial Court') has filed this appeal challenging the correctness of an order dated 02.04.2019, in terms of which, applications (I.A.Nos.1 and 2) filed by him under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (for short 'CPC') were rejected.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. -3-
NC: 2024:KHC:16791 MFA No. 4743 of 2019
3. The suit in O.S.No.101/2019 was filed for declaration that the plaintiff is the lawful owner of the suit property and for perpetual injunction to restrain the defendants from interfering with his possession and also from alienating the suit schedule property. The suit property was 08 acres 10 guntas of land out of 16 acres 10 guntas in Sy.No.123 (old Sy.No.67) of Navrathna Agrahara Village, Jala Hobli, Bengaluru North Taluk.
4. The plaintiff claimed that the land bearing Sy.No.67 measuring 225 acres 19 guntas was owned by B.Krishnaswamy who conveyed 125 acres of land in the year 1943 in favour of Sri. Kempaiah. Later in the year 1953, the said Sri.Kempaiah executed a settlement deed in favour of his son Mr. Govindappa. The said Mr.Govindappa filed an application before the appropriate Authority under the 'Inams Abolition Act' to re-grant Sy.No.67 measuring 125 acres and accordingly, the appropriate Authority re-granted 125 acres of land to -4- NC: 2024:KHC:16791 MFA No. 4743 of 2019 Govindappa. The said Govindappa conveyed 125 acres in favour of 09 brothers namely:
i) Iskod Venkata Bovi
ii) Muniswamy Bovi
iii) Chikka Muuniswamy Bovi
iv) Guruva Bovi
v) Muniyappa
vi) Appayya Bovi
vii) Munna Bovi
viii) Doddamuniswamy Bovi
ix) Era Bovi
in terms of a sale deed dated 21.10.1957.
5. Later, the said nine brothers partitioned the land in Sy.No.67, consequent to which, each of them owned approximately 13 acres 04 guntas. The plaintiffs claimed that the family members were in need of money and thus entered into an agreement of sale with Mr. D.Ganesh and P. Anand in respect of 16 acres 20 guntas, out of which, 08 acres 10 guntas is the suit schedule property.
6. The plaintiff claimed that the vendors as stated above approached him and offered to sell the property. Based upon the representations made, the plaintiff agreed -5- NC: 2024:KHC:16791 MFA No. 4743 of 2019 to purchase the suit schedule property for a total sale consideration of Rs.2,01,00,000/. Consequent thereto, a sale deed dated 16.01.2006 was executed in favour of the plaintiff and he was placed in possession of the said property. The plaintiff claimed that since the date of the sale deed, he was in peaceful possession and enjoyment of the suit schedule property. He further contended that the owners of the land bearing Sy.No.67 had filed an application before the Special Deputy Commissioner to bifurcate the land to an extent of 16 acres 20 guntas in Sy.No.67 and to allot a new survey number to the bifurcated land. Based upon such application, the revenue authorities bifurcated 16 acres 20 guntas in Sy.No.67 and assigned new survey No.123. The plaintiff therefore claimed that the property purchased by him lay within 16 acres 20 guntas which was assigned new Sy.No.123. Thereafter, he made an application to initiate mutation proceedings to enter his name in the revenue records of the suit property. Thereafter, the revenue authorities informed the plaintiff that certain individuals claiming to -6- NC: 2024:KHC:16791 MFA No. 4743 of 2019 be the representatives of the defendant No.1 had filed an appeal in R.A.No.365/2006 before the Deputy Commissioner, challenging the bifurcation of Sy.No.123 from Sy.No.67. The plaintiff claimed that he also came to know that the defendant No.1 had filed a suit in O.S.No.2122/2006 before the Senior Civil Judge, Devanahalli for perpetual injunction against all the erstwhile owners as well as the plaintiff. The defendant No.1 had filed the said suit claiming to be the owner and in possession of a portion of Sy.No.67 measuring 23 acres of land. Though the Court had granted an order of exparte injunction, the same was set aside after the plaintiff entered appearance and filed an application for vacating it. This was challenged in a miscellaneous appeal before the District Judge, Devanahalli, who remitted the case back to the Trial Court for fresh consideration in terms of the order dated 14.06.2017. He therefore, contended that there is no injunction operating against the plaintiff. However, the said suit was not pursued by the defendant No.1. Later, another suit was filed in O.S.No.590/2012 before the -7- NC: 2024:KHC:16791 MFA No. 4743 of 2019 Senior Civil Judge, Devanahalli, by Lakshmamma and 55 others for cancellation of the sale deed dated 16.01.2006 executed in favour of the plaintiff. The plaintiff entered appearance in the said suit and resisted the said suit. The plaintiff claimed that he then realised that the defendant No.1 was claiming the lands around the suit property and that it had wrongly assumed that the suit property was a part of the land claimed by it. Therefore, he contended that the defendant No.1 had wrongly claimed the plaintiff's land to be its own. He therefore, filed a representation dated 16.07.2017 to the Tahsildar and to the Additional Director of Land Records for conducting a survey of the suit property. Despite such a request, the authorities did not take any action, which compelled the plaintiff to file W.P.No.57678/2018 before this Court. In the meanwhile, taking advantage of the fact that the plaintiff was an absentee landlord, the defendants had illegally brought in heavy earth moving equipment on the schedule property and tried to put up construction, which he came to know on 27.12.2018. He further contended that he came to -8- NC: 2024:KHC:16791 MFA No. 4743 of 2019 know that the defendant No.1 was the sister concern of the defendant No.2 and both of them had undertaken the development of a project called 'Embassy Springs', a large residential layout. The plaintiff therefore, filed the aforesaid suit for the reliefs mentioned above. Along with the suit, applications (I.A. Nos.1 and 2) were filed for interim injunction to restrain the defendants from interfering with the plaintiff's peaceful possession of the suit schedule property and to restrain the defendants from changing the nature of the suit schedule property.
7. The suit was contested by the defendant No.1 who claimed that the suit is belated inasmuch as even though the title of the plaintiff was denied in the year 2006, the plaintiff had not taken any steps to seek for declaration of his title to the suit schedule property within the time permitted. It further contended that the suit was in respect of a property with imaginary boundaries and that the boundaries mentioned in the plaint were incorrect, false and concocted. It contended that the vendors of the -9- NC: 2024:KHC:16791 MFA No. 4743 of 2019 plaintiff had illegally and without notice to the defendants had obtained a durasth at the hands of the Tahasildar by getting separate survey number (Sy. No.123) assigned to the suit property. It claimed that an appeal was preferred by the defendants before the Special Deputy Commissioner, Bengaluru District, in R.A. No.365/2006 challenging the illegal durasth and bifurcation. The said appeal was numbered as Bhoomapana Appeal No.19/2006-07. The Special Deputy Commissioner in terms of an order dated 26.05.2011, allowed the appeal and set aside the survey conducted and the bifurcation in terms of which the suit property was assigned Sy. No.123 and durasth effected by the Assistant Director of Land Records. It contended that the plaintiff approached this Court in W.P. No.57678/2018 and sought for a direction to respondent No.2 therein - Tahasildar, Bengaluru North Taluk, to consider the representations dated 25.05.2014 and 16.07.2017 respectively and to mutate the revenue records to reflect the name of the petitioner in respect of the suit schedule property and this Court in terms of the
- 10 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 order dated 25.10.2019, directed the Tahasildar, Bengaluru North Taluk, to consider the aforesaid representations submitted by the plaintiff favourably within two months from the date of receipt of a copy of the said order. Later, Tahasildar held a detailed enquiry and passed a detailed order on 15.02.2021 holding that the boundaries mentioned in the sale deed of the plaintiff did not match with the boundaries at the spot as well as in the revenue records. Therefore, the defendant No.2 contended that there was no proper identification of the location of the property claimed by the plaintiff and his claim to the suit property was superficial and imaginary and contended that the plaintiff himself was unsure about the identity and location of his property. It further contended that the plaintiff ought to have sought for the relief of recovery of possession and a mere suit for declaration of title was not maintainable.
8. The defendant No.1 further contended that the plaintiff allegedly claimed to have purchased some portion
- 11 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 of the land in Sy. No.67 on 16.01.2006 from some persons who had no title and therefore, the plaintiff did not acquire any title to the land in question and hence, he did not have any locus standi to file the suit. It, however, claimed that the vendors of the plaintiff had filed O.S. No.590/2012 against the plaintiff for cancellation of the sale deed dated 16.01.2006 before the Trial Court and therefore, the vendors of the plaintiff had denied his title to the suit property. It claimed that it was the owner in possession of 13 acres 04 guntas in Sy. No.67/287 while Sri V.S. Aravindam was the owner of the land measuring 03 acres and 08 acres 08 guntas of land in Sy. No.67/288 and Sy. No.67/p respectively and they had filed a suit in O.S. No.2122/2006 before the Trial Court seeking injunction where the plaintiff was arrayed as defendant No.14. It contended that the Trial Court had granted an order of injunction restraining the defendants in O.S. No.2122/2006 from interfering with the plaintiff's peaceful possession over the suit properties therein. Subsequently, the said order of injunction was vacated and being
- 12 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 aggrieved by the said order, defendant No.1 and Sri V.S. Aravindan filed M.A. Nos.15003/2016 to 15005/2016 before the V District and Sessions Judge, Devanahalli (henceforth referred to as the 'District Court'). These appeals were allowed in terms of the common judgment dated 14.06.2017 and the case was remitted back to the Trial Court for fresh consideration of I.A. Nos.1 to 3 and 38 in light of the observations made therein after affording opportunity to both the parties by raising points for consideration. Defendant No.1 alleged that the plaintiff had suppressed the fact of filing of the suit in O.S No.2122/2006 and the consequent orders passed therein. Hence, defendant No.1 contended that the plaintiff had approached the Court with unclean hands and therefore, was not entitled to any reliefs. Further, it claimed that defendant No.1 being the owner of 13 acres 04 guntas of land in Sy. No.67/287 and one Mr. V.S. Aravindan being the owner of 03 acres 08 acres 08 guntas in Sy. Nos.67/288 and 67/P respectively, had formed a residential layout consisting of sites, apartments and villas
- 13 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 by obtaining necessary sanctions, permissions, licences and NOCs. from the competent authorities and the project was at the stage of completion. Therefore, it claimed that the plaintiff was not in possession of the suit property, but It was the defendants who were in possession of the same.
9. The defendant No.1 later contended that the land in Sy. No.67 of Navarathna Agrahara measuring 120 acres belonged to Sri K.Govindappa he having acquired it in terms of an order of the Special Deputy Commissioner for Inams abolition in Case No.2/58-59. The said Sri K.Govindappa sold the said property in favour of Sri Muniswamy Bhovi and 8 others in terms of a sale deed dated 20.10.1957. The said Sri Muniswamy Bhovi and his brothers entered into a partition among themselves in terms of which the revenue records in respect of the land in Sy. No.67 measuring 120 acres were transferred to their respective names. As a result of the partition, an extent of 13 acres 04 guntas fell to the share of Sri Iskodu
- 14 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 Bhovi @ Venkata Bhovi and revenue records stood transferred to his name vide M.R No.1/57-58. Thereafter, Sri S.Iskodu Bhovi @ Venkata Bhovi sold the said land bearing Sy. No.67 measuring 13 acres 04 guntas in favour of Sri Anjanappa, son of Sri Huchappa in terms of sale deed dated 24.09.1969. Later, there was a partition amongst the children of Sri H. Anjanappa and his family members by virtue of panchayat parikath dated 20.02.1980 with respect to properties belonging to Sri H.Anjanappa. At the said partition, 10 acres in Sy. No.67 fell to the share of Sri H. Anjanappa and the remaining 03 acres 04 guntas fell to the share of Sri R. Chandrappa, Sri H. Narayanaswamy, Sri T.K. Prakash and Sri T.K. Prasad and the revenue records stood transferred to their names in M.R. No.8/1994-95. It is further contended that Sri H. Anjanappa sold an extent of 04 acres 10 guntas out of 10 acres in favour of Sri K. Ramanjanappa, son of Sri Krishnappa in terms of a sale deed dated 28.01.1986. The revenue records pertaining to Sy. No.67 measuring 04 acres 10 guntas were transferred to the name of Sri K.
- 15 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 Ramanjanappa vide M.R. No.2/85-86. Subsequently, Sri K. Ramanjanappa along with his family members sold the said land in Sy. No.67/287 measuring 04 acres 10 guntas in favour of Sri V.S. Ramanujam, son of Sri V.R. Singarachari in terms of a sale deed dated 01.08.2003 and the corresponding khata stood transferred to his name. It was contended that Sri H. Narayanaswamy and Sri T.K. Prakash and Sri T.K. Prasad acquired 01 acre, 01 acre 02 guntas and 01 acre 02 guntas of land respectively in Sy. No.67/287 under the panchayat parikath dated 20.02.1980. Subsequently, they sold their respective extents of land in terms of three sale deeds dated 02.07.2003, 11.07.2003 and 11.07.2003 in favour of Sri V.S. Ramanujam consequent to which the revenue records stood transferred to the name of Sri V.S. Ramanujam. Therefore, it was contended that Sri V.S. Ramanujam, who was the owner in possession of 07 acres 14 guntas of land in Sy. No.67/287, applied for conversion of the land for non-agricultural residential use. Later, the said Sri Ramanujam had conveyed 07 acres 14 guntas in favour of
- 16 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 defendant No.1 on 14.07.2004. The aforesaid Sri H. Anjanappa who retained 05 acres 30 guntas in Sy. No.67/287 got it converted for non-agricultural residential use on 22.01.2004 and sold the same to the defendant No.1 on 14.07.2004.
10. The defendant No.1 contended that consequent to an oral partition amongst Sri Muniswamy Bhovi, Sri Guruva Bhovi and Sri Chikka Venkata Swamy Bhovi, out of the total extent of land that had fallen to the share of Sri Guruva Bhovi, he had sold 03 acres of land in Sy. No.67/288 in favour of Sri Kariyappa under a sale deed dated 24.12.1969 who in turn sold it to the defendant No.1 on 08.06.2005. Thus defendant No.1 became the owner in possession of 03 acres of land in Sy. No.67/288. Similarly, 13 acres of land in Sy. No.67 fell to the share of Sri Chikka Munishamy Bhovi @ Mooga Bhovi and after his death, the said land was inherited by his children, who conveyed 08 acres 08 guntas out of the total extent of 13 acres in the said Sy. No.67 in favour of Sri V.S. Aravindan
- 17 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 on 15.12.2004. Therefore, it was contended that neither the plaintiff nor his vendors had any manner of right, title or interest over the suit property and that the plaintiff by suppressing the transactions had filed the present suit. It contended that the plaintiff was trying to locate an imaginary property purchased by him in the land owned by the defendant No.1 and the other revenue proceedings stood testimony to the aforesaid fact. It contended that the plaintiff is not entitled to any reliefs in the suit.
11. The interlocutory applications - I.A. Nos.1 and 2 filed by the plaintiff for injunction were also resisted on similar lines.
12. Based on the contentions urged, the Trial Court in terms of the impugned order, rejected both the applications (I.A. Nos.1 and 2) on the ground that the defendant No.1 had filed O.S. No.2122/2006 against the present plaintiff and others. In the said suit, the plaintiff was arrayed as defendant No.14 and an ex parte order of temporary injunction was granted by the Trial Court
- 18 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 against the plaintiff. It also noticed that the order of injunction granted was vacated on 05.01.2016 in O.S. No.2122/2006 following which the defendant No.1 and and Sri V.S. Aravindan filed M.A. Nos.15003/2016 to 15005/2016 and the District Court allowed the said appeals. Therefore, it held that the order of injunction granted in favour of the defendant No.1 continued against the present plaintiff. Hence, it held that the question of accepting the version of the plaintiff that he is in possession of the suit property does not arise. It also held that the plaintiff suppressed the material facts and tried to obtain an equitable relief of injunction behind the back of the defendants. It also held that the prayer of the plaintiff in I.A. No.2 showed that the plaintiff was not in possession of the suit property and therefore, held that so long as the order of injunction in O.S. No.2122/2006 granted in favour of defendant No.1 was in operation, the plaintiff was not entitled to any relief of interim injunction in the suit - O.S. No.101/2019 and if he was interested to protect the suit property, he was bound to file necessary application in the
- 19 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 suit in O.S. No.2122/2006 filed by the defendant No.1. It also held that the plaintiff had not shown proper boundaries to identify the suit property and in view of Order VII Rule 3 of CPC, the question of granting any relief in respect of the property claimed by the plaintiff does not arise. It further held that the plaintiff did not furnish any prima facie material to show that his vendors had any right over the suit property and therefore, the question of accepting the title of the plaintiff over the suit property without evidence did not arise. Further, it held that the vendors of the plaintiff had filed suit in O.S. No.590/2012 against the plaintiff for cancellation of the sale deed executed in his favour and the said suit was pending consideration before the Trial Court and therefore, held that the plaintiff could not file another suit in respect of the very same property against the defendants. It noticed the photographs produced by the plaintiff and held that the defendants had already undertaken major developmental work in the suit property which indicated that they were in possession of the same and therefore, it
- 20 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 held that there was no prima facie material to accept the claim of the plaintiff that he was in possession of the suit property. However, it held that the plaintiff was not entitled for any relief in view of the suppression of the material fact regarding the pendency of the suit in O.S. No.2122/2006 and consequently, rejected both the applications.
13. Being aggrieved by the said order, the plaintiff is before this Court in this appeal.
14. Learned senior counsel for the plaintiff/appellant contended that the plaintiff was claiming title to the suit property through the descendants of the family members of Sri Muniswamy Bhovi. He claimed that Sri D.Ganesh and Sri P. Anand had entered into an agreement of sale with the plaintiff in respect of 16 acres 20 guntas in Sy. No.67 of which a portion measuring 08 acres 10 guntas was the suit property. He contended that the plaintiff purchased 08 acres 10 guntas in terms of the sale deed dated 16.01.2006 for a total sale consideration
- 21 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 of Rs.2,01,00,000/- and from the date of purchase, he is in possession of the suit property. He contends that the question whether the plaintiff had better title than the defendant No.1 and whether their respective vendors' had title to the properties conveyed to them are all questions of fact which have to be thrashed out after a full-fledged trial and therefore, it was too premature for the Trial Court to hold that the plaintiff had no title to the suit property or that it was doubtful. He submitted that the very fact that the plaintiff and defendant No.1 were warring over the same portion of the property in Sy. No.67 which was bifurcated and re-numbered as Sy. No.123 and therefore, the contention of the defendant No.1 that the plaintiff is claiming an imaginary property is without any basis. He further contended that the suit in O.S. No.2122/2006 did not relate to the suit property and therefore, there was no need to mention that and it did not impact the applications filed by the plaintiff for interim injunction in O.S. No.101/2019. He contends that the suit in O.S. No.590/2012 filed by the vendors of the plaintiff is
- 22 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 dismissed by the Principal Senior Civil Judge and JMFC., Devanahalli, for non-prosecution on 22.07.2022 and no attempts are made for restoration of the suit. Thus, he contends that the litigation is now between the plaintiff and defendant No.1 and therefore, having regard to the fact that the suit involved a triable question as to whether the plaintiff had better title than the defendant No.1, the Trial Court was bound to direct the parties to maintain status quo in respect of the suit property. He contended that the photographs produced along with the suit as well as in this appeal establish that the defendant No.1 is putting up construction on a war footing and if defendants are not suitably restrained, it is likely to develop the suit property and create encumbrance in favour of third parties which would result in multiplicity of proceedings apart from involving gullible purchasers. He, therefore, contends that until the suit in O.S No.2122/2006 is disposed off, the defendants are liable to be restrained from changing the nature of the suit property or from disturbing the possession of the plaintiff in the suit property. In support
- 23 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 of his contentions, the learned senior counsel relied upon the following judgments:
i). Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs. and Others [(2008) 4 SCC 594]; and
ii). Gangubai Bablya Chaudhary and others v. Sitaram Bhalchandra Sukhtankar and others [(1983) 4 SCC 31].
15. Per contra, the learned senior counsel for the defendants/respondents submitted that the defendants are in possession of the suit property under valid title and they have undertaken the development of a residential apartment complex. He pointed out to the order dated 27.02.2020 issued by Bengaluru International Airport Area Planning Authority (BIAAPA) relating to conversion of certain extents of land in Sy. No.67/287 of Navaratna Agrahara village, for non-agricultural i.e., residential purposes and sanction of a plan for construction of multi level dwelling residential apartments and contends that on all the sides of the property claimed by the plaintiff, the defendants have already undertaken construction and therefore, the plaintiff cannot claim that he is in
- 24 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 possession of the suit property. He further contends that even before the revenue Courts, the plaintiff was unable to establish that the property claimed by him had anything to do with the property claimed by the defendant No.1. In support of his contentions, the learned senior counsel relied upon the following judgments:
i. Vinod Seth v. Devinder Bajaj and another [(2010) 8 SCC 1];
ii. Vareed Jacob v. Sosamma Geevarghese and Others [(2004) 6 SCC 378];
iii. Gowramma and Ors. v. Gavigowda and Ors. [MANU/KA/0057/2022];
iv. Mandali Ranganna and Ors. v. T. Ramachandra and Ors.
[MANU/SC/7567/2008] and v. Shivaraya and others v. Sharnappa and others [1967 SCC OnLine Kar 48].
He has also furnished a brochure indicating the development undertaken by the defendants in the suit property and contends that the granting an order of injunction at this stage would amount to throwing a spanner into the works and would cause irreparable injury to not only the defendants but also to large number of
- 25 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 purchasers who have purchased the units in the residential project.
16. I have considered the submissions made by the learned senior counsel for the plaintiff/appellant and the learned senior counsel for the defendants/respondents. The principles for grant of interim injunction is now as old as the hills and does not call for any reiteration.
17. The earliest of the suits was filed by the defendant No.1 in O.S. No.2122/2006 for the relief of perpetual injunction restraining the defendants including the plaintiff in the present suit from interfering with the possession of the plaintiff therein and from putting up any construction of whatsoever nature on the suit properties and from alienating or encumbering the suit properties. The suit 'A', 'B', 'C' and 'D' schedule properties were (i) land measuring 07 acres 14 guntas in Sy. No.67/287; (ii) land measuring 05 acres 30 guntas in Sy. No.67/287; and
(iii) land measuring 03 acres in Sy. No.67/288, which were commonly bounded by the boundaries and (iv) land
- 26 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 measuring 08 acres 08 guntas in Sy. No.67/P, which was separately bound. An order of ex parte injunction granted by the Trial Court in the said suit came to be tested after the defendants entered appearance and filed their objections. The Trial Court after hearing the parties, in terms of the order dated 05.01.2016, vacated the order of interim injunction which came to be challenged by the defendant No.1 in O.S No.101/2019 and Sri V.S. Aravindan in M.A. Nos.15003/2016, 15004/2016 and 15005/2016. The District Court in terms of the common judgment dated 14.06.2017, allowed all the three appeals and set aside the order dated 05.01.2016 passed on I.A. Nos.1 to 3 and 38 by the Trial Court in O.S. No.2122/2006 and remitted the case back to the Trial Court for fresh consideration of I.A. Nos.1 to 3 and 38 in the light of the observations made therein and after affording opportunity to both the parties by raising points for consideration. After such remand, the Trial Court has not considered the applications. In the meanwhile, the vendors of the plaintiff had filed O.S. No.590/2012 which is stated to
- 27 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 have been dismissed by the Principal Senior Civil Judge and JMFC., Devanahalli, for non-prosecution on 22.07.2022.
18. A perusal of the boundaries of the properties mentioned in the schedule to the suit in O.S. No.2122/2006 and the boundaries of the property mentioned in schedule to the present suit / O.S No.101/2019, prima facie indicate that they do not correspond with each other as the boundaries are largely different. Nonetheless, the property in Sy. No.67 was bifurcated by initiating durasti proceedings and the land was renumbered as Sy. No.123. However, the said proceedings were challenged by defendant No.1 before the Deputy Commissioner in R.A. No.365/2006 which indicate that both the plaintiff and defendants were laying claim to the same property. While the plaintiffs claimed title to the property under the legal heirs of the family members of Sri Muniswamy Bhovi, the defendants too claimed title under the family members of Sri Guruva Bhovi. Therefore, the
- 28 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 principal question is what is the extent of land that was allotted to the family members of Sri Muniswamy Bhovi at the partition dated 28.02.1990. The other question which also requires to be considered is whether the properties purchased by the plaintiff and defendants are within the area allotted to the share of Sri Muniswamy Bhovi and his brothers at the partition dated 28.02.1990. A perusal of the said document at this stage does not give a clear impression as to what was the extent of land that was allotted to Sri Muniswamy Bhovi and their brothers and their respective boundaries. The defendants have also not produced any documents in this regard. Therefore, until and unless there is a clear picture as to what was the extent of land that was allotted to the share of Sri Muniswamy Bhovi and his brothers and what were the consequent transactions brought about by them, it would be difficult to hold that either the plaintiff or the defendants are owners and are in possession of the suit property. Therefore, the plaintiff had made out a triable case that he had also purchased the suit property from
- 29 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 some of the family members of Sri Muniswamy Bhovi. This Court in terms of the order dated 23.09.2019, had permitted the defendants to go on with the construction but contemporaneously held that "Therefore, wherever there is vacant land in the suit property, no new construction shall be undertaken by the parties and, where constructions have already come up, the respondents are at liberty to complete the construction." This order was extended from time to time and it is stated by the learned senior counsel for the plaintiff and the learned senior counsel for the defendants that no construction is put up ever since the order dated 23.09.2019 in any vacant portion of the suit schedule property. Since the plaintiff has made out a triable case and since it is difficult at this stage to decide as to who is in possession of the suit property, it is appropriate to continue the interim order granted by this Court on 23.09.2019 until final disposal of the suit as that would meet the ends of justice and equity. It is relevant to note that the defendants being real estate Companies have already taken large developments in the
- 30 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019 adjoining lands and if the defendants are not restrained from putting up any construction in the vacant portions of the suit property, there is every likelihood of the defendants changing the nature of the suit property and also alienating it in favour of third parties who may be caught unaware of the result of the suit and who may suffer at the end.
19. In that view of the matter, this appeal is disposed off by directing the defendants/respondents herein not to put up any construction on the vacant portion of the suit schedule property nor to change the nature of the vacant portion of the suit schedule property until disposal of the suit. Having regard to the fact that the parties are litigating from 2006, it is appropriate to direct the Trial Court to consider expeditious disposal of the suit in accordance with the Karnataka (Case Flow Management in Subordinate Courts) Rules, 2005.
- 31 -
NC: 2024:KHC:16791 MFA No. 4743 of 2019
20. In view of disposal of these appeals, the pending interlocutory applications do not survive for consideration and the same stand disposed off.
Sd/-
JUDGE Hj - para Nos.1 to 6 sma-para No.7 till the end