Bangalore District Court
Smt.Lakshmidevi vs Sri.T.Arunachalam on 29 March, 2021
O.S.No.9994/2005
1
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.K.SUBRAMANYA, B.Com., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE ,
BENGALURU.
Dated this the 29 th day of March 2021.
O.S.No.9994/2005
PLAINTIFF : Smt.Lakshmidevi,
W/o.S.Munireddy,
46 years,
R/at.No.190,
Hongasandra,
Begur Road,
Bengaluru.
(By Sri.B.P., Advocate)
.Vs.
DEFENDANTS : 1. Sri.T.Arunachalam,
S/o.Thanganadar,
65 years,
R/at.No.1813,
18th Main Road,
4th 'T' Block,
Jayanagar,
Bengaluru.
(By Sri.V.V.G., Advocate)
2. Sri.B.G.Keshava Reddy,
S/o.Late Gopala Reddy,
O.S.No.9994/2005
2
32 years,
R/of.Hongasandra,
Begur Road,
Bengaluru.
(Exparte)
Date of institution of suit : 14.12.2005
Nature of Suit : Injunction Suit.
Date of commencement of
evidence : -
Date on which the judgment 29.03.2021
is pronounced:
Duration taken for disposal : Year/s Month/s Day/s
15 03 15
(K.SUBRAMANYA)
LXVII Addl.City Civil and Sessions Judge,
BENGALURU.
JU DG M E NT
The plaintiff has filed this suit under Order VII Rule
1 of C.P.C., seeking the relief of :
Mandatory injunction directing the
defendants to demolish the entire
unauthorised structure erected on 'B'
schedule property, failing which,
alternatively permit the plaintiff to pull
down the unauthorised construction put up
by the defendants on 'B' schedule property
at the cost of the defendants ;
O.S.No.9994/2005
3
For possession of the 'B' schedule property
unlawfully occupied by the defendants ;
Permanent injunction restraining the
defendants not to interfere in any manner
with the peaceful possession and enjoyment
of the property and further restraining from
putting up any unauthorised construction
on the 'B' schedule property of the plaintiff
and to grant such other reliefs and also
costs of the suit.
2. The plaint averments in brief:
The plaintiff is the absolute owner in possession and
enjoyment of the agricultural land morefully described in
the schedule. She has derived the suit schedule 'A'
property under registered Gift Deed, dated:2.04.2004. All
the revenue documents relating to suit schedule 'A'
property stood transferred in the name of the plaintiff and
she has paid the land revenue tax to th concerned
authority. She has been residing at Hongasandra Village
ever since her marriage in the year 1980. The plaintiff'a 'A'
schedule property is 1½ k.m., away from her residence and
taking advance of the absence of the plaintiff from suit
schedule 'A' property, the defendant No.2, who has no
manner of right, title and interest over the suit schedule 'A'
property, has interfered with the plaintiff's peaceful
possession and enjoyment of the property on 4.03.2005.
Hence, the plaintiff has filed a case in O.S.No.1897/2005
O.S.No.9994/2005
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seeking the relief of permanent injunction against the
defendant No.2. But, the court did not grant an ad-interim
order of temporary injunction, when the suit was filed. The
defendant No.2, who has appeared before the court has
filed his written statement in the suit contending that he
has nothing to do with the suit schedule 'A' property and
that he never interfered with the plaintiff's possession and
enjoyment of the suit schedule 'A' property. Further, this
court in view of the averments in the written statement of
the defendant No.2, however did not grant any interim
relief, but posted the case from time to time to hear the
application of the plaintiff. Taking advantage of this
situation, the defendant No.2 has now set up the defendant
No.1 against the plaintiff and both the defendants colluding
with each other, have unuthorisedly constructed a building
on the plaintiff's vacant land i.e., suit schedule 'A' property
in survey No.71/7, situated at Hongasandra Village, Begur
Hobli, Bengaluru South Taluk.
Against the illegal, high handed and unauthorised acts
of the defendants, the plaintiff gave an order to complaint
to the jurisdictional police, but the police have not given
any protection to the plaintiff. The defendants though do
not possess any right, title or interest whatsoever over the
plaintiff's property, have unauthorisedly and illegally put
up the construction with the aid of muscle power and being
O.S.No.9994/2005
5
illegally protected by the local police and hooligans. Hence,
this suit for the the above reliefs.
3. Upon service of suit summons, the defendant No.1
has appeared before the court through his counsel and filed
the written statement. The defendant No.2 has failed to
appear before the court and hence, the defendant No.2 was
placed exparte.
4. The defendant No.1 in his written statement has
contended that the averments made by the plaintiff is false
and the suit is liable to be dismissed in limine. The facts
stated in para No.3 of the plaint is false. It is pertinent to
note that on 16.08.1991, the mother-in-law of the plaintiff
namely Smt.Chinnamma and the husband of plaintiff
namely Sri.S.Munireddy have jointly executed an
Irrevocable General Power of Attorney in favour of one
Sri.T.M.Venkataswamy, S/o.Thimmaiah of Adugodi,
Bengaluru in respect of land bearing survey No.71/7
measuring 26 guntas and in survey No.72 measuring 14
guntas of Hongasandra Village, Begur Hobli, Bengaluru
South Taluk. The husband and mother-in-law of the
plaintiff have sold 40 guntas of land for valuable
consideration of Rs.3,50,000/-. The said Sri.Venkataswamy
has sold Site No.5 by representing the husband of plaintiff
O.S.No.9994/2005
6
herein as his G.P.A.Holder in favour of the defendant No.1
through registered Sale Deed, dated:25.10.1991 with
specific boundaries. All the purchasers have fully
developed their respective sites by constructing RCC
building and AC Sheet. They have invested lakhs of rupees
for construction and residing in the constructed premises.
They have obtained all the basic amenities such as
electricity, water connection. The entire layout is
developed. Therefore, the lawful possession and enjoyment
of the agricultural land does not arise. It is also contended
that the same boundaries are specified in
O.S.No.4712/2004. This plaintiff is defendant No.2 in the
said suit and the shares are to be determined. On one
hand, the kith and kins of Sri.Munireddy have filed a suit
for partition in O.S.No.4712/2004 in respect of the family
properties and out of which, the schedule 'A' property
under this suit is the Suit Item No.6 in that suit i.e.,
O.S.No.4712/2004. Hence, this suit for bare injunction is
not maintainable.
The plaintiff is not in lawful possession of the property.
The allegations as to the defendants are not having any
right, title and interest over the property does not arise at
all. There is no interference as alleged by the plaintiff. The
Gift Deed is created to achieve the illegal goal of the
plaintiff. The plaintiff has approached the court with
O.S.No.9994/2005
7
unclean hands and hence, she is not entitled for the
equitable relief of injunction against the true owner i.e., the
defendant No.1. Hence, sought for dismissal of the suit.
5. On the basis of the above pleadings, my learned
predecessor has framed the following issues.
1. Whether the plaintiff proves that she is in
lawful possession and enjoyment of the
plaint 'A' schedule property ?
2. Whether the plaintiff proves that the
defendants in collusion with each other,
have unauthorisedly constructed a
building in the plaint 'B' schedule
property as alleged ?
3. Whether the suit is bad for mis-joinder
and non-joinder of necessary parties ?
4. Whether the plaintiff is entitled for a
mandatory injunction as prayed for ?
5. Whether the plaintiff is entitled for the
decree of possession of the plaint 'B'
schedule property ?
6. Whether the plaintiff is entitled for a
decree of permanent injunction as prayed
for ?
7. What Order or Decree ?
6. While proceedings, on 12.08.2013, this court has
passed an order on I.A.No.3 as follows:
O.S.No.9994/2005
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Heard both the sides on I.A.No.3 filed
under Section 10 r/w. Section 151 of C.P.C.,
by the defendant. Perused the records. The
defendant requests the court for staying of
proceedings in this suit till disposal of
partition of suit in O.S.No.4712/2004. The
present plaintiff is the second defendant in
O.S.No.4712/2004 filed for partition. The
present first defendant is also one of the
defendants in O.S.No.4712/2004. The plaint
in O.S.No.4712/2004 indicates that the
survey No.71/7 measuring 26 guntas is one
of the subject matter. The present suit
property is one of the subject matter in the
earlier suit. The present suit in respect of
mandatory injunction and possession of 'B'
schedule property. O.S.No.4712/2004 is
having wider issues. Therefore, it is proper
to stay the proceedings of this suit till
disposal of O.S.No.4712/2004 in order to
avoid the conflicting decision in this suit and
O.S.No.4712/2004. I proceed to pass the
following :
O.S.No.9994/2005
9
ORDER
I.A.No.3 is allowed. No cost.
The proceedings in this suit are hereby stayed till disposal of O.S.No.4712/2004.
7. Now, the learned counsel for defendant has filed a Memo in view of disposal of that suit in O.S.No.4712/2004 and contending that this suit is not maintainable. On the basis of that Memo, Additional Issues have been framed on 9.03.2021.
1. Whether suit is maintainable in view of Decree passed in O.S.No.4712/2004 before CCH-16, dated:22.01.2016 ?
2. What Order or Decree ?
8. The present suit could be disposed off on maintainability of this suit. Hence, the Additional Issue No.1 is taken as Primary Issue to dispose off the case. On perusal of the Decree passed in O.S.No.4712/2004, dated:22.01.2016, it is ordered and decreed and declared that the Gift Deed executed by the defendant No.1 in favour of defendant Nos.2 and 3 in respect of the property is not binding on the plaintiff's share in the suit properties.
9. Heard arguments of both the sides.
O.S.No.9994/2005 10
10. My findings to the above issues are as under:
Addl. ISSUE No.1 - Suit is not maintainable; Addl. ISSUE No.2 - As per the final order, R E A SON S
11. ADDITIONAL ISSUE No.1 : It is clear from the averments in the plaint and written statement that the plaintiff has filed this suit after filing of the Partition Suit in O.S.No.4712/2004. Therefore, the suit for equitable relief of injunction is in consonance with the larger relief sought for in the Partition Suit. The inferior right merges with the superior right. In Latin, "BONUM INTERIUS AT SUPERIOR MERGE" . When the inferior right accruing a party under contract or about right, title and interest of the property, it merges with the superior right. It is known as
(a) alteration, (b) waiver, (c) remission (d) merger or interwoven remedies. Therefore, the decree passed in O.S.No.4712/2004, dated:22.01.2016, which conclusively determines the right of parties. In the Decree, it is clearly observed and ordered that it is declared that the Gift Deed executed by the defendant No.1-Sri.Munireddy in favour of defendant Nos.2 and 3 namely Smt.Lakshmidevi and Sri.H.M.Manjunath in respect of property in survey No.71/1 and 72, dated:2.04.2004 is not binding on the O.S.No.9994/2005 11 plaintiff's share in the suit properties. Therefore, the allotment of shares and decree binds parties herein also. The defendant No.2 in O.S.No.4712/2004 i.e., Smt.Lakshmidevi is the plaintiff in this case. Therefore, her right derived under Gift Deed is subject to decree passed in O.S.No.4712/2004. Hence, she cannot claim the mandatory injunction or permanent injunction for whole property comprising 'A' and 'B' schedule set out in the plaint. Therefore, the suit is not maintainable either in law or on facts.
12. Further, the learned XVII Addl. City Civil & Sessions Judge, Bengaluru has clearly observed in para No.29 of the judgment in O.S.No.4712/2004 that, it is proper to decree the suit partly by holding that the plaintiffs 1 to 4 together and the plaintiff No.1 are entitled for partition and separate possession of 1/6th share each in the suit properties and that the decree for partition does not affect the alienation made in respect of the suit properties.
13. It is also declared that the Gift Deed, dated:2.04.2004 executed by the defendant No.1 in favour of his wife Smt.Lakshmidevi and his son Sri.Manjunath in respect of the property in survey Nos.71/7 and 72 is not binding on the plaintiff's share. Therefore, the suit is not maintainable O.S.No.9994/2005 12 for whole property comprising in survey Nos.71/7 and 72.
14. The supervening possibility of getting right in partition suit basically decides the possession of a party to the suit. The injunction relief merges with the right ascertained in the partition suit. The possession is joint possession unless right of share is determined. Hence, the suit filed for injunction earlier to determination of the share and conferring particular portion of possession, the suit is infractuous and does not entitle the plaintiff to the equitable relief of injunction. The suit for injunction against co-parcener or against co-sharer or co-owner or against joint family member is not maintainable in view of adjudication of the rights for partition is penultimately decides the rights of the possession and the parties and stake holders have their shares under Hindu Succession Act. The partition remedy is ownership and possessory remedy. As such, the possession follows the title to the share to which the Joint Hindu Family Members entitle to in a partition suit. Hence, the independent suit for bare injunction is not maintainable.
15. Even in the FDP Proceedings, the plaintiff could urge for a possession and to protect his share of possession and to seek for equitable relief of injunction from prohibiting interference by any person or interference of the O.S.No.9994/2005 13 defendants and the persons claimed under them. Here in this case, the matter was stayed under Section 10 of C.P.C., till determination of the suit for partition. Now, in view of decision in that suit, this suit becomes infractuous and liable to be dismissed. Sections 34 and 35 of Specific Relief Act provides for remedy to grant the relief of declaratory relief and enforcing of individual civil rights. The discretion of courts as to declaration of status or right is empowered under Section 34 of Specific Relief Act and the effect of declaration is enunciated under Section 35 of Specific Relief Act. The right subsequently amalgamates with the right conferred on adjudication in a partition suit. Hence, the suit for bare injunction is not maintainable.
16. It is clear in the written statement that on 16.08.1991, the husband and mother-in-law of the plaintiff have jointly executed an Irrevocable General Power of Attorney in favour of Sri.T.M.Venkataswamy and the said G.P.A.Holder Sri.T.M.Venkataswamy has formed the layout and sites to the extent of 40 guntas in survey Nos.71/7 and
72. Further, he has sold the said residential sites to various purchasers. The Site No.5 has sold to the defendant No.1 in the present suit. The photographs produced in this case clearly depicts the change of nature of property and it is not property set out in the plaint or in O.S.No.9994/2005 14 the boundary and revenue records produced by the plaintiff. The nature of property is converted to residential sites and layout and sold to the purchasers, but it is not specifically pleaded in the plaint. The copies of RTC, Katha, Tax Paid Receipts does not depict the conversion of the property and it is not specifically giving boundaries for its identification as per Order VII Rule 3 of C.P.C. The G.P.A.Holder Sri.T.M.Venkataswamy is not made as a party to transpire the facts as to the nature of property under Order XVIII Rule 4 of C.P.C. This is also affecting the plaintiff's case. When the G.P.A.Holder Sri.T.M.Venkataswmy acted upon the Irrevocable General Power of Attorney, what residuary right held by the husband of plaintiff to transfer through Gift Deed, dated:2.04.2004 is not explained so as to show the title, interest and possession over the property. Therefore, the equitable relief of injunction could not be conferred under Sections 38 and 39 of Specific Relief Act.
17. Even under Section 41 of Specific Relief Act, it is clearly enunciated that when equally efficacious relief can certainly be obtained by any of the party in usual other mode of proceedings, the relief of injunction could not be conferred unless there is breach of trust. The contract or other disposition of right and interest over the property also O.S.No.9994/2005 15 stands discharged when merger of the right is conferred. That it accrues when an inferior right accruing to a party amalgamates into superior rights ensuing to the same party. The suit is to be filed to specified schedule property as per Section 7 Rule 3 of C.P.C., which reads thus :
" Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the Court to draw a proper decree as required by Order 20 Rule 3 of the CPC" .
18. At the time of filing of this suit, the plaintiff has not ascertained his right and the Gift Deed under which the plaintiff is claiming possessory right is also subject of dispute in O.S.No.4712/2004 filed for partition. Therefore, the disputed possession and right cannot be conferred with the equitable relief of injunction. It is held in the dictum reported in (2018) 2 Indian Civil Cases 304 (Karnataka) (Vishwanath Gangadhar Savanur .Vs. Samanath Basvaraj Savanur), Their Lordships have clearly observed as under :
"Where property has not yet vested with plaintiff, no interest has been created in it, the suit is pre-mature, is not maintainable. Plaint shall be rejected".
O.S.No.9994/2005 16 Therefore, on this score also, the suit is not maintainable.
19. In RSA 160/2015, our Hon'ble High Court of Karnataka in "Gangappa .Vs. Muniyanna's" case, Their Lordships have clearly observed that when the property held as joint family property, the plaintiff cannot be declared as an absolute owner and the permanent injunction cannot be granted. The plaintiff is not entitled for decree for permanent injunction, as no injunction against co-owner could be granted. It is also observed that the plaintiff has failed to prove his contention that the suit property was his absolute property. According to the plaintiff himself, there was no partition in the family, in such scenario, he cannot claim declaration against co- owner that he is the absolute owner of the property, so also he cannot seek injunction against co-owner. Therefore, in this case, in view of the partition suit determines in O.S.No.4712/2004, this suit is not maintainable and keeping the suit stayed indefinitely does not serve any purpose. Hence, in view of the disposal of the suit in O.S.No.4712/2004, dated:22.01.2016 before CCH No.16, this suit is liable to be dismissed.
20. Even the suit filed without declaratory relief, in respect of right, title and interest of the property, the suit O.S.No.9994/2005 17 for bare injunction is not maintainable. It is more so, when the right of plaintiff in O.S.No.4712/2004 is determined by a decree as to Gift Deed relied by the plaintiff in this case is not binding on the plaintiff therein.
21. The order in O.S.No.4712/2004 operates as res- judicata and estoppel to the limited extent as to validity of Gift Deed relied by the plaintiff in this suit, since the adjudication and finding of the fact on issue is internally related to the Gift Deed and its binding nature to the extent of share of the plaintiff and other defendants. Section 6 of Hindu Succession Act reads thus :
Devolution of interest in coparcenary property. --
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara O.S.No.9994/2005 18 coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
22. The plaintiff has not sought for declaration that the G.P.A., and the Sale Deed executed by her husband and mother-in-law are null and void, unless those deeds are nullified the reliance placed on the Gift Deed is not justifiable. Further more, the Gift Deed does not bind the share of the plaintiff in O.S.No.4712/2004 is clearly ordered in that Judgment and Decree. Hence, I answer the Addl. Issue No.1 accordingly.
23. ADDL. ISSUE No.2: In the result, I proceed to pass the following :
O.S.No.9994/2005 19 O R DE R The suit of the plaintiff is dismissed, as not maintainable in view of disposal of O.S.No.4712/2004 for partition and apportioning the share of the parties over the schedule property.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 29th day of March 2021) (K.SUBRAMANYA) LXVII Addl.City Civil and Sessions Judge, BENGALURU.
'A' SCHEDULE PROPERTY All that piece and parcel of Agricultural Property bearing survey No.71/7, situated at Hongasandra Village, Begur Hobli, Bengaluru South Taluk, measuring 0.26 guntas and one guntas kharab and bounded on :
East by : Government Chanal
West by : Land belonging to Chikkathimmaiah
North by : Ningappa's Land
South by : Land belongs to H.M.Manjunath
'B' SCHEDULE PROPERTY
O.S.No.9994/2005
20
A portion of the property bearing survey No.71/7, situated at Hongasandra Village, Begur Hobli, Bengaluru South Taluk, building with compound measuring East to West: 40 Feet and North to South: 30 Feet and bounded on :
East by : Plaintiff's property
West by : Plaintiff's property
North by : Plaintiff's property
South by : Plaintiff's property
(K.SUBRAMANYA)
LXVII Addl.City Civil and Sessions Judge, BENGALURU.