Karnataka High Court
B. M. Devarajappa vs Smt. S. Gayathri on 18 January, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL No. 9386 OF 2017 (CPC)
BETWEEN
1. B.M.Devarajappa,
President,
M/s. Dev-In National School,
No.03/1, Kodigehalli Main Road,
Adjacent to Cauvery College,
60 feet Road,
Sahakaranagar,
Bangalore-560092.
2. Cauvery Social and Education Trust ®,
No.03/1, Kodigehalli Main Road,
Adjacent to Cauvery College,
60 feet Road,
Sahakaranagar,
Bangalore-560092.
Rep. by Secretary
Smt. Indira.
...Appellants
(By Sri. Satish T.S., Advocate)
AND
Smt. S.Gayathri,
W/o. Sri. K.V.Shivakumar,
Aged about 59 years,
2
Residing at No.3,
Rajatha Church Road,
Basavanagudi,
Bangalore-560005.
.....Respondent
(By Sri. Surya Kanth C.S., Advocate for C/R)
This MFA is filed under Order 43 Rule 1(r) of CPC,
against the order dated 10.11.2017 passed on I.A.No.1 &
2 in O.S.No.5839 of 2017 on the file of the LIX Additional
City Civil & Sessions Judge, Bangalore, allowing I.A.No.1
& 2 filed under Order 39 Rules & 2 read with Section
151 of CPC.
This MFA coming on for admission, this day, the
court delivered the following:
JUDGMENT
The defendants in O.S.5839/2017 on the file of LIX Addl. City Civil Judge, Bengaluru City. Bengaluru, have preferred this appeal aggrieved by the order dated 10.11.2017 passed in the said suit on I.A.Nos. I and II filed under Order XXXIX Rules 1 and 2 of the Civil Procedure Code ('CPC' for short). The trial court has passed an order of temporary injunction restraining the defendants from obstructing lawful possession of the 3 plaintiff over the suit schedule property and has further directed the defendants to remove the compound wall constructed around the suit property within thirty days.
2. The plaintiff instituted the above suit for the relief of permanent injunction and mandatory injunction in respect of a vacant site bearing No.4 out of katha No. 262B/4 of Kothihosahalli Village, Yelahanka Hobli, Bengaluru North Taluk, measuring East to West 60' and North and South 80', in all 4800 sq. ft which is now situated in Sahakaranagar, Bengaluru along with 6225 sq. ft of common area. This property will be referred to as 'the suit property' hereinafter.
3. The plaintiff has pleaded that 25 guntas of land in Sy. No. 3/1 of Kothihosahalli earlier belonged to one N.N.Srinivasaiah and his wife K.V.Sujatha. They formed 4 sites in the said land, namely 262B/1, 262B/2, 262B/3 and 262B/4. Her husband Shivakumar purchased two sites bearing Nos. 262B/1 and 2 and 4 daughter Sunitha purchased a site bearing No. 262B/3. She purchased site bearing No. 262B/4. The sale deeds were executed on 2.12.1995. On 12.4.2004 her husband Shivakumar and daughter Sunitha sold their respective sites to M.Venkatesh and M.V.Muniraj. The plaintiff retained her site. Till 2014 she was regularly going near the suit property for its supervision. For about seven months she could not visit the suit property owing to her ill-health. On 31.8.2015 when she went there, to her surprise she saw a peripheral compound having been constructed around the entire 25 guntas of land including her site. She requested the defendants to remove the compound. When the defendants did not heed to her request, she issued a legal notice to them. Since defendants did not remove the compound and started interfering with her possession, she filed a suit.
4. Along with the plaint she presented two applications, one for temporary injunction to restrain the 5 defendants from interfering with her possession and another application for temporary mandatory injunction to remove the compound as it obstructed the way to her property.
5. The defendants do not dispute that the land in Sy. No.3/1 belonged to Srinivasaiah. They state that on 11.6.2004 Srinivasaiah sold 25 guntas of land to one D.Santosh Kumar, the son of the first defendant. In the same survey number, there was another bit of land measuring 3 guntas. It was also sold to Santoshkumar on the same day. Totally Santosh Kumar purchased 28 guntas of land in Sy. No. 3/1. On 19.12.2005 the second defendant obtained permission from the Deputy Commissioner, Bengaluru District, for purchasing agricultural land. On 16.1.2006, Santosh Kumar sold 28 guntas of land to second defendant. Defendant No.2 also purchased another bit of land measuring 3 guntas in Sy. No. 3/2 from Venkatesh and Munithayamma. On 6 19.4.1996 one Alfreeda D'Souza sold 9 guntas of land in Sy. No.3/1 to the second defendant. On 7.10.2008, defendant 2 obtained conversion from agricultural to non-agricultural purpose. It obtained katha from Bruhath Bengaluru Mahanagara Palike and constructed a school building. Thus, the second defendant claims to be in possession of the entire extent of land in Sy. No. 3/1 and 3/2. The defendants also contended in para 10 of the written statement on 20.9.2007 Venkatesh, Muniraju and the plaintiff executed a sale deed in respect of a non-existing property bearing No. 267/266/B1, 267/266/B2, 267/266/B3. After executing of these sale deeds, the plaintiff, her husband and daughter are not traceable at all. Thus, they cheated the second defendant.
6. I have heard the arguments of the learned counsel for the appellants/defendants and the learned counsel for the respondent/plaintiff.
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7. A perusal of the impugned order shows that the learned trial judge arrived at a conclusion that the plaintiff was able to make out a prima facie case for grant of temporary injunction in the background of the circumstances that can be made out from the documents produced by either side that the purchase of suit property by the plaintiff from Srinivasaiah and his wife Sujatha was earlier in point of time. The plaintiff's sale deed bears the date 2.12.1995. The plaintiff's husband and daughter also purchased other sites in Sy. No. 3/1 from the same vendors. If Srinivasaiah sold all the four sites formed in Sy. No. 3/1 on 2.12.1995 itself, the sale deed executed by the very same Srinivsaiah in the year 2004 in favour of Santosh Kumar was null and void. Therefore, the defendants contention that they acquired interest over 25 guntas of land under the sale deed dated 11.6.2004 and another sale deed executed by Santosh Kumar in favour of the second defendant on 8 3.1.2006 could not been given any importance. The trial judge applying the doctrine of priority, held that the plaintiffs sale deed should be considered as valid and since it was a vacant site, it could be said that she was in possession on the date of the suit. The learned trial judge further held that the defendants constructed a compound around the entire land causing obstructions to the plaintiff's movement to go to her site. Since her movements had been curtailed because of construction of the compound, she was entitled to an order of temporary mandatory injunction for removal of the compound. Learned trial judge placed reliance on the judgment of the Supreme Court in AIR 1990 SC 8670.
8. The learned trial judge further held that since the possession of the suit property was with the plaintiff and that the defendants documents would not establish their valid right, and that compound wall has been constructed by the defendants, the plaintiff's right to 9 enjoy the suit property has been infringed. Therefore, balance of convenience lies in her favour and if the compound wall is not removed, she will face difficulty to possess and enjoy her property. With these conclusions, the learned trial judge allowed the applications for temporary injunction.
9. It is well settled principle that whenever an appeal is preferred challenging the order passed on an application filed under Order XXXIX Rules 1 and 2 CPC, the appellate court should not interfere unless the order challenged appears to be capricious or arbitrary. The learned counsel for the appellants argues that the plaintiff was not in possession of the suit property on the date of the suit. The second defendant is the absolute owner in view of the sale deeds executed by the erstwhile owner Srinivasaiah in favour of one D. Santosh Kumar and another sale deed executed by D.Santosh Kumar in favour of second defendant. The entire land in 10 Sy.No.3/1 and Sy.No.3/2 belongs to the second defendant and there is a school building. Therefore the plaintiff cannot contend to be in possession of the suit property on the date of the suit. According to him the trial court has not exercised discretion properly.
10. The learned counsel for the appellants submits that the trial court has issued temporary mandatory injunction without considering the fact that the compound has been constructed around the entire 25 guntas of land. Such an order cannot be passed as it amounts to granting main relief itself.
11. The learned counsel for the respondent argues that the sale deeds executed in favour of the plaintiff, her husband and daughter were earlier in point of time. The second defendant also traces its title through the erstwhile owner Sri. Srinivasaiah. If according to the second defendant the entire land in Sy.No.3/1 had been sold by Srinivasaiah in favour of D.Santosh Kumar on 11 11.06.2004 itself, there is no need to obtain a second sale deed in respect of the same property. He argues that the trial court has properly exercised its discretion noticing the title of the plaintiff being earlier in point of time. With regard to granting of mandatory injunction also, the trial court has noticed the fact that the compound obstructs the plaintiff's access to the suit property. The trial court has placed reliance on the judgment of the Hon'ble Supreme Court. Therefore under these circumstances there is no need to interfere with the impugned order. In support of his argument as to how the possession with regard to vacant land has to be inferred, the learned counsel has placed reliance on a judgment of the Hon'ble Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LR's and others [AIR 2008 SC 2033].
12. Now having regard to the transactions of sale, it can be very well said that the entire 25 guntas land in 12 Sy.No.3/2 earlier belonged to Srinivasaiah. On 2.12.1995 this Srinivasaiah and his wife Sujatha sold the four sites formed there to the plaintiff, her husband and daughter. While plaintiff's husband and daughter sold their respective sites to M. Venkatesh and Muniraju, she retained the site purchased by her. The sale deeds produced by the defendants also show that the said Srinivasaiah sold the very same land on 11.6.2004 to one D. Santosh Kumar, the son of 1st defendant. This sale was registered on 14.6.2004. So Srinivasaiah having sold this property to the plaintiff and her husband and daughter on 2.12.1995, he could not have executed sale deed in respect of same land subsequently on 11.6.2004. The learned counsel for the appellant submits that D. Santosh Kumar purchased agricultural land by obtaining permission from the Deputy Commissioner. According to him, the land purchased by D. Santosh Kumar is different from the lands purchased by the plaintiff, her husband and 13 daughter. The written statement does not state that the property purchased by Santosh Kumar is different from the property purchased by plaintiff, her husband and daughter. Even if this is the specific defence, it has to be decided by the trial court after trial. But at this stage what appears from the sale deeds is that Srinivasaiah sold 25 guntas of land on 2.12.1995 and this very same land appears to have been purchased by D. Santosh Kumar. Therefore if the trial court has come to conclusion that the principles of priority of interest as envisaged in Section 48 of Transfer of Property Act is applicable, it can be said that the trial court has assessed the materials on record properly for grant of temporary injunction. I do not find any irregularity or infirmity in it.
13. According to the plaintiff her property is a vacant land. The appellants counsel contended that suit property is in possession of the defendants because of 14 existence of a school building and construction of the compound around the entire land. As to how possession over vacant land can be inferred is made clear by the Hon'ble Supreme Court in the case of Anathula Sudhakar (Supra).
"13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in 15 issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide 16 the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs".
(underlining by me)
14. Therefore applying this principle to the facts of the case, it can be said that since the said property is a vacant land and that the title of the plaintiff can be inferred, it can be presumed that the plaintiff is in possession over the suit property. This finding of the trial court cannot be said to be perverse, illegal or capricious.
15. With regard to granting of temporary mandatory injunction the principle is that it cannot be granted unless an extreme circumstance is made out. Now that it is undisputed fact that compound is constructed around the entire property by the second defendant, the plaintiff finds it difficult to have access to her property. The defendant cannot obstruct her access. Having regard to this fact the trial court has passed an 17 order to remove the compound saying that it is just order under the facts and circumstances. I find that the order of the trial court does not suffer from infirmity. In the facts and circumstances, discretionary power has been exercised properly and therefore there is no need to interfere with the impugned order. Consequently, appeal is dismissed.
Sd/-
JUDGE ckl/sd