Karnataka High Court
Smt Nalini K vs Sri Muniraju on 20 December, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF DECEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.9217/2013(CPC)
BETWEEN:
Smt Nalini K
W/o R. Vittalamurthy
Aged about 50 years
R/at NO.U-3,
15th Cross Road,
Maruthi Layout,
Palace Guttahalli,
Bangalore - 560 003 ...Appellant
(By Sri Mahabaleshwara Rao, Advocate)
AND:
Sri Muniraju
S/o Late Hemanna
Aged about 29 years,
R/at No.85, Nanjundappa Compound,
Geddalahalli,
Bangalore - 560 094
... Respondent
This Appeal is filed Under Section 173(1) of MV
Act against the judgment & award dated 21.10.2013
passed on I.A.No.1 in O.S.NO.5800/2013 passed on the
file of the 5th Additional city Civil and Sessions Judge
(CCH-13), Bangalore, dismissing IA No.1 filed u/O 39,
Rule 1 and 2 of CPC.
2
This Appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
This is a plaintiff's appeal challenging the order passed on I.A.No.1 by the 5th Additional City Civil Judge, Bangalore, in O.S.No.5800/2013, whereunder application filed by the plaintiff under Order 39 Rule 1 and 2 of CPC has been rejected.
2. I have heard the arguments of Sri Mahabaleshwara Rao, learned counsel appearing for appellant/plaintiff and Sri Diwakar, learned counsel appearing on behalf of Sri K. Suman, for caveat/respondent. Perused the order under challenge as also documents produced along with I.A.No.2/2013.
3. It is the specific case of plaintiff that she is the absolute owner in possession and enjoyment of suit schedule property of residential site bearing No.4, morefully described in the plaint schedule having acquired title to the same under a registered sale deed 3 dated 30.08.2005. It is contended thereafter she has got the khatha registered in her name with the Bruhat Bangalore Mahanagara Palike (hereinafter referred to as 'BBMP' for short). She has also contended that she has paid the betterment charges in the year 2004 to BBMP amounting to Rs.22,500/- and has been paying taxes after obtaining khatha of suit schedule property in her name and when she attempted to put up a new building after obtaining sanctioned plan, which was duly approved by the Municipal Authorities, defendants tried to interfere with the same and as such she prayed for grant of temporary injunction.
4. she has contended that defendant started interfering with the construction work when it was midway and as such, suit for injunction has been filed since plaintiff was finding it difficult to resist the attempted interference of defendant, an application I.A. No.1 came to be filed under Order 39 Rule 1 and 2 seeking temporary injunction. Defendant on service of suit summons appeared and filed the written statement 4 as well as objections denying the averments made in the plaint and contended that he is the great grandson of deceased owner Smt. Bhadramma and he is possessing the original title and deeds to the suit schedule property and at no point of time his great grandmother Smt. Bhadramma had alienated the property and hence, he denied the contents of plaint as well as affidavit supporting application for injunction.
5. Trial Court after taking note of the pleadings of parties dismissed the application on the ground that plea of defendant about Smt Bhadramma having expired in the year 1977-1978 deserves to be accepted and as such sale-deed could not have come into existence in the year 2005. It is this order, which is assailed in the present appeal. It is contended by learned counsel appearing for appellant that Trial Court had advanced the case to 01.10.2013 and adjourned the matter to 09.10.2013 and arguments were partly heard on 09.10.2013 and it was adjourned to 21.10.2013. It is contended that appellant was under the impression 5 that the case was adjourned for the purpose of further arguments and submits that without considering further arguments Trial Court has passed an order on 21.10.2013 without affording further opportunity to plaintiff. It is also submitted that appellant/plaintiff intended to file further documents and since the order has been passed by Trial Court, application has been filed in this appeal along with additional documents and prays for this Court to take note of these documents and examine the plea of plaintiff for grant of temporary injunction.
6. Per contra, Sri Diwakar, learned counsel appearing for respondent / defendant would support the order in question and contends that when defendant has denied the title of plaintiff and when the suit in question is only for bare injunction, it would not be safe to permit the plaintiff to put up construction by granting an order of temporary injunction since claim of defendant if accepted, plaintiff could claim equities. Hence, he seeks for dismissal of appeal. 6
7. Having heard the learned Advocates appearing for the parties and on perusal of order under challenge as well as documents produced along with I.A.No.2/2013, I am of the considered view that following points would arise for my consideration:
i. Whether application I.A.No.2/2013 is required to be allowed?
ii. Whether order passed by Trial Court
in O.S.No.5800/2013 dated
21.10.2013 dismissing the application for temporary injunction, is to be sustained or set aside?
iii. What order?
8. Facts already narrated hereinabove would suffice and further delving upon these facts would be repetition and as such they are not dealt in this appeal. RE. POINT No.1:
9. This application has been filed under Section 151 of CPC seeking permission to produce documents 7 annexed with the list. The documents as specified in the list are as under:
Sl.
Particulars No. 1 Sale Deed dated 30-08-2005. 2 Khatha Certificate and Extract issued by BBMP dated 04-03-2013 3 Tax Paid Receipt dated 18.05.2013 for the year 2013-14.
4 Sanctioned Plan dated 16.03.2013. 5 Award Notice issued by BDA to Smt. Bhadramma in case No.653/78-79 and the copy of the Award passed by BDA in respect of Sy.No.17/3 measuring 29 guntas at Gedalahalli village.
6 General Power of Attorney dated 29.07.1985 executed by Venkatesh in favour of Sri Hanumanthegowda relating to property bearing Sy.No.17/3 measuring 29 guntas situated at Gedelahalli Village.
7 Affidavit dated 29.07.1985 executed by Venkatesh stating that he has sold land bearing Sy.No.17/3 situated at Gedelahalli Village and others survey numbers for Rs.3,90,000.00. 8 General Power of Attorney dates 23.08.1985 executed by Hanumanthgowda in favour of Smt.Nalini (Plaintiff) for Stie No.4 in Sy.No.17/3.8
Gedalahalli Village (Original). 9 Betterment Charge Paid Receipt dated 30.09.2004.
10 Katha Registration Notice dated 18.10.2004 issued by BMP in the name of K.Nalini (Plaintiff) in respect of Site No.04 assessing the property from the year 97-98 to 2004-05 (original). 11 Katha Endorsement dated 23.02.2006 issued by BMP in the name of Smt. K.Nalini (Plaintiff) (Original).
12 Stamp Duty Charge collected receipt issued byBBMP in the name of Smt.K.Nalini, (Plaintiff)(Original) 13 Katha Certificate dated 31.12.2004 issued by BMP in the name of Nalini.K, as Holder katha (Original) 14 Katha Certificate dated 03.06.2006 issued by BMP in the name of Nalini.K (Original) 15 Katha Extract dated 03-06-2006 issued by BMP in the name of Nalini.K (Original) 16 Tax Paid Receipt for the year 1997-98 to 2003- 04, 2004-05, 2005-06, 2011-12, 2013-14 17 GPA dated 23.08,1985 executed by Hanumanthe Gowda in favour of Sri Shet for Site No.1 in Sy.No.17/3.
18 Affidavit dated 23.08.1985 executed by Hanumanthegowda.9
19 Katha Registration Notice issued by BMP dated 18.10.2004 to Sri Shet.
20 Sale Deed dated 27.07.2006 in the name of Smt. S.Rani in respect of Site No.1 is Sy.No.17/3. 21 Katha Certificate and KathaExtract issued by BBMP in the name of S.Rani.
22 Written Statement of defendant.
The documents at 1 to 5, 9 to 16, 19 to 21 are all issued by the statutory authorities and first document is a sale deed dated 30.08.2005. Objections have not been filed by respondent to said application obviously because of these documents had already been produced by plaintiff before Trial Court. In that view of the matter, I do not find any impediment for allowing this application. Accordingly, point No.1 is answered in the affirmative and I.A.No.2/2013 is hereby allowed. 10 RE. POINT No.2:
10. For considering prayer for grant of temporary injunction, three essential ingredients which requires to be considered are:
i. prima facie case ii. balance of convenience iii. irreparable loss and injury.
In the instant case plaintiff has contended that she has acquired title to property under a registered sale deed dated 30.08.2005. Pursuant to said sale deed khatha has been made over to plaintiff's name as per khatha certificate issued by BBMP and she has paid taxes also.
In fact these documents were produced before Trial Court and same has been reiterated by plaintiff before this Court, which would indicate by virtue of power of attorney executed way back in the year 1995 plaintiff had obtained holder khatha in the year 2004 i.e., 18.10.2004 and she has been issued regular khatha in the year 2006 i.e., 23.02.2006. She has paid the betterment charges on 30.09.2004 in a sum of 11 Rs.22,500/- to BBMP. These documents prima facie would indicate that plaintiff is in possession and enjoyment of suit schedule property and as such, there is a prima facie case in favour of plaintiff.
11. As already noticed hereinabove the plea of defendant that great grandmother of defendant had expired way back in the year 1967 itself swayed in the mind of Trial Court to dismiss the application for temporary injunction without considering as to whether said plea is prima facie established by defendant as against prima facie case established by plaintiff. The recitals in registered document has to be accepted and presumption would arise with regard to the contents of said document and any amount of oral plea contrary to recitals in the registered document, cannot be eschewed by this court in view of the Section 92 of the Evidence Act. This aspect has been lost sight of by Trial Court. In that view of the matter, at this stage it can be held that there is a prima facie case in favour of plaintiff and 12 defendant has not been able to demonstrate that Smt. Bhadramma had expired in the year 1967 itself.
12. Undisputedly, plaintiff has commenced construction in the suit schedule property as could be seen from photographs made available by the learned counsel appearing for plaintiff. It is in the midway and columns have already come up as could be seen from the said photographs. This construction is pursuant to duly sanctioned plan issued by BBMP, which is also available in the documents produced alongwith I.A.No.2/2013 as per document No.4.
13. One another fact which requires to be noticed is suit schedule property and adjacent property undisputedly belonged to great grandmother of defendant Smt Bhadramma and said land was the subject matter acquisition by BDA in the year 1978-79 and notice of award had been issued to said Smt Bhadramma and an award had also been passed on 05.06.1981 by the Additional Land Acquisition Officer - BDA, Bangalore, by awarding a compensation of 13 Rs.10,005/-. This is yet another factor which would clearly indicate that said Smt Bhadramma who is the great grandmother of defendant and vendor of plaintiff had been divested of her title way back in the year 1978-79 itself. This fact was also not taken note of by Trial Court, though said document was very much available on record. Thus, balance of convenience is in favour of plaintiff and an order of temporary injunction if refused would result in plaintiff being put to irreparable loss and injury, which cannot be compensated in any manner whatsoever. On other hand, defendant having not established a prima facie case except contending that he is a predecessor in title of Smt.Bhadramma, there was no other prima facie material available to arrive at a conclusion that he continued to hold title to the property in question or possession having been continued with him. Thus, irreparable loss and injury that would be caused to plaintiff would be much more than the injury that would be caused to defendant, if injunction is refused. 14
14. In that view of the matter, I pass the following:
ORDER i. Appeal is hereby allowed.
ii. Order passed by 5th Additional City Civil and Sessions Judge (CCH-13), Bangalore, in O.S.No.5800/2013, is hereby set aside.
iii. I.A.No.1/2013 filed by plaintiff before Trial Court is hereby allowed.
iv. It is needless to state that observations made by this Court in course of this order would necessarily be confined to grant of temporary injunction and Trial Court shall not be influenced by any observations made by this Court.
Sd/-
JUDGE DR