Karnataka High Court
Mr.B.Satish Naidu vs Akashvani Vasathi Nirmana Sahakara ... on 9 March, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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RFA No. 369 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 369 OF 2021 (INJ)
BETWEEN:
MR.B.SATISH NAIDU
S/O LATE RPASA RAO
AGED ABOUT 42 YEARS
RESIDING AT NO.9, AYYAPPA LAYOUT,
KATIGENAHALLI, BAGALUR MAIN ROAD,
BANGALORE 560 063.
...APPELLANT
(BY SRI. S V, GIRIDHAR.,ADVOCATE)
AND:
1. AKASHVANI VASATHI NIRMANA SAHAKARA SANGA NIYAMITHA
AKASHVANI BUILDING,
RAJBHAVAN ROAD,
BANGALORE 560 001.
Digitally
signed by
CHANDANA 2. D.RAMESH
BM 481, 4TH CROSS, SHASHTRINAGAR,
Location: BANGALORE 560 028.
High Court
of Karnataka
3. P.C.ANANDA LAKSHMI
BY HER POWER OF ATTORNEY HOLDER
MR.K.KASIAPPAN,
RESIDING AT 15, SANKALPA,
5TH MAIN CHHAMUNDESHWARI LAYOUT,
VIDYARANYAPURA POST,
BANGALORE 560 097.
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RFA No. 369 of 2021
4. MR.SREENIVAS REDDY
BY POWER OF ATTORNEY HOLDER
MRS.LALITHA
RESIDING AT 77, 18TH CROSS,
20TH MAIN ROAD, VIJAY NAGAR,
BANGALORE 560 040.
5. MR. C.J.RAMESH
S/O MR. C.J. JAYACHANDRA SHETTY
RESIDING BAZAR STREET,
CHANNRAYAPATTANA TOWN,
HASSAN DISTRICT 573116.
...RESPONDENTS
(BY SRI. HARISH GANAPATHI .,ADVOCATE FOR R-2 & R-5
SMT. MEENAKSHI K.K, FOR
SRI. SUNDARRAMAN, ADVOCATE FOR R-3
R-1 SERVED, V/O/DT: 06.09.2022 NOTICE TO R-4 IS H/S)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, 1908 AGAINST
THE ORDER DATED 13.01.2021 PASSED ON IA No. III IN OS.No.8098/2018
ON THE FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
BENGALURU, ALLOWING THE IA No. III FILED UNDER ORDER VII RULE 11
R/W SECTION 151 OF CPC FOR REJECTION OF PLAINT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment and decree dated 13.01.2021 passed in O.S.No.8098/2018 on the file of XX Addl.City Civil and Sessions Judge, Bengaluru, whereby the application I.A.No.3 filed by respondents 2 to 5 - defendants 2 to 5 -3- RFA No. 369 of 2021 under Order 7 Rule 11 CPC seeking rejection of the plaint was allowed by the trial court, pursuant to which, the suit filed by the appellant - plaintiff was dismissed by the trial court.
2. Heard learned counsel for the appellant and learned counsel for the respondents and perused the material on record.
3. The material on record discloses that the appellant -
plaintiff instituted the aforesaid suit for permanent injunction and for other reliefs against the respondents - defendants in relation to the suit schedule immovable property. The said suit having been contested by the respondents - defendants, defendants 2 to 5 filed the instant I.A.No.3 seeking rejection of the plaint inter alia contending that the same does not disclose the cause of action.
The said application having been opposed by the appellant -
plaintiff, the trial court proceeded to pass the impugned order allowing I.A.No.3 and consequently, rejecting the plaint and dismissing the suit, aggrieved by which, the appellant is before this Court by way of the present appeal.
4. Before adverting to the rival contentions, it would be necessary to extract the plaint averments, bearing in mind the well -4- RFA No. 369 of 2021 settled position of law that for the purpose of considering the application under Order 7 Rule 11 CPC, it is only the plaint averments and the documents produced by the plaintiff without any addition or subtraction that can be looked into by the Court. It is equally well settled that for the purpose of considering such application, neither the contentions of the defendants urged under Order 7 Rule 11 CPC nor the documents relied upon by the defendants can be looked into and no extraneous material or contentions can be taken into account for the purpose of adjudication of such application.
5. The plaint filed under Order 7 Rule 1 of CPC reads as under;-
The Plaintiff above named most respectfully submits as under:
1. The addresses of the parties for the purpose of service of court notice, summons, etc., are as shown as the cause title supra. The address of the Plaintiff is also that of his Counsel Sri.S.V.Giridhar, ([email protected]), Giridhar & Co., Advocates, # 101, Janak Residency, # 2, Kumara Krupa Road, Bangalore - 560 001.
2. The Plaintiff submits that one N. Krishna Murthy was the sole and absolute owner of the lands in Survey No.4 of Chikka Bettahalli Village, Yelahanka Hobli, Bangalore -5- RFA No. 369 of 2021 North Taluk, totally measuring in an extent of 9 Acres 10 Guntas. The said N. Krishna Murthy sold the five distinct portions of the land in Survey No.4, which portions are adjacent to each other vide Deed of Sale as detailed hereunder:
(a) Deed of Sale executed by N. Krishna Murthy on 05.12.1979 in an extent of 4.4 Guntas in favour of Dr.V.S.Malur duly registered as Document No.4333/1979-80 of Book I, Volume 3165 at Pages 6 to 8 in the Office of the Sub-Registrar, Bangalore North Taluk. The said Deed of Sale is produced herewith as at Document No.1.
(b) Deed of Sale executed by N. Krishna Murthy on 05.12.1979 in an extent of 2.2 Guntas in favour of Smt.Maithili duly registered as Document No.4334/1979-80 of Book I, Volume 3166 at Pages 5 to 6 in the Office of the Sub-Registrar, Bangalore North Taluk. The said Deed of Sale is produced herewith as at Document No.2.
(c) Deed of Sale executed by N. Krishna Murthy on 05.12.1979 in an extent of 2.2 Guntas in favour of G.Krishna Murthy duly registered as Document No.4335/1979-80 of Book I, Volume 3167 at Pages 46 to 48 in the Office of the Sub-Registrar, Bangalore North Taluk. The said Deed of Sale is produced herewith as at Document No.3.
(d) Deed of Sale executed by N. Krishna Murthy on 05.12.1979 in an extent of 2.2 Guntas in favour of Smt. P Nalini duly registered as Document No.4336/1979-80 of Book I, Volume 3174 at Pages 56 to 58 in the Office of the -6- RFA No. 369 of 2021 Sub-Registrar, Bangalore North Taluk. The said Deed of Sale is produced herewith as at Document No.4.
(e) Deed of Sale executed by N. Krishna Murthy on 12.12.1979 in an extent of 4.4 Guntas in favour of P.Nalini duly registered as Document No.4735/1979-80 of Book I, Volume 3166 at Pages 193 to 195 in the Office of the Sub-
Registrar, Bangalore North Taluk. The said Deed of Sale is produced herewith as at Document No.5.
3. Effectively an extent of 15.4 Guntas was conveyed under the aforementioned Deeds of Sale by the said N.Krishnamurthy in favour of the said, four purchasers. The said five portions so conveyed in favour of the said four purchasers are adjacent to each other and constitute a single composite property.
4. The Plaintiff submits that it appears that the Defendant No.1 Society acquired an extent of 2 Acres 20 Guntas in Survey No.4 of Chikka Bettahalli Village, Yelahanka Hobli, Bangalore North Taluk. The Plaintiff herein is not aware of the manner of acquisition by the Society of the said lands. The Plaintiff is also not aware as the existence, identity and location of the said extent of 2 Acres 20 Guntas or the manner in which the said extent of 2 Acres 20 Guntas was acquired by the Society. To the best of the knowledge of the Plaintiff herein, the Defendant Society has not purchased the extent of 2 Acres 20 Guntas from the original owner Sri N. Krishna Murthy. Additionally, a perusal of the various records, it appears that there is no Deed of -7- RFA No. 369 of 2021 conveyance of the lands in Survey No.4 in any portion, whatsoever, much less 2 Acres 20 Guntas in favour of the Defendant No.1. The Defendant No.1 has merely contended that the said extent of 2 Acres and 20 Guntas is acquired by the Government of Karnataka for the benefit of the Society and which statement merely benefits the Government and till date no documents are available to demonstrate that the Society has acquired an extent of 2 Acres and 20 Guntas in the said lands in Sy.No.4 and there is neither available any Deed of Sale or other Deed of conveyance of the said extent so claimed by the Society. In any event, the conveyance or allotment or acquisition of the said lands by the Government is of a separate and distinct extent of land and has no nexus or overlapping with the extent conveyed to the said four purchasers aforementioned.
5. It appears that the Defendant No.1 claiming to be an owner of the 2 Acres 20 Guntas in Survey No.4 attempted to interfere with the peaceful possession and enjoyment of the aforementioned purchasers from N Krishna Murthy under the Document referred to at Sl.No.1 to 5 supra. The said purchasers from N. Krishna Murthy who had purchase the various extent cumulatively in an extent of 15.4 Guntas from N.Krishna Murthy and which portions were adjacent to each other and constituted a single composite blockjoined hands in view of the threat on the part of the said Society of the interference of the peaceful possession and enjoyment instituted a suit on the file of this Hon'ble Court. The said Purchasers namely Smt. P. Nalini, Smt. Mithali, G. Krishna Murthy and Dr V.S.Malur represented by their Power -8- RFA No. 369 of 2021 of Attorney. Sri S.K.Purushotham instituted a suit against the Defendant No.1 herein in Original Suit No.798/1991 on the file of this Hon'ble Court. The said Purchasers/Plaintiffs in O.S.No.798/1991 in addition to the production of their respective Deeds of Sale, specifically stated that they are the cumulative purchasers of an extent of 15.4 Guntas and all the said portions purchased are adjoining to each other and located to the East of Survey No.4 of Chikkabettahalli Village. It was stated that the Defendant No.1 Society appears to have acquired an extent of 2 Acres 20 Guntas to the Western side of the lands in Survey No.4 and consequently it is apparent that the location of the said extent of 2 Acres 20 Guntas was specifically identified to be located in the Western side of Survey No.4 while aforementioned portions purchased by the Plaintiffs in O.S.No.798/1991 was located on the Eastern side. It was further stated that the portions purchased by the Plaintiff in O.S.No.798/1991 were adjacent to each other. On the strength of the suit came to be instituted to restrain the Defendant No.1 Society from interference of the property of the Plaintiffs to the said suit.
6. The Plaintiff herein submits that subsequent to the institution of the suit, the Defendant No.1 Society filed its Written Statement admitting the Deeds of Sale executed by N. Krishna Murthy, however, stating that the Deeds of Sale did not have clarity regarding the identity of the said sites of the said Plaintiffs. The Defendant No.1 Society did not deny that the four sites are not adjacent to each other. It was alleged that the Government had reserved an extent of the -9- RFA No. 369 of 2021 said lands in Sy.No.4 for the purpose of distribution of the sites to the Members of the Defendant No.1. No such details of allotment by the Government to the Defendant No.1 was provided.
7. The Plaintiff submits that subsequently the sole Defendant in O.S.No.798/1991 got amended the Written Statement and filed Additional Written Statement. The issues were also framed by this Hon'ble Court. Subsequently, at the intervention of friends and well-wishers, the suit in O.S.No.798/1991 came to be compromised. The essential terms and conditions of the compromise are extracted as hereunder for the immediate verification of this Hon'ble Court.
(a) The Defendant No.1 Society is the owner of 2Acres 20 Guntas belongs to the Society as seen in Annexure-A being the land sketch marked and identified and approved by the Tahsildar.
(b) The Plaintiffs in O.S.No.798/1991 are the owner of 15.4 Guntas as per the Sale Deed and has marked as identified by the City Sketch which is away from the property of the Society and which is admitted by the Society.
(c) That the Society shall not interfere with the property of the Plaintiffs.
8. In terms of the above, the suit in O.S.No.798/1991 came to be decreed in favour of said four Plaintiffs. The entire order sheet in O.S.No.798/1991 is produced as at Document No.6. The Plaint, Written Statement and
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RFA No. 369 of 2021Amended Written Statement are produced herewith as at Document Nos. 7, 8 and 9 respectively. The Issue framed in the said suit, the Compromise Petition under Order XXIII Rule 3 and the Decree drawn in the said proceedings are produced as at Document Nos.10, 11 and 12 respectively.
9. The Plaintiff submits that the four Plaintiffs in O.S.No.798/1991 jointly appointed one Sri.S.K.Purushotham who was none other than the husband of Smt. Nalini as the Power of Attorney to act for and on their behalf and in accordance with the same the said Power of Attorney Holder Sri.S.K.Purushotham who conducted the proceedings in O.S No.798/1991 on behalf of the said four Plaintiffs also conveyed the said properties purchased by Mr.V.S.Malur, Mrs.M.S.Mithili, Mr.G Krishna Murthy and his wife Smt P Nalini under the four Deeds of Sale in favour of one Sri. A P Rao in the manner as details hereunder.
(a) Deed of Sale executed on 26.10.1995 by Dr.V.S.Malur in favour of Sri. APRao, duly registered as Document No.8697 of 2001-02 dated 18.02.2002 in the Office of the Sub-Registrar, Yelahanka, Bangalore North Taluk. The said Deed of Sale is produced as at Document No.13.
(b) Deed of Sale executed on 26.10.1995 by Mrs M.S.Mithili in favour of Sri. A P Rao, duly registered as Document No.485 of 2000-01 dated 29.05.2000, of Book I, Additional Volume No.1097 at Pages 95 to 105, in the Office of the Sub-Registrar, Yelahanka, Bangalore North Taluk. The said Deed of Sale is produced as at Document No.14.
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RFA No. 369 of 2021(c) Deed of Sale executed on 26.10.1995 by Mr G.Krishna Murthy in favour of Sri. A P Rao, duly registered as Document No.487 of 2000-01 dated 29.05.2000, of Book I, Additional Volume No.1096 at Pages 114 to 124, in the Office of the Sub-Registrar, Yelahanka, Bangalore North Taluk. The said Deed of Sale is produced as at Document No.15.
(d) Deed of Sale executed on 26.10.1995 by Mrs P Nalini in favour of Sri. A P Rao, duly registered as Document No.489 of 2000-01 dated 29.05.2000, of Book I, Additional Volume No.1096 at Pages 125 to 132, in the Office of the Sub-Registrar, Yelahanka, Bangalore North Taluk. The said Deed of Sale is produced as at Document No.16.
10. A perusal of the aforementioned would reveal the same is executed by the four Plaintiffs in O.S.No.798/1991 of the portions acquired by them from N. Krishna Murthy. Under the said Deeds of Sale, it was specifically represented that as against the total extent of 15.4 Guntas or 15 ¼ Guntas the extent available is only 14.6 Guntas. It was also recorded that there was litigation in O.S.No.798/1991 and the said suit has been settled, and the property which is the subject matter of the litigation is the property which is conveyed in favour of Sri. APRao. It was further specifically stated that vacant possession was handed over and the misdescription of the property would not annul the documents. It is also relevant to state that all the aforementioned 4 Sale Deeds executed on 26.10.1995 could not be registered immediately, and the said documents were pending adjudication for undervaluation of the Stamp and
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RFA No. 369 of 2021subsequently registered upon an adjudication on 29.05.2000. The Plaintiff submits that the original of the document produced at Sl.No.13 supra has been lost and therefore the Plaintiff is not in custody of the said document. The Plaintiff has produced the Certified Copy of the said Deed of Sale as is provided by the Vendors of the Plaintiff to the Plaintiff and hence the original of the said document is not produced and incapable of production.
11. The Plaintiff submits that Sri. APRao, i.e., the purchaser under the aforementioned four Deeds of Sale expired on 12.08.1997 at Bangalore survived by his widow and two sons Anand Prahlad and Sanjay Prahlad. The Death Certificate of Sri. A P Rao is produced as at Document No.17, whilst the Genealogy of the said family by way of Affidavit sworn by the Smt. Sudha Rao is produced as at Document No.18.
12. The Plaintiff submits that Smt. Sudha Rao applied for transfer of revenue records into her name and pursuant thereto a demand was raised by the Bruhath Bangalore Mahanagara Palike. The said demand is produced as Document No.19. The said Smt. Sudha Rao has also effected betterment charges on 03.11.2017 in a sum of Rs.3,23,000/- and the receipt evidencing payment of the said sum is produced as Document No.20. Upon payment of taxes, Khatha Certificate and Khatha Extract Fee and Khatha Transfer Fee being paid the Khatha Certificate and Khatha Extract came to be issued in the name of Smt. P.Sudha Rao. The receipt for having paid the aforementioned fees, Khatha Certificate and Khatha extract
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RFA No. 369 of 2021are produced as at Document Nos.21, 22 and 23respectively.
13. The Plaintiff submits that Sri. Anand Prahlad, the elder son of Sri. A P Rao executed a Power of Attorney in favour of his younger brother Sri. Sanjay Prahlad on 12.04.2016 authorizing his younger brother to do acts, deeds and things therein including the power to sell the property purchased by his father in favour of such intending purchaser. The said Power of Attorney is produced as at Document No.24and is duly registered in the Office of the Sub-Registrar.
14. On the strength of the aforementioned Power of Attorney Smt. Sudha Rao, wife of Late Sri. A P Rao and her two sons entered into an Agreement to Sell the aforementioned portions of the lands owned and possessed by Sri. A P Rao in Survey No.4 in favour of the Plaintiff herein for a total sale consideration of Rs.1,64,00,000/- and in continuation of which appointed the Plaintiffs as their Power of Attorney. The Agreement to Sell and Power of Attorney is produced as at Document Nos.25 & 26respectively and duly registered in the Office of Sub- Registrar.
15. The Plaintiff submits that he was not aware of any of the aforementioned litigation between the original purchasers from N. Krishna Murthy and the Defendant N.1 - Society. The Plaintiff verified and ascertained that the widow and children of Sri. A P Rao were in actual physical possession of the extent purchased by Sri. A P Rao. The
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RFA No. 369 of 2021Plaintiff on verification of the documents learnt that of the suit filed in O.S.No.798/1991 and Compromise therein, therefore, was of the belief that there is no dispute in respect of the property purchased by Sri. A P Rao.
16. The Plaintiff submits that on account of the fact and considering that the extent of land physically in possession of the said Sri. A P Rao was lesser than the original extent, the Plaintiff herein requested to Smt. Sudha Rao to initiate proceedings under Section 136(2) of the Karnataka Land Revenue Act, 1964 to secure identification of the total extent of the lands. On such verification of the lands, represented initially to be in an extent of 14.10 Guntas, on measurement was ascertained by the Plaintiff that the extent available is only 12.12, i.e., 12 ¾ Guntas. On the basis of such identification and survey, the extent of land was duly identified, and the revenue records were rectified to ensure that the area of the property of Sri. A P Rao is rectified as 12.12 Guntas. The order of the Assistant Commissioner in this regard is produced herewith as at Document No.27. The Sketch pertaining to existence, identity and location of the property of Sri. A P Rao vis-à-vis lands in Survey No.4 of Chikkabettahalli Village is produced as at Document No.28. The extent of the land so identified under Document No.8 is the Suit Schedule Property to the present Suit.
17. The Plaintiff submits that upon rectification of the revenue records, the Plaintiff applied for and secured conversion at his coston the strength of Power of Attorney executed in his favour and secured the conversion of the
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RFA No. 369 of 2021Schedule Property from agricultural lands to non-agricultural residential purposes. The Official Memorandum bearing Reference No.ALN (NAY) SR/172/2016-17 reflecting upon the extent of Schedule Property and the boundaries therein is produced as at Document No.29.
18. The Plaintiff submits that subsequently, the Plaintiff secured the Sale Deed from Mrs Sudha Rao and her two children in his favour in respect of the Schedule Property measuring 12 ¾ Guntas and which property is hereunder morefully described in the Schedule to this suit and hereinafter referred to as Schedule Property for a valuable consideration. The said Sale Deed is produced as at Document No.30 and is duly registered in the Office of Sub- Registrar.
19. The Plaintiff submits that upon the purchase of the Schedule Property the Plaintiff effected payment of Khatha Transfer Fee, Khatha Certificate and Khatha Extract Fee and in pursuance thereto secured Khatha endorsement, Khatha Certificate and Khatha Extract. The Plaintiff has thereafter paid taxes in respect of the Schedule Property in his name to the Bruhat Bangalore Mahanagara Palike for the financial years 2017 -18 and 2018-19 and the same is produced as at Document Nos. 31 to 37 respectively.
20. The Plaintiff submits that he applied for and secured licence and sanction of the plan to put up construction of residential Apartments over the Schedule Property. The license dated 25.09.2018 is produced as at Document No.38. The fee in respect of securing the sanction
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RFA No. 369 of 2021of the plan,fee towards State Pollution Control Boardare produced herewith as at Document Nos.39 & 40 respectively. The sanctioned plan is produced as at Document No.41. The Plaintiff applied for issuance of commencement Certificate and effected payment of Rs.40,000/- towards same. The receipt evidencing payment of the said fee is produced as at Document No.42, while the Commencement Certificate is produced as at Document No.43. The Plaintiff has also made an Application in accordance with statutory requirements and registration with Real Estate Regulation Authority in terms of The Real Estate (Regulation and Development) Act, 2016 and the Plaintiff has secured his acknowledgement for having the successfully submitted the project for registration and the same is produced as at Document No.44. The photos of the stage of construction over the Schedule Property is produced herewith cumulatively as at Document No.45, while the Certificate under Section 65-B of the Indian Evidence Act is produced herewith as at Document No.46.
21. From the narration of the facts stated supra, it is abundantly clear that the Plaintiff is the owner in possession of the Schedule Property having purchased the same for valuable consideration. The Plaintiff upon securing, has secured the revenue records into his name and applied for and secured the sanction plan and as also Commencement Certificate to continue with the construction. The Commencement Certificate was granted to the Plaintiff on 02.11.2018. The Plaintiff, prior to the issuance of the Commencement Certificate, has carried out the necessary
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RFA No. 369 of 2021works in the Schedule Property to enable the Plaintiff to secure the Commencement Certificate, by construction of the column and foundation and on providing the same to the Authorities of the Bruhath Bangalore Mahanagara Palike who have upon verification of the location of the columnsto be in conformity with the sanctioned plan have granted theCommencement Certificate in accordance with Rules of the Bruhath Bangalore Mahanagara Palike.
22. The Plaintiff submits that the Defendants 2 to 5 claim to have purchased/allotted the sites from the Defendant No.1 and claim under the Defendant the Schedule Property. The Defendants 2 to 5 came to the Schedule Property and started interference with the construction over the Schedule Property and interfered with the peaceful possession and enjoyment of the Plaintiff of the Schedule Property. The Defendants 2 to 5 are obstructing the construction over the Schedule Property and therefore, the Plaintiff was compelled to lodge a Police Complaint on 02.11.2018. The Police Complaint is produced as at Document No.47, while acknowledgement is produced as at Document No.48.
23. The Plaintiff submits that the authorities of the Police have received a Complaint of the Plaintiff as an NCR Complaint by stating that the dispute is civil in nature. The Plaintiff submits that the Defendants are threatened to stop the work and threatened the workers at the site, and the Plaintiff is unable to proceed with the construction over the Schedule Property without the protection of this Hon'ble Court.
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RFA No. 369 of 202124. The Plaintiff submits that the Defendant No.1 has no manner of right, title and interest in the Schedule Property and therefore the Defendants 2 to 5 who claim to be purchasers of sites from the Society have no right in the Schedule Property of the Plaintiff. The Plaintiff submits that the manner of acquisition of extent by the Society is itself without any valid title and therefore, Defendants 2 to 5 cannot claim any better title than that of the Society. The Society cannot claim the title by estoppel without having acquired any extent of land legally and therefore, the Defendants 2 to 5 who claim under the Society did not have any right, title and interest in the Schedule Property. The Plaintiff's Vendors are prior title holders of the Schedule Property, and the Defendants have no right to interfere with the development of the Schedule Property. The Plaintiff has invested his hard earned money in the purchase and the development of the Schedule Property and is entitled to the protection of this Hon'ble Court. Therefore, the Defendants 2 to 5 are not entitled to interfere with the right, title and interest and enjoyment of the Plaintiff over the Schedule Property.
25. The Plaintiff submits that the Defendants are not a law abiding citizens and do not care for the rule of law. The Plaintiff has approached the jurisdictional police station and has lodged a complaint against the actions of the Defendants. The said complaint made by the Plaintiff was not acted upon by the jurisdictional police, and they have refused to come to the assistance of the Plaintiff and directed the Plaintiff to approach the competent Court as the
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RFA No. 369 of 2021matter is civil in nature. The refusal on the part of the police to assist the Plaintiff is in view of the fact that they are in collusion with the Defendants. The Defendants being strangers and having no title are required to be restrained from interfering with the peaceful possession and enjoyment of Plaintiff in respect of Schedule A Property. The Defendants are high ranking employees of the government and have the support of the officials as the Plaintiff is informed and hence the police are also being pressurized to assist the Defendants.
26. The Plaintiff submits that he has approached this Hon'ble Court at the earliest point of time. The Plaintiff has made out a prima facie case, and the balance of convenience lies in favour of the Plaintiff in the grant of an injunction in favour of the Plaintiff and against the Defendants. The injury complained of cannot be prevented without the assistance or intervention of this Hon'ble Court and if not prevented would cause irretrievable loss, irreparable injury, which cannot be, compensated interns of money and which would lead to the multiplicity of proceedings. The Plaintiff is presently unable to be present at all times and to safeguard his property from the Defendants who are only land grabbers, and hence the present suit.
27. The value of the suit for the purpose of court fee and jurisdiction is Rs. 1000/- and accordingly, the Plaintiff has paid Court Fee of Rs.25/- in accordance with the Karnataka Court Fees and Suits Valuation Act, 1958, as per the Valuation Slip annexed.
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RFA No. 369 of 202128. The cause of action for the above suit arose on 02.11.2018, when the Defendants 2 to 5 claiming the allottees of the Defendant No.1 interfered with the peaceful possession and enjoyment the Plaintiff of the Schedule Property and interfered with the construction over the Schedule Property, within the jurisdiction of this Hon'ble Court where the Schedule Property is situated and where the Parties are residing. The suit is filed in time.
29. The Plaintiff submits that there is no pendency of any proceedings either past or present within the knowledge of Plaintiffs concerning any part of the subject matter of the present suit on the same cause of action and against the Defendant before any Court or other authority.
PRAYER Wherefore, the Plaintiff prays that this Hon'ble Court be pleased to pass a Judgment and Decree in his favour and against the Defendants as under:
(a) Grant a decree of Perpetual Injunction restraining the Defendants 1 to 5, their agents, servants, employees, officers, henchmen, or any other person claiming either through, under or in trust for the Defendants 1 to 5 from interfering with the peaceful possession and enjoyment of the Plaintiff of the Schedule Property or the construction thereon;
(b) Pass an order as to the costs of the present suit; and
(c) Pass such order/orders as this Hon'ble court may deem fit to grant in the circumstances of the case including an order as to costs, in the interest of justice and equity.
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RFA No. 369 of 2021Schedule Property All that piece and parcel of the converted land bearing Sy.No.4, Bruhat Bangalore Mahanagara Palike Katha No.572/04, Ward No.3, situated at Chikkabetahalli Village, Yelahanka Hobli, Bangalore North Taluk measuring 12.12 Guntas [12 ¾ Guntas] equivalent to 13884.75 Square Feet converted from agricultural to non-agricultural residential purposes vide Official Memorandum bearing No.ALN[NAY]S.R-172/2016-2017, dated 04.10.2017, issued by the Deputy Commissioner, Bangalore District, Bangalore and bounded on the East by: Thindlu Village Boundary, West by: Road and remaining land in Sy.No.4; North by:
Remaining land in Sy.No.4; and South by: Remaining land in Sy.No.4.
6. A perusal of the plaint averments will clearly indicate that the plaintiff claims right, title, interest and possession over the suit schedule property and perpetual injunction restraining the respondents - defendants from interfering with his peaceful enjoyment of lawful possession of the suit schedule properties was sought for by the plaintiff.
7. In the backdrop of the plaint averments, a perusal of the impugned order passed by the trial court along with I.A.No.3 will clearly indicate that the trial court has failed to consider and appreciate the plaint averments in the light of the well settled
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principle of law governing Under Order 7 Rule 11 CPC and this has resulted in an erroneous conclusion. It is further relevant to state that in the facts and circumstances of the instant case, the trial court clearly fell in error in rejecting the plaint without even referring to the plaint averments or the documents produced by the plaintiff and on the other hand by referring to the other materials which are neither relevant nor germane for considering the application filed Under Order 7 Rule 11 CPC. The pleadings of the parties also indicate that several disputed questions of law and fact arise for consideration, which would be necessarily have to be decided only after the full fledged trial.
8. Under these circumstances, I am of the considered opinion that the impugned order passed by the trial court allowing I.A.No.3 is not only contrary to the material on record, but also opposed to the well settled principles of law governing rejection of the plaint and consequently, the impugned order deserves to be set aside and the matter be remitted back to the trial court for reconsideration afresh in accordance with law.
9. At this stage, learned counsel for the appellant as well as learned counsel for the respondents jointly submit that there are
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RFA No. 369 of 2021five other suits pending between the parties in relation to the subject matter of the present lis and in view of setting aside the impugned judgment and decree in the present suit and remitting the matter back to the trial court, it would just and appropriate to direct the trial court to dispose of all the 6 suits together in accordance with law.
10. The details of the five suits are as under:-
LIST OF CASES SL. CASES Nos. COURT HALL Next date of STAGE NO hearing
1. O.S.NO.2912/2017 XIX Addl.City Civil 23.03.2023 Plaintiff Evidence and Sessions Judge ( CCH-18)
2. O.S.NO.2914/2017 XIX Addl.City Civil 27.03.2023 Plaintiff Evidence and Sessions Judge (CCH-18 )
3. O.S.NO.2918/2017 XIX Addl.City Civil 27.03.2023 Plaintiff Evidence and Sessions Judge (CCH-18 )
4. O.S.NO.7107/2017 XLI Addl.City Civil and 24.03.2023 Objections to Sessions Judge I.A.1/2021 (CCH-42 )
5. O.S.NO.8098/2018 XX Addl.City Civil and R.F.A.No. Sessions Judge ----- 369/2021, allowed (CCH-32 ) on 09.03.2023
6. O.S.NO.3550/2020 XLI Addl.City Civil and 20.03.2023 Further Cross Sessions Judge Examination of (CCH-42 ) DW-1
11. In view of the aforesaid facts and circumstances of the case, I deem it just and appropriate to exercise my power under Article 227 of the Constitution of India r/w Section 24 of CPC and
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RFA No. 369 of 2021directed the trial court to dispose of all the 6 suits together in accordance with law.
12. In the result, I pass the following:-
ORDER
(i) The appeal is hereby allowed;
(ii) The impugned judgment and decree dated 13.01.2021 passed in O.S.No.8098/2018 on the file of XX Addl.City Civil and Sessions Judge, Bengaluru, whereby the application I.A.No.3 filed by respondents 2 to 5 - defendants 2 to 5 under Order 7 Rule 11 CPC is hereby set aside;
(iii) Consequently, the aforesaid suit in O.S.No.8098/2018 and the other suits in O.S.No.2912/2017, O.S.No.2914/2017, O.S.No.2918/2017, O.S.No.7107/2017 and O.S.No.3550/2020 are to be disposed of in accordance with law as expeditiously as possible.
(iv) All rival contentions between the parties in all the 6 suits are kept open and no opinion is expressed on the same.
Sd/-
JUDGE Srl.